Case 1:15-cv-02184-RM-NYW Document 1 Filed 10/01/15 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-2184 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff, v. THE FEDERAL BUREAU OF PRISONS,
Defendant. COMPLAINT
Plaintiff Prison Legal News (“PLN”) brings this action pursuant to the First and Fifth Amendments of the United States Constitution, the Administrative Procedure Act, and the Declaratory Judgment Act to obtain injunctive and declaratory relief related to the unlawful censorship of the publication Prison Legal News at the United States Penitentiary, Administrative Maximum Facility at Florence, Colorado (“ADX”). PLN alleges as follows:
INTRODUCTION 1. Prison Legal News is a monthly magazine consisting of writings from legal scholars, attorneys, inmates, and newswire services. Each month, Prison Legal News provides news about legal decisions affecting prisoners, and information designed to help prisoners navigate the judicial system. Prison Legal News has thousands of subscribers in the United States and abroad, including inmates in state and federal prisons in all fifty states. Currently, nineteen prisoners at ADX hold active subscriptions to Prison Legal News, some of whom have had subscriptions continuously for more than twenty years.

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2. PLN brings this action to address the government’s refusal to deliver numerous issues of Prison Legal News to inmate-subscribers at ADX. The censorship of these issues— which were often rejected based on public information about legal proceedings involving ADX inmates or personnel—lacks any rational relationship to security concerns or any other penological interest of ADX. Indeed, Prison Legal News often contains articles about Federal Bureau of Prisons (“BOP”) inmates and personnel around the country, yet ADX is the only BOP institution to reject an issue of Prison Legal News since 2012.
3. Further, the government has failed to provide timely and adequate notice to PLN of the rejections. PLN receives inadequate standard-form notices of rejection as many as nine months after the initial censorship, depriving PLN of its right to pursue prompt and meaningful appeals of the improper rejections.
4. These actions violate the First and Fifth Amendments to the U.S. Constitution, the Administrative Procedure Act, and BOP regulations.
5. For these reasons, PLN seeks, inter alia, (a) a declaration that the government’s actions described herein violate the First and Fifth Amendments to the U.S. Constitution and the Administrative Procedure Act, (b) an injunction compelling Defendant to deliver Prison Legal News to its subscribers incarcerated at ADX absent a legitimate penological interest supported by specific facts, and (c) an injunction compelling Defendant to provide timely and adequate notice of any future rejections and a process to appeal therefrom.
PARTIES 6. Plaintiff PLN is a project of the Human Rights Defense Center, a not-for-profit entity organized under the laws of the State of Washington and recognized as tax exempt under
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§ 501(c)(3) of the Internal Revenue Code. PLN is headquartered at 1013 Lucerne Ave, Lake Worth, FL 33460. PLN publishes Prison Legal News.
7. Defendant BOP is the federal government agency within the United States Department of Justice (“DOJ”) responsible for administering all federal correctional institutions, including ADX Florence, pursuant to 18 U.S.C. § 4042. References to “Defendant” include both BOP and its current and former agents.
JURISDICTION AND VENUE 8. This action arises under the First and Fifth Amendments of the U.S. Constitution and the Administrative Procedure Act (“APA”), 5 U.S.C. § 702. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702, and, to the extent the claims seek declaratory relief, pursuant to 28 U.S.C. §§ 2201 and 2202. 9. Venue properly lies in the District of Colorado pursuant to 28 U.S.C. § 1391(e) because (a) this action is brought against BOP, an agency of the United States, and (b) a substantial part of the events or omissions giving rise to the claims occurred in this district.
FACTUAL BACKGROUND Prison Legal News
10. PLN is a project of the Human Rights Defense Center, a not-for-profit entity organized under the laws of the State of Washington and § 501(c)(3) of the Internal Revenue Code.
11. PLN has published Prison Legal News, a softcover magazine, each month since May 1990.
12. Prison Legal News contains reviews and analysis of prisoners’ rights issues, reports on recent court decisions, and news relating to the criminal justice system. The
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publication helps inmates gain a better understanding of the legal issues affecting prisoners, and serves as a conduit to effective protection and enforcement of prisoners’ legal rights. See, e.g., Ex. A, Prison Legal News, July 2013.
13. Authors who have published in Prison Legal News include Noam Chomsky, Dan Savage, Ken Silverstein, Jennifer Vogel, and Noelle Hanrahan.
14. Prison Legal News has thousands of subscribers in the United States and abroad, including inmates in state and federal prisons in all fifty states. Inmates pay $30 per year for a 12-issue subscription to the magazine.
15. PLN also publishes and distributes a number of nonfiction reference books, including self-help legal resources designed for prisoners who are litigating their own cases and other educational resources such as the Prisoner Diabetes Handbook.
Prison Mail Policies 16. The BOP has adopted regulations for all of its facilities—including ADX—that permit “an inmate to subscribe to or receive publications without prior approval” except where prohibited by statute. 28 C.F.R. § 540.70 (2014). These regulations permit rejection of an incoming publication if the facility determines that it is “detrimental to the security, discipline, or good order of the institution or . . . might facilitate criminal activity.” Id.; see also BOP Prog. Statement 5266.10. At administrative facilities such as ADX, inmates may receive softcover publications, such as Prison Legal News, only if they are sent directly from a bookstore or publisher. 28 C.F.R. § 540.71(a)(2). 17. BOP regulations require the warden of a penal facility to “review the individual publication prior to rejection of that publication.” Id. § 540.71(c). 18. Upon rejection of a publication, the warden is required to “promptly advise the inmate of the decision and the reasons for it.” Id. § 540.71(d).
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19. The warden is also required to provide the “publisher or sender” with a copy of the rejection letter sent to the inmate. Id. § 540.71(e).
20. BOP regulations allow both inmates and publishers to appeal rejection decisions. Inmates may appeal rejections through the BOP’s Administrative Remedy Program, see id. § 542.10, while publishers have the right to “obtain an independent review of the rejection by writing to the Regional Director [of BOP] within 20 days of receipt of the rejection letter.” Id. § 540.71(e). The warden must return a rejected publication to its sender unless the inmate files for review. Id.
21. As discussed further below, Defendant has failed to follow, and indeed has repeatedly violated, BOP’s own policies and procedures with respect to issues of Prison Legal News sent to inmates at ADX.
ADX’s Censorship of Prison Legal News 22. Since January 2010, ADX wardens have rejected at least eleven issues of Prison Legal News in their entirety: January 2010, June 2010, October 2011, November 2011, June 2012, November 2012, February 2013, April 2013, July 2013, September 2013, and April 2014. 23. For each of the rejected issues, the ADX warden who rejected the issue signed a rejection notice. Each notice states that the issue “has been rejected in accordance with BOP Program Statement 5266.10, Incoming Publications, which states in part, ‘The Warden may reject a publication if it is determined detrimental to the security, good order, or discipline of the institution or if it may facilitate criminal activity.’” 24. Each notice then provides a single sentence purporting to identify the material that caused the issue to be censored. 25. For most of the issues, the rejection notices claim that the issue was censored due to content in Prison Legal News that refers to ADX inmates or ADX or other BOP personnel.
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However, the notices do not explain how such content is detrimental to the security, good order, or discipline of ADX. Instead, the rejections appear to treat any reference to any ADX inmate or staff member—current or former—as a security risk.
26. The content that forms the basis for these rejections consists of articles about legal proceedings or other newsworthy events pertaining to ADX or BOP, such as: (i) a report regarding lawsuits against ADX for the poor treatment of inmates (November 2012 issue); (ii) an article about developments in the legal options available to prisoners wishing to challenge their placement in ADX (February 2013 issue); (iii) an article about a court decision holding that a prisoner seeking to challenge his transfer to ADX must file an action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 304 U.S. 388 (1971), rather than a petition under 28 U.S.C. § 2241 (July 2013 issue); and (iv) a report on “former federal prison guards” sentenced for abusing prisoners (September 2013 issue). The information in these articles is highly relevant to, and potentially useful for, individuals incarcerated at ADX.
27. None of the content cited in the rejection notices constitutes a security risk at ADX.
28. The information about ADX inmates or BOP personnel in these issues is limited and often publicly available. For example, the July 2013 article concerning a decision by the U.S. Court of Appeals for the Tenth Circuit, requiring federal inmates to challenge their placement at ADX via Bivens actions, appears to have been rejected for identifying Jesus Hector Palma-Salazar, the plaintiff-prisoner who sought to challenge his transfer to ADX. See Ex. A, Prison Legal News, July 2013. The only personal information about Mr. Palma-Salazar disclosed in the article is the same information published by the Tenth Circuit: that he was indicted on drug cartel-related charges and had held a leadership role in the Sinaloa Cartel.
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29. The identity of prisoners at ADX and certain information about the prisoners, such as gang membership and offenses committed, is a matter of common knowledge within the prison. Indeed, prisoners often publicize such information via tattoos and other means.
30. In addition, much or all of this information is already available to prisoners at ADX through other sources. For example, prisoners at ADX have access to general-interest publications, television, and radio, including National Public Radio (NPR), USA Today, CNN, MSNBC, Fox News, and others. On information and belief, these media sources can and do reveal information about ADX and ADX inmates.
31. Prisoners at ADX also have use of a law library, which includes access to LexisNexis, an electronic service containing court decisions and filings. Published decisions in cases involving ADX inmates often contain the same information as the Prison Legal News articles rejected for reporting on such decisions. For example, the information about Mr. PalmaSalazar in the July 2013 issue was already publicly available in the published opinions on which the rejected articles were based. See Palma-Salazar v. Davis, 677 F.3d 1031 (10th Cir. 2012). On information and belief, ADX has not barred inmates from accessing this decision.
32. Similarly, the February 2013 issue includes an article about a Tenth Circuit ruling in a terrorism case where the court held that former ADX inmates did not have a liberty interest in avoiding transfer to ADX. See Ex. B, Prison Legal News, Feb. 2013. The article named the inmates involved in the lawsuit—Omar Rezaq, Mohammed Saleh, El-Sayyid Nosair and Ibrahim Elgabrowny—and indicated that they were no longer housed at ADX at the time of the court’s decision (or of the article’s publication). Id. As with the article discussing Mr. Palma-Salazar contained in the July 2013 issue, the information about the inmates contained in the February 2013 issue was also available in the published opinion on which the rejected article was based.
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See Rezaq v. Nalley, 677 F.3d 1001 (10th Cir. 2012). On information and belief, ADX has not barred inmates from accessing this decision.
33. Dubbed the “Alcatraz of the Rockies,” ADX is the highest-security prison in the United States. Prisoners at ADX are subject to numerous security measures, including at least the following: (a) small cells with no movable furniture, (b) approximately 23 hours of solitary confinement per day, (c) multiple correctional officers securing an inmate each time he is removed from his cell, (d) full shackling of inmates removed from their cells, (e) double doors between inmate cells and hallways, and (f) caged outdoor recreation areas. The extreme security measures at ADX eliminate or reduce any conceivable security risk posed by the content in Prison Legal News.
34. Despite these security measures, ADX is the only BOP facility to regularly reject Prison Legal News, and the only BOP facility to have rejected any issues of Prison Legal News since 2012.
35. The content cited in the rejection notices constitutes a fraction of the information in rejected issues of Prison Legal News. Each rejected issue of Prison Legal News, however, was rejected in its entirety. Accordingly, the rejection of entire issues of Prison Legal News has resulted in the censorship of significant amounts of admittedly unobjectionable content.
36. ADX made no effort to redact or remove the material to which ADX objected and deliver the unobjectionable portion to subscribers. Such redaction or removal of the allegedly objectionable material would not have imposed a significant burden on prison officials.
ADX’s Failure to Properly Notify PLN of Censored Issues 37. As noted above, ADX censored the November 2011 issue of Prison Legal News. On information and belief, ADX provided no notice to PLN of the rejected issue. PLN learned of the rejection only from letters that its inmate-subscribers sent to PLN.
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38. For the remaining rejected issues of Prison Legal News, PLN received notice letters from the ADX warden at the time. Some of these notices did not reach PLN until six to nine months after the rejection occurred.
39. As discussed above, the notices provide no explanation for why the cited content is purportedly detrimental to the security, discipline, or good order of ADX.
40. For example, the rejection notice for the September 2013 issue stated that the warden rejected Prison Legal News on the grounds that pages 18 and 20 “contain[ed] the names of former BOP staff members that have been sentenced.” On its face, the pages cited bear no connection to ADX or Florence, Colorado. The notice provides no explanation for why the content on these pages purportedly constitutes a threat to the “security, discipline, or good order of the institution.”
PLN’s Appeals of Rejection Notices 41. PLN has appealed at least four rejections, including the rejections of the June 2012, July 2013, September 2013, and April 2014 issues, to the BOP Regional Director for the North Central Region, which includes ADX. 42. Each PLN appeal offers a detailed argument that the rejection notices from ADX fail to satisfy the constitutional standard for providing notice of a rejection. 43. Moreover, each appeal includes a substantive argument for why the material should not have been rejected. 44. For example, in its appeal of the censorship of the July 2013 issue of Prison Legal News, PLN explained that “[w]ith respect to the content of the article itself that is the source of this controversy . . . it is a report of a published court opinion from the Tenth Circuit United
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States Court of Appeals that is presumably available to every prisoner in the facility in the facility’s law library.” Ex. C, Sept. 11, 2013, Letter from Lance T. Weber to Paul M. Laird.
45. Each appeal was rejected in a letter from the Regional Director reciting Program Statement 5266.11, which allows rejection of incoming publications that are “detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” None of the Regional Director’s letters provides specific reasoning for the rejection.
46. For example, the Regional Director’s letter upholding the rejection of the July 2013 issue of Prison Legal News stated that “[a]fter review, we find the publication was properly rejected as it contains information on individuals incarcerated at the U.S. Penitentiary Florence. This material is not suitable for issuance in a correctional environment.” Ex. D, Sept. 30, 2013, Letter from Paul M. Laird to Lance T. Weber. The letter provided no explanation or reasoning.
47. Upon receipt of BOP’s letter, PLN sent the Regional Director a follow-up letter, which requested an explanation of why reference to an ADX inmate’s name in connection with publically available information constituted a security risk. Ex. E, Oct. 9, 2013, Letter from Lance T. Weber to Paul M. Laird. The Regional Director’s response merely reiterated the applicable BOP regulation and stated that “[s]pecific inmate names, location housed, case details, and other information may pose a security concern.” Ex. F, Oct. 24, 2013, Letter from Paul M. Laird to Lance T. Weber (emphasis added). The letter provided no reasoning for how an inmate name “may” pose a risk to ADX security, especially where the inmate is the subject of a published court decision available to other inmates.
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Defendant’s Refusal to Stop the Illegal Censorship of Prison Legal News 48. On June 30, 2015, counsel for PLN sent a letter to the current warden of ADX, John Oliver; the BOP Regional Director for the North Central Region; the Director of BOP; and the Deputy Attorney General. 49. The letter explained, inter alia, that the rejections of entire issues of Prison Legal News at ADX, and the failure to provide timely and adequate notice of said rejections to PLN and its inmate-subscribers, have violated both the U.S. Constitution and the APA. The letter requested that BOP commit to stop the illegal censorship of Prison Legal News at ADX. 50. After further correspondence, Warden Oliver indicated that “future issues of Prison Legal News, that may contain personal information about an ADX inmate, will be more thoroughly reviewed to ensure information contained therein is not already available publicly through the Electronic Law Library or other federal publications.” However, Warden Oliver did not agree that any of the past censorship of Prison Legal News was improper, nor did he provide any explanation of why this publication purportedly constitutes a security risk at ADX. As of the filing of this Complaint, Defendant has not committed to stop the illegal censorship of Prison Legal News at ADX.
CLAIMS FOR RELIEF COUNT I
Censorship of Constitutionally Protected Speech in Violation of the First Amendment 51. PLN hereby reasserts and incorporates by reference all allegations contained in
paragraphs 1 through 50 of this Complaint. 52. Defendant’s actions, as alleged herein, constitute state action and agency action.
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53. Defendant has censored Prison Legal News, which contains speech protected by the First Amendment to the U.S. Constitution.
54. Defendant’s censorship of Prison Legal News is not rationally related to any legitimate and neutral government purpose. In particular, the allegedly objectionable information does not pose any risk to the security, discipline, or good order of ADX, particularly given the stringent security measures in place at ADX, and the fact that most or all of the information is already available or known to inmates at ADX.
55. Defendant’s rejection of Prison Legal News leaves PLN with no alternative means to publish important legal and other news to its subscribers at ADX.
56. Further, Defendant’s rejection of issues of Prison Legal News in their entirety results in the censorship of admittedly unobjectionable content. Defendant has an obvious and easy alternative to full censorship of Prison Legal News that does not pose a threat to the security or good order of ADX, namely redaction or removal of articles deemed objectionable.
57. There exists a substantial threat that the improper censorship of Prison Legal News at ADX will continue.
58. Defendant’s censorship causes ongoing and irreparable harm to PLN’s exercise of its constitutional rights, for which there is no adequate remedy at law.
COUNT II Failure to Provide Due Process in Violation of the Fifth Amendment 59. PLN hereby reasserts and incorporates by reference all allegations contained in paragraphs 1 through 58 of this Complaint. 60. Defendant’s actions, as alleged herein, constitute state action and agency action.
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61. In denying PLN its right to communicate with current and potential inmatesubscribers, Defendant has deprived PLN of constitutionally protected liberty and property interests.
62. Defendant has effected these deprivations without due process of law because they have failed to provide PLN with timely and adequate notice and an opportunity to be heard.
63. Specifically, where PLN has received rejection notices, those notices contain uninformative, perfunctory language that sheds little or no light on the reason for rejection. Insofar as the rejection notices contain no explanation regarding how the cited content undermines the safety or order of ADX, the notices do not provide sufficient detail to PLN (or its subscribers) to place it on notice of the reasons for the rejection and allow for any meaningful appeal.
64. Moreover, this failure to provide adequate notice violates the BOP’s own procedures governing incoming publications at federal correctional facilities, which require the warden to inform inmates and publishers of “the reasons for [rejection].” 28 C.F.R. § 540.71(d),(e); see also id. § 540.13 (requiring warden to inform inmate of rejection of any mail of “the reasons for the rejection . . .”).
65. The regulation requiring BOP to return rejected publications to their publisher rather than retain a rejected issue until the appeal process is complete (BOP Program Statement 5266.11 § 540.71 (a)(4)(d)) further impairs PLN’s ability to obtain a meaningful appeal and violates PLN’s due process rights, because the censored writing itself is unavailable for consideration by the Regional Director at the level of secondary review.
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66. The lack of specific regulations or guidelines governing the Regional Director’s review of censored material further impairs PLN’s ability to receive an independent review of rejected publications.
67. Defendant’s failure to provide PLN with constitutionally adequate notice each time Prison Legal News is censored violates PLN’s rights to due process of law as protected by the Fifth Amendment to the U.S. Constitution.
68. Defendant’s persistent failure to provide constitutionally adequate notice of the reasons for rejecting an issue is deliberate.
69. There exists a substantial threat that Defendant will continue to provide deficient notices for future censorship of Prison Legal News.
70. Defendant’s failure to provide adequate notice causes ongoing and irreparable harm to PLN’s constitutional rights, for which there is no adequate remedy at law.
COUNT III Violations of the Administrative Procedure Act 71. PLN hereby reasserts and incorporates by reference all allegations contained in paragraphs 1 through 70 of this Complaint. 72. The actions of Defendant discussed herein are final agency actions for which there is no other adequate remedy in a court. They are therefore subject to judicial review. 73. Defendant has violated the APA in at least five respects. 74. First, Defendant’s failure to provide timely notice of rejection—in some instances, sending notices six to nine months after an issue of Prison Legal News was delivered to ADX—constitutes arbitrary and capricious decision making and demonstrates the BOP’s failure to follow its own procedures in violation of the APA. For example, Defendant has failed
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to follow the BOP regulation requiring the warden to “promptly advise the inmate in writing of the decision [to reject a publication] and the reasons for it,” 28 C.F.R. § 540.71(d) (emphasis added), and to send a copy of such notice to the publisher, id. § 540.71(e).
75. Second, Defendant’s failure to provide adequate reasons for rejection, both in initial rejection notices and in appeals decisions, constitutes arbitrary and capricious decision making and demonstrates the BOP’s failure to follow its own procedures in violation of the APA. For example, Defendant has failed to follow the BOP regulation requiring the warden to inform inmates and publishers of “the reasons for [rejection].” 28 C.F.R. § 540.71(d),(e); see also id. § 540.13 (requiring warden to inform inmate of rejection of any mail of “the reasons for the rejection”). Specifically, Defendant has failed to articulate specific facts rationally supporting the premise that purportedly objectionable content is “detrimental to the security, good order, or discipline of the institution,” especially in the uniquely restrictive environment of a maximum-security facility such as ADX. Mere recitation of the regulation does not inform PLN—or its inmate-subscribers—of the actual reasons for a given rejection.
76. Third, Defendant’s censorship of entire issues of PLN’s publication based on a single line or two of supposedly objectionable material constitutes arbitrary and capricious decision making in violation of the APA.
77. Fourth, Defendant’s censorship of entire issues of PLN’s publication based on supposedly objectionable material that is readily available to inmates through other channels is arbitrary and capricious decision making in violation of the APA.
78. Fifth, Defendant’s censorship of an entire issue of PLN’s publication supposedly based on references to ADX inmates or staff, where there is no discernible connection to ADX, constitutes arbitrary and capricious decision making in violation of the APA.
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79. There exists a substantial threat that such unlawful actions will continue. 80. Defendant’s actions cause ongoing and irreparable harm to PLN, for which there is no adequate remedy at law. 81. The foregoing conduct should be held unlawful and set aside.
PRAYER FOR RELIEF WHEREFORE, PLN respectfully requests that this Court grant the following relief: A. A declaration that Defendant’s censorship of Prison Legal News under 28 C.F.R.
§ 540 and lack of due process regarding such censorship violates the First and Fifth Amendments to the U.S. Constitution and the APA; B. Permanent injunctive relief compelling Defendant and its agents to deliver (i) all past issues of Prison Legal News that have been previously censored and withheld from PLN’s subscribers at ADX, and (ii) all future issues of Prison Legal News absent a legitimate penological interest supported by specific facts; C. Permanent injunctive relief requiring Defendant and its agents, as to any future issues that are censored, (i) to provide PLN with timely, individualized, specific, and detailed notice that includes an explanation of why the article(s) or page(s) in question are subject to censorship under 28 C.F.R. § 540, (ii) to provide PLN with timely opportunity to be heard and contest the decision each time PLN’s publication is censored, and (iii) to retain censored issues of Prison Legal News until either the resolution of PLN’s appeals to the Regional Director or until the time for appeal has expired, whichever is later; D. An award to PLN of its costs and attorneys’ fees arising out of this litigation pursuant to 28 U.S.C. § 2412(d); and
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E. Such other and further relief as the Court deems just and equitable. DATED: October 1, 2015
Respectfully Submitted,

Lance Weber (Admission Pending) Sabarish Neelakanta (Admission Pending) Human Rights Defense Center PO Box 1151 Lake Worth, Florida 33460 Telephone: (561) 360-2523 Email: lweber@humanrightsdefensecenter.org sneelakanta@humanrightsdefensecenter.org
Of Counsel:
Elliot Mincberg Washington Lawyers’ Committee for Civil Rights & Urban Affairs 11 Dupont Circle NW Suite 400 Washington, DC 20036 Telephone: (202) 319-1000 Email: elliot_mincberg@washlaw.org

s/ Steven D. Zansberg Steven D. Zansberg Levine Sullivan Koch & Schulz LLP 1888 Sherman Street, Suite 370 Denver, CO 80203 Telephone: (303) 376-2409 FAX: (303) 376-2401 E-mail: szansberg@lskslaw.com
Peter A. Swanson Addar Weintraub Matthew S. Shapanka Covington & Burling LLP One CityCenter 850 Tenth Street NW Washington, DC 20001 Telephone: (202) 662-6000 FAX: (202) 662-6291 E-mail: pswanson@cov.com
aweintraub@cov.com mshapanka@cov.com
David M. Shapiro (Admission Pending) Northwestern University School of Law 375 E. Chicago Avenue Chicago, IL 60611 Telephone: (312) 503-0711 Email: david.shapiro@law.northwestern.edu

Attorneys for Plaintiff Prison Legal News

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 Case 1:15-cv-02184-RM-STV Document 62 Filed 02/23/17 USDC Colorado Page 1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02184-RM-STV PRISON LEGAL NEWS, a project of the Human Rights Defense Center,
Plaintiff, v. FEDERAL BUREAU OF PRISONS,
Defendant. ______________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________ Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendant’s Motion to Dismiss [#31] and Motion to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines [#34] (“Motion to Stay”). Both motions were originally referred to Magistrate Judge Nina Y. Wang [#32, 35], then reassigned to this Court [#44]. This Court has carefully considered the motions and related briefing, oral argument held on February 17, 2017, the case file and the applicable case law. For the following reasons, I DENY the Motion to Stay and respectfully RECOMMEND that the Motion to Dismiss be DENIED.
I. FACTUAL BACKGROUND Plaintiff Prison Legal News (“PLN”) is a project of the Human Rights Defense
Center, a not-for-profit entity organized under the laws of the State of Washington. [#1, ¶ 6] According to the Complaint, PLN publishes Prison Legal News, a monthly magazine that provides news about legal decisions affecting prisoners and information
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designed to help prisoners navigate the judicial system. [Id. at ¶¶ 1, 6] Prison Legal News has thousands of subscribers, including nineteen inmates at the United States Penitentiary – Administrative Maximum Facility at Florence, Colorado (“ADX”) as of the filing of the Complaint. [Id. at ¶ 1] ADX is the highest security prison in the United States. [Id. at ¶ 33]
Defendant Federal Bureau of Prisons (“BOP”) is the federal agency responsible for administering all federal correctional institutions, including ADX. [Id. at ¶ 7] BOP has adopted regulations for all of its facilities, including ADX, permitting inmates to subscribe to or receive publications without prior approval, except where prohibited by statute. [Id. at ¶ 16 (citing 28 C.F.R. § 540.70)] The regulations permit rejection of an incoming publication if the facility determines that the publication is “detrimental to the security, discipline, or good order of the institution or . . . might facilitate criminal activity.” [Id.; see also 28 C.F.R. § 540.71(b)]
BOP regulations set forth certain steps that the Warden must undertake with respect to the rejection of any publication. First, the Warden must “review the individual publication prior to rejection of that publication.” [Id. at ¶ 17 (citing 28 C.F.R. § 540.71(c))] Second, upon rejection of the publication, the Warden must “promptly advise the inmate [in writing] of the decision and the reasons for” the rejection. [Id. at ¶ 18 (citing 28 C.F.R. § 540.71(d))] Finally, the Warden must provide the “publisher or sender” with a copy of the rejection letter sent to the inmate. [Id. at ¶ 19 (citing 28 C.F.R. § 540.71(e))]
BOP regulations allow both inmates and publishers to appeal rejection decisions. [Id. at ¶ 20] While inmates may appeal rejections through the BOP’s Administrative
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Remedy Program, publishers have the right to “obtain an independent review of the rejection by writing to the Regional Director [of BOP] within 20 days of receipt of the rejection letter.” [Id. at ¶ 20; see also 28 C.F.R. § 540.71(d, e)] Unless an inmate files for review, the Warden must return a rejected publication to its sender. [Id.; see also 28 C.F.R. § 540.71(e)]
The instant litigation arises out of the rejection by ADX Wardens of at least eleven issues of Prison Legal News between January 2010 and April 2014. [Id. at ¶ 22] The issues were rejected in their entirety. [Id.] For each, the Warden who rejected the issue signed a rejection notice stating that the issue “has been rejected in accordance with BOP Program Statement 5266.10, Incoming Publications, which states in part, ‘The Warden may reject a publication if it is determined detrimental to the security, good order, or discipline of the institution or if it may facilitate criminal activity.’” [Id. at ¶ 23] “Each notice then provides a single sentence purporting to identify the material that caused the issue to be censored.” [Id. at ¶ 24] According to the Complaint, for most of the rejected issues, the notices claim that the issue was censored due to references in the magazine “to ADX inmates or ADX or other BOP personnel” but do not give any further description of how that content “is detrimental to the security, good order or discipline of ADX.” [Id. at ¶ 25] Instead, the rejections “appear to treat any reference to any ADX inmate or staff member—current or former—as a security risk.” [Id.]
The content that forms the basis for the rejections consists of articles about legal proceedings or other events pertaining to ADX or BOP. [Id. at ¶ 26] With respect to the information about ADX inmates and staff, such information “is limited and often publicly available.” [Id. at ¶ 28] “[M]uch or all of this information is already available to prisoners
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at ADX through other sources,” such as general-interest publications, television and radio. [Id. at ¶ 30] Inmates at ADX also have access to a law library, which includes access to an electronic service containing court decisions and filings. [Id. at ¶ 31]
According to the Complaint, ADX did not provide notice of its rejection of the November 2011 issue of Prison Legal News to PLN. [Id. at ¶ 37] With respect to the remaining issues that were rejected, PLN did receive rejection notice letters, but some of those notices did not reach PLN until six to nine months after the rejection occurred. [Id. at ¶ 38] PLN appealed at least four of these rejections. [Id. at ¶ 41] Each appeal was rejected by the Regional Director reciting Program Statement 5266.11, which allows rejection of incoming publications that are “detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” [Id. at ¶ 45] None of the Regional Director’s letters provides specific reasoning for the rejection. [Id.]
On October 1, 2015, PLN filed its Complaint in this action. [#1] Count One alleges censorship of constitutionally protected speech in violation of the First Amendment. [Id. at ¶¶ 51-58] Count Two alleges failure to provide due process in violation of the Fifth Amendment. [Id. at ¶¶ 59-70] Count Three alleges violations of the Administrative Procedure Act (“APA”). [Id. at ¶¶ 71-81] The Complaint seeks declaratory and injunctive relief, as well as costs and attorneys’ fees. [Id. at 16]
On July 27, 2016, BOP filed its Motion to Dismiss. [#31] In it, BOP argues that a change in ADX’s procedures renders PLN’s claims moot. [Id. at pp. 6-12] In support, BOP attaches the Declaration of Todd Chapman, BOP’s Executive Assistant at ADX. [#31-1, ¶ 1] In this Declaration, Mr. Chapman states that, pursuant to BOP Program Statement 5266.11, “only the Warden may reject an incoming publication. In the
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Warden’s absence, only the Acting Warden may perform this function.” [Id. at ¶ 6] When the Warden determines that a publication’s content includes materials that should be rejected, the entire publication is withheld, “even if the basis for the rejection is one article in a magazine or only a few pages in a book or other publication.” [Id. at ¶ 7]
Mr. Chapman further explains that ADX has in effect an institution supplement that more fully implements federal regulations and national policy regarding incoming publications at ADX. [Id. at ¶ 12] Prior to February 2, 2016, an incoming publication was x-rayed and searched by ADX mailroom personnel. [Id. at ¶ 14] If a mailroom officer questioned whether a particular publication might include unacceptable content, the officer forwarded the publication to the ADX Case Management Coordinator for review. [Id.] If the Case Management Coordinator determined that the publication should be recommended for rejection, he or she prepared a draft rejection notice for the Warden’s signature. [Id.]
On February 2, 2016, the current ADX institution supplement regarding incoming publications was issued. [Id. at ¶ 16] Under the current supplement, ADX mailroom personnel continue to x-ray and search incoming publications to identify potentially objectionable content. [Id. at ¶ 17] But, if potentially objectionable material is discovered, mailroom personnel now forward the material to the ADX Special Investigative Services (“SIS”) Department for additional review. [Id.] SIS personnel have expertise in assessing potential security risks. [Id.] SIS Department, rather than the Case Management Coordinator, decides whether to recommend rejection of the publication to the Warden. [Id. at ¶ 18] When SIS Department recommends rejection, SIS personnel draft a notice of rejection for the Warden’s signature. [Id.] Prior to the
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rejection notice being given to the Warden, however, SIS Department forwards the completed rejection recommendation packet to the Legal Services Department for review. [Id. at ¶ 19] The rejection letter is only provided to the Warden if the Legal Services Department concurs in the rejection. [Id.] As part of the new procedure, the Legal Services Department provides quarterly training to BOP personnel involved in the publication review process. [Id. at ¶ 20]
Prior to the new procedure, ADX would reject a publication solely because it identified and discussed ADX or BOP inmates or staff members. [Id. at ¶ 24] Since the new procedure was implemented, however, no publication has been rejected solely because it discussed an ADX or BOP inmate or staff member. [Id. at ¶ 22] In his Declaration, Mr. Chapman asserts that “ADX will not utilize the fact that a publication discusses an ADX or [BOP] inmate, or [BOP] staff member, standing alone, as a basis for the Warden to find that the incoming publication” should be rejected. [Id. at ¶ 25]
Since the adoption of the new policy, the Warden has rejected fewer publications. [Id. at ¶¶ 21 & 23] ADX did not reject any issues of Prison Legal News in 2015 and had not rejected any issues in 2016 as of the time of filing of the Motion to Dismiss. [Id. at ¶¶ 22 & 23] Because the eleven previously rejected issues of Prison Legal News were rejected because they discussed an ADX or BOP inmate or staff member, the Warden has now determined that all of those issues could be provided to the inmate subscribers. [Id. at ¶ 28]
Nine days after filing the Motion to Dismiss, BOP filed the Motion to Stay. [#34] In it, BOP argues that the Court should determine its jurisdiction and whether PLN has adequately pleaded a plausible claim before the parties proceed to discovery. [Id. at p.
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1] BOP argues that the five-factor test set forth in String Cheese Incident, LLC v. Stylus Shows, Inc., No. 1:02-cv-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006), compels staying the matter.
Briefing on these motions was halted for several months as the parties attempted to reach a settlement. [#47, 51] Those efforts were unsuccessful. Thus, on January 30, 2017, PLN filed its Memorandum in Opposition to the Motion to Dismiss [#55] and its Memorandum in Opposition to the Motion to Stay [#56]. On February 13, 2017, BOP filed its Reply in Support of its Motion to Dismiss [#59] and its Reply in Support of its Motion to Stay [#60].
Attached to its Reply in Support of its Motion to Dismiss, BOP attached a Declaration of Jack Fox, ADX’s current Warden. [#59-1] In it, Warden Fox stated that from July 12, 2016 through December 2016, ADX has rejected 19 incoming publications out of approximately 9,000 incoming publications received. [Id. at ¶ 6] Moreover, ADX has not rejected a single issue of Prison Legal News since April 2014. [Id. at ¶ 10]
Warden Fox reaffirmed that BOP has changed its past practice of rejecting a publication solely because it identifies and discusses an ADX or BOP inmate or staff member. [Id. at ¶ 11] Warden Fox further confirmed ADX’s continued quarterly training sessions. [Id. at ¶ 12] Training packets now contain an explicit statement that “[a]n incoming publication at the ADX may not be rejected solely because it discusses an ADX or [BOP] inmate, or [BOP] staff member.” [Id. at ¶ 16] Warden Fox concludes his declaration by stating that “ADX is committed to the current incoming publication review procedures, and the ADX will not utilize the fact that an incoming publication discusses an ADX or [BOP] inmate, or [BOP] staff member, standing alone, as a basis to find that
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the incoming publication is ‘detrimental to the security, good order, or discipline of the institution or . . . might facilitate criminal activity.’” [Id. at ¶ 17 (citing 28 C.F.R. § 540.71(b))] II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
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v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). III. ANALYSIS – MOTION TO DISMISS
BOP has moved to dismiss the Complaint (or portions thereof) on two grounds. First, BOP argues that the change in the ADX institution supplement moots Count One, thereby depriving the Court of subject matter jurisdiction with respect to that Count. Second, BOP argues that the Complaint fails to state a claim upon which relief can be granted. The Court addresses each argument below.
A. BOP’s mootness arguments BOP makes two independent, though related, mootness arguments. First, BOP argues that the change in the ADX institution supplement renders Count One constitutionally moot. Second, BOP argues that, even if Count One is not constitutionally moot, the Court should withhold relief pursuant to the prudentialmootness doctrine. The Court does not find either argument compelling.
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1. Constitutional mootness “Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). “Two related doctrines, standing and mootness, keep federal courts within their constitutional bounds.” Brown v. Buhman, 822 F.3d 1151, 1163 (10th Cir. 2016). “Standing concerns whether a plaintiff’s action qualifies as a case or controversy when it is filed; mootness ensures it remains one at the time a court renders its decision.” Id. “The Supreme Court has described mootness ‘as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” Id. at 1163-64 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)). “A ‘suit becomes moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’” Id. at 1165 (quoting Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013)). “[T]he case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Id. (quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013)). “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Id. at 1165-66 (quoting Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005)). “Put another way, a case becomes moot when a plaintiff no longer suffers actual injury that can be redressed by a favorable judicial decision.” Id. at 1166 (quoting Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015)). “When prospective equitable relief is requested, the requesting party must show an ongoing, personal stake in the outcome of the controversy, a likelihood of substantial
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and immediate irreparable injury, and the inadequacy of remedies at law.” Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief.” Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). In a declaratory relief action, “a plaintiff must be seeking more than a retrospective opinion that he was wrongly harmed by the defendant.” Id. (quoting Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011)).
Courts recognize two “exceptions” to the mootness doctrine. See Brown, 822 F.3d at 1166. Of relevance to the instant litigation is the exception for “voluntary cessation” of the defendant’s conduct. See id.1 “Under this exception, ‘voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.’” Id. (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, __, 132 S. Ct. 2277, 2287 (2012)). Courts “view voluntary cessation ‘with a critical eye,’ lest defendants manipulate jurisdiction to ‘insulate’ their conduct from judicial review.” Id. (quoting Knox, 132 S. Ct. at 2287).
While viewed with a critical eye, voluntary cessation may moot a case “if the defendant carries ‘the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. (quoting Already, 133 S. Ct. at 727). Voluntary actions will moot litigation if two conditions are satisfied: “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Rio Grande Silvery Minnow
1 The other exception involves disputes that are “capable of repetition, yet evading review.” Id.
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v. Bureau of Reclamation, 601 F.3d 1096, 1115 (10th Cir. 2010) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “The party asserting mootness bears the heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again.” Id. at 1116 (quotations omitted).
In practice, however, this “heavy burden frequently has not prevented governmental officials from discontinuing challenged practices and mooting a case.” Id. “[T]he withdrawal or alteration of administrative policies can moot an attack on those policies.” Id. at 1117 (quotations omitted). Indeed, “the ‘mere possibility’ that an agency might rescind amendments to its actions or regulations does not enliven a moot controversy.” Id. (quoting Ala. Hosp. Ass’n v. Beasley, 702 F.2d 955, 961 (11th Cir. 1983)). Rather, “[a] case cease[s] to be a live controversy if the possibility of recurrence of the challenged conduct is only a speculative contingency.” Id. (quotations omitted).
Applying these standards, the Court cannot conclude that the February 2016 change in the ADX institution supplement renders Count One constitutionally moot. The February 2016 change does not have any impact on many of the violations alleged in Count One of the Complaint.2 For example, PLN alleges that BOP’s “rejection of issues of Prison Legal News in their entirety results in the censorship of admittedly unobjectionable content.” [#1 at ¶ 56] Count One further alleges that BOP “has an obvious and easy alternative to full censorship of Prison Legal News that does not pose a threat to the security or good order of ADX, namely redaction or removal of articles deemed objectionable.” [Id.] Thus, the Complaint clearly challenges BOP’s policy of
2 At oral argument, BOP conceded that Count One must be considered as a whole and that the Court should not engage in attempts to determine whether certain aspects of Count One were moot while others were not.
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rejecting an entire publication when any portion of that publication is deemed objectionable, a policy that impacted PLN’s publications eleven times. The February 2016 change does not purport to affect that policy. [#31-1 (describing both written and informal changes); 31-3 (February 2, 2016 ADX Institution Supplement)] Indeed, in its Motion to Dismiss, BOP argued ADX’s practice of withholding entire publications is constitutionally permissible. [#31 at 12-13]
Similarly, the Complaint challenges BOP’s rejection of certain material that reported on publicly available information. [#1 at ¶ 28] The Complaint further challenges BOP’s rejection of certain material that was “a matter of common knowledge within the prison.” [Id. at ¶ 29] PLN alleges that BOP’s censorship is not rationally related to any legitimate and neutral government purpose, particularly because “most or all of the information is already available or known to inmates at ADX.” [Id. at ¶ 54]
The February 2016 change does not affect BOP’s alleged practice of censoring certain publications based upon information that is publicly available or otherwise already known to inmates. Although Warden Fox testified under penalty of perjury that ADX will no longer reject an incoming publication solely because it identifies and discusses an ADX or BOP inmate or staff member [#59-1, ¶ 17],3 Warden Fox has not agreed not to censor publications that contain only publicly available information or information already commonly known within ADX. Instead, Warden Fox states that “[t]he fact that information may be publicly available, or even available to an inmate by means of the prison’s Electronic Law Library, does not automatically mean that it is also 3 Nothing in the February 2016 institution supplement itself prohibits ADX from rejecting a publication solely because that publication mentions ADX inmates or staff. [Id., ¶ 19] The written changes encompassed in that institution supplement only affect ADX’s procedures for reviewing publications. [Id.; see also #31-3]
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suitable for introduction into a maximum security institution in the form of an incoming publication that highlights the information.” [Id., ¶ 18] Moreover, Mr. Chapman has stated that he believes that at least three of the previously censored Prison Legal News publications could still be censored under the new policy. [#55-2 at 60:15-18; 72:3-21; 80:5-22]
Brown, relied upon heavily by BOP, is readily distinguishable. In Brown, plaintiffs formed a “plural family,” arguably in violation of Utah’s bigamy statute. 822 F.3d at 1155. After the Lehi Police Department opened an investigation of the plaintiffs for violation of the bigamy statute, the plaintiffs filed a 42 U.S.C. § 1983 action in federal district court against the Governor and Attorney General of the State of Utah and the Utah County Attorney. Id. The plaintiffs sought declaratory relief and a permanent injunction enjoining enforcement of the bigamy statute against them. Id.
The district court dismissed the Governor and Attorney General. Id. The Utah County Attorney’s Office (“UCAO”) subsequently closed its file on the plaintiffs and adopted a “formal office policy” (the “UCAO Policy”) that it would only bring bigamy prosecutions in two limited circumstances, neither of which applied to the plaintiffs. Id. at 1159. The County Attorney himself filed a declaration with the District Court stating that the UCAO “ha[d] concluded its investigation of the [plaintiffs] and ha[d] determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the [plaintiffs] in Utah County as of the date of this declaration.” Id. The County Attorney further declared that the criminal case was closed and that no charges would be filed against the plaintiffs for bigamy “unless new evidence is discovered which would comport with the [UCAO Policy] pertaining to the prosecution of
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bigamy crimes.” Id. The district court concluded that the County Attorney had “found no evidence of any crime by the [plaintiffs].” Id. Nonetheless, the District Court refused to dismiss as moot the Complaint against the County Attorney. Id.
On appeal, the Tenth Circuit reversed the District Court’s mootness determination. Id. at 1178. According to the Tenth Circuit, plaintiffs did not face a credible threat of prosecution. Id. at 1170. The Tenth Circuit reasoned that the plaintiffs did not fall within the category of individuals that could be prosecuted under the UCAO Policy. Id. Thus, plaintiffs would only be prosecuted if the UCAO abandoned that policy. But, the County Attorney had “declared under penalty of perjury” that the plaintiffs would not be prosecuted based upon their known conduct. Id. Thus, the Tenth Circuit concluded that to find the voluntary cessation exception applicable, it “would have to conclude the highest-ranking law enforcement official in Utah County had engaged in deliberate misrepresentation to the court.” Id. The Tenth Circuit found no basis for such a conclusion. Id.
Thus, in Brown, the only way that plaintiffs could face the prosecution they sought to enjoin would be for the County Attorney to reverse an official written policy in contravention of his sworn statement. Here, however, the policy currently in place would not prohibit BOP from rejecting PNL publications on the same allegedly unconstitutional grounds previously utilized to reject PNL publications. BOP retains its policy of rejecting publications in their entirety rather than making any attempt to censor only the objectionable content and remains free to censor publications based upon publicly-available information and information already known or available to inmates at ADX. Although BOP has agreed to allow the previously rejected publications to be
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distributed, it has not made any representation with regard to whether or not future editions of Prison Law News containing similar content would be rejected.4 Such rejections would in no way contravene the sworn declarations of Warden Fox or Mr. Chapman. Indeed, as discussed earlier, Mr. Chapman testified that, in his view, at least three of the rejected PLN publications should be censored under the current policy. As a result, this case presents a very different situation from that in Brown and BOP has not satisfied its heavy burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. Accordingly, the Court RECOMMENDS denying BOP’s Motion to Dismiss the Complaint to the extent it argues that the claims are constitutionally moot.
2. Prudential Mootness Alternatively, BOP argues that Count One is prudentially moot. [#31 at 11-12] “Even if a case is not constitutionally moot, a court may dismiss the case under the prudential-mootness doctrine if the case ‘is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.’” Rio Grande Silvery Minnow, 601 F.3d at 1121 (emphasis added) (quoting Fletcher v. United States, 116 F.3d 1315, 1321 (10th Cir. 1997)). Prudential mootness “addresses not the power to grant relief, but the court’s discretion in the exercise of that power.” See Jordan v. Sosa, 654 F.3d
4 As PLN points out, that BOP permitted the previously rejected publications to be distributed two to seven years after their original publication “does nothing to ensure that similar content [will] be delivered in the future.” [#55 at 9] It may be that the previously rejected issues were permitted to be distributed, at least in part, as a result of the passage of time rather than pursuant to the change in policy. Notably, Warden Fox, who apparently made the determination that the issues could now be provided to the inmate subscribers [#31-1, ¶ 28], did not offer any testimony regarding the previously rejected issues.
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1012, 1023 (10th Cir. 2011) (emphasis in original) (quotations omitted). The “central inquiry” with respect to both prudential mootness and constitutional mootness is essentially the same: “have circumstances changed since the beginning of litigation that forestall any occasion for meaningful relief.” S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997).
Here, BOP’s arguments as to prudential mootness largely track its arguments on constitutional mootness. BOP argues that it “has done everything that it can do to address PLN’s complaint” and that there is no likelihood that ADX will recommence the challenged conduct. [#31 at 11-12] As outlined above, however, many of PLN’s complaints have not been affected in any way by the changed policies. Accordingly, the Court finds the prudential mootness doctrine inapplicable, and RECOMMENDS denying the Motion to Dismiss to the extent it relies upon prudential mootness.
B. BOP’s failure to state a claim arguments BOP also argues that the Complaint fails to state a plausible claim for relief. With respect to Count One, BOP argues that Count One’s challenge to BOP’s policy of rejecting an entire publication when only a portion of that publication is objectionable fails to state a claim. [#31, pp. 12-13] With respect to Count Two, BOP argues that PLN was given the required notice and opportunity to be heard, thereby satisfying the minimum due process requirements. [Id. at pp. 13-19] Finally, with respect to Count Three, BOP argues that PLN’s APA claim is based on the same alleged violations as set forth in Counts One and Two and thus fails for the same reasons. [Id. at 19-20] The Court addresses each of these arguments below.
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1. Count One adequately alleges a plausible First Amendment claim Citing Thornburgh v. Abbott, 490 U.S. 401 (1989), BOP’s Motion argued that the Supreme Court has already approved BOP’s “all-or-nothing” approach whereby entire publications may be rejected if any portion of the publication is found offensive. [#31, p. 13] BOP thus argued that “[a]ny claim contending that the BOP’s practice of rejecting publications in their entirety violates the First Amendment fails, as a matter of law. The Court should dismiss it.” [Id.] In its Reply, BOP withdrew this argument to the extent it relied upon Thornburgh.5 [#59 at 12] Nonetheless, BOP argues in its Reply that “PLN’s two allegations concerning the supposed ease with which the ADX can remove or redact material in a publication would not state a plausible claim in any event.” [Id. at 13] BOP argues that the Complaint’s allegations that redactions would be “easy” and not present “a significant burden” are conclusory. [Id.] Moreover, BOP argues that these allegations fail to “take into account the additional burdens of redacting or tearing apart publications in the context here: the operation of the most secure prison in the BOP.” [Id.] Initially, it is not entirely clear what BOP is asking the Court to dismiss through this argument. BOP’s failure to state a claim argument with respect to Count One addresses only the allegations related to BOP’s all-or-nothing policy. Count One, however, alleges a much broader violation of the First Amendment. Count One alleges that BOP is rejecting publications that do “not pose any risk to the security, discipline, or good order of ADX, particularly given the stringent security measures in place at ADX,
5 As noted above, at oral argument, BOP argued that Count One must be considered as a whole and thus that the Court should not independently evaluate individual aspects of the First Amendment claim. See supra note 2.
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and the fact that most or all of the information is already available or known to inmates at ADX.” [#1, ¶ 54] BOP’s Motion to Dismiss for failure to state a claim does not even address this portion of Count One and, as a result, dismissal of Count One in its entirety would be inappropriate.
To the extent that BOP is only asking the Court to dismiss Count One to the extent Count One challenges BOP’s all-or-nothing policy, the Court agrees with PLN that the Complaint adequately alleges a cause of action. To the extent that BOP argues that Count One is conclusory because PLN fails to describe how the allegedly “easy” redaction could be accomplished, that argument fails. It is clear from the Complaint that PLN is stating that BOP could simply remove the offending portions and allow the remainder of the publication to go to the inmates. [Id. at ¶¶ 35-36]
To the extent that BOP is arguing that such redactions are not easy and the Complaint fails to adequately account for the burdens that BOP officials would face in making such redactions, this argument is premature. On this point, Thornburgh is instructive. In Thornburgh, federal prisoners brought both a facial challenge to the BOP publication regulations, and an as-applied challenge to those regulations as they related to 46 specific publications. Thornburgh, 490 U.S. at 403. After a 10-day bench trial, the district court upheld the regulations without addressing the propriety of the 46 specific exclusions. Id. The Court of Appeals, on the other hand, found the regulations wanting and remanded the case to the district court for an individualized determination of the constitutionality of the 46 exclusions. Id. at 403-04. The Supreme Court reversed, concluding that the regulations were facially valid. Id. at 404. But, the Supreme Court
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agreed with the Court of Appeals’ remand to the district court for a determination of the validity of the regulations as applied to each of the 46 publications. Id.
With respect to the all-or-nothing rule, the Supreme Court found that the rule was facially valid. In reaching this conclusion, the Supreme Court relied on the district court’s finding that “on the basis of testimony in the record, [] petitioners’ fear that tearing out the rejected portions and admitting the rest of the publication would create more discontent than the current practice was ‘reasonably founded.’” Id. at 418-19. In the Supreme Court’s view, “when prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succeed in demonstrating that the alternative they in fact selected was not an ‘exaggerated response’ under [Turner v. Safley, 482 U.S. 78 (1987)].” Id. at 419. As indicated above, however, the Supreme Court only upheld the regulations against the facial challenge and remanded to the district court for consideration of the constitutionality of the regulations as applied to the 46 exclusions. Id. at 404. The Thornburgh decision thus makes clear that prison officials must come forward with evidence “to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears” to defend against challenges to the all-or-nothing policy. As such, PLN’s challenge to the all-or-nothing policy is not appropriate for resolution at this stage.
Other Supreme Court and Tenth Circuit jurisprudence also support a denial of BOP’s Motion to Dismiss the challenge to the all-or-nothing policy. In Turner, the Supreme Court explained that, to be valid, “a prison regulation [which] impinges on inmates’ constitutional rights . . . [must be] reasonably related to legitimate penological
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interests.” Turner, 482 U.S. at 89. In answering this question, the Supreme Court has directed lower courts to consider a number of factors, including “the absence of ready alternatives” to the prison regulation. Id. at 90. While prison officials “do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint, . . .if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 90-91. Here, Plaintiff’s complaint adequately sets forth a proposed alternative - i.e., redaction. A determination of whether that alternative can be achieved at de minimis cost to valid penological interests is not one that can be made at a motion to dismiss stage.
Similarly, in Shabazz v. Parsons, 127 F.3d 1246 (10th Cir. 1997), decided eight years after Thornburgh, the Tenth Circuit addressed an inmate’s challenge to the all-ornothing rule. There, following an earlier remand by the Tenth Circuit, the magistrate judge directed the parties to supplement the record on the narrow question of “whether any rational basis existed for denying entire issues of the magazine Muhammad Speaks to the Plaintiff, rather than simply redacting the offending portions.” Id. at 1249. The defendants “offered evidence showing that the costs to implement such a procedure would be prohibitive, and that the procedure would prevent the prisoner from obtaining meaningful administrative review.” Id. (emphasis added). The magistrate judge found that the defendants had offered sufficient evidence to support their policy choice, and the Tenth Circuit affirmed. Id. In doing so, however, the Tenth Circuit quoted Turner for the proposition that “if an inmate claimant can point to an alternative that fully
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accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. (quoting Turner, 482 U.S. at 91).
BOP may very well have valid, constitutional reasons for adhering to the all-ornothing rule in this case. Indeed, as the Supreme Court noted in Turner, “[w]hen accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officers.” Turner, 482 U.S. at 90. But the Motion to Dismiss stage is not the proper stage to engage in the balancing of the First Amendment rights of inmates and publisher against the “burdens of redacting or tearing apart publications in the context here: the operation of the most secure prison in the BOP.” [#59 at 13] This type of analysis - applied by the courts in Turner, Thornburgh and Shabazz cannot be conducted at the motion to dismiss stage. Moreover, it would be unreasonable to require Plaintiff to identify and address all of the penological interests BOP may offer to support the policy in its Complaint. Plaintiff’s allegations are sufficient to place BOP on notice of the basis for the alleged constitutional violation. BOP must now come forward with some evidence showing a rational basis for their complete censorship of the publications. Accordingly, the Court RECOMMENDS denying BOP’s Motion to Dismiss Count One.
2. Count Two adequately alleges a plausible due process claim The Supreme Court has held that “[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth
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Amendment even though qualified of necessity by the circumstance of imprisonment.” Procunier v. Martinez, 416 U.S. 396, 418 (1974), overruled in part on other grounds by Thornburgh, 490 U.S. at 409-14; accord Barrett v. Orman, 373 Fed. App’x 823, 825 (10th Cir. 2010) (holding that “Martinez’s procedural requirements survived Thornburgh”); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (applying the Martinez due process protections to publishers after Thornburgh). In Martinez, the Supreme Court approved a district court’s requirement “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 complaint be referred to a prison official other than the person who originally disapproved the correspondence.” Id. at 418-19.6
PLN’s complaint alleges that BOP violated these minimal procedural safeguards in several ways: (1) BOP, in at least one instance, failed to give any notice and, in other instances, failed to provide timely notification of the rejections [#1, ¶¶ 37-38, 62]; (2) the rejection notices did not give sufficient detail about the grounds for rejection [Id. at ¶¶ 23, 24, 39, 63]; and (3) PLN could not obtain a meaningful review of the violation, because the censored writing was not provided to the Regional Director at the secondary level of review, the lack of specific regulations governing the Regional Director’s review deprived PLN of the ability to receive an independent review of
6 Although the Martinez Court did not express an opinion as to whether any or all of these procedures were required to pass constitutional muster, Courts of Appeals have held that notice and a reasonable opportunity to protest are required procedures when a prison censors inmate mail. See Barrett, 373 Fed. App’x at 825; Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996); Martin v. Kelley, 803 F.2d 236, 243 (6th Cir. 1986). Moreover, BOP expressly acknowledges that the Martinez procedural safeguards apply [#31 at 14] but seeks dismissal on the grounds that it has complied with these requirements.
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rejected publications, or the Regional Director gave insufficient explanations for the upholding of the rejection notice [Id. at ¶¶ 45-47, 65-66].7
The Court finds that, taken together, the allegations in the Complaint adequately allege a due process claim. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Stanko v. Maher, 419 F.3d 1107, 1115 (10th Cir. 2005) (quoting Lawrence v. Reed, 406 F.3d 1224, 1233 (10th Cir. 2005) (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976))). Here, the Complaint adequately states that PLN did not receive one of the notices, and that the other notices were delayed six to nine months. [#1, ¶¶ 37-38] Given that the publications at issue are periodicals designed to update prisoners on changes in the law, the Court cannot conclude at this stage that delayed notice of six to nine months constitutes an opportunity to be heard “at a meaningful time.” Stanko, 419 F.3d at 1115.8
BOP’s argument that it only need give notice “at some point in time,” [#31, p. 17], would render meaningless the “meaningful time” component of due process. BOP’s
7 The Complaint also alleges that BOP failed to follow its own regulations which require BOP to inform inmates and publishers of “the reasons for [rejection].” [Id. at ¶ 64, citing 28 C.F.R. § 540.71(d), (e)] Even if true, however, BOP’s failure to follow its own regulations does not give rise to a constitutional claim. See Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993). 8 BOP disputes the fact that it either failed to provide notice or delayed providing notice. [#31 at 17] But, at the motion to dismiss stage, the Court must “accept as true all wellpleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova, 595 F.3d at 1124 (quoting Smith, 561 F.3d at 1098). None of the cases cited by BOP in support of its contention that it is “entitled to a presumption that the rejection notice was provided to PLN” on or near the dates reflected on the notices applied the presumption in the context of a motion to dismiss pursuant to Rule 12(b)(6). [#31 at 17]
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argument would allow it to delay notice for decades. Certainly, the Martinez Court
anticipated the notice requirement to have some temporal proximity to the censorship.
Similarly, the Complaint pleads sufficient facts to assert that PLN was not given a
“reasonable opportunity to protest [the Warden’s] decision.” Martinez, 416 U.S. at 418.
The Complaint alleges that the Regional Director did not even have copies of the
censored materials when conducting the review, and acted without any regulations or guidelines when conducting that review. [#1, ¶¶ 65-66]9 “Whatever the merits of
[PLN’s] claim . . . , the facts alleged ‘nudged’ [its] claim against [BOP] ‘across the line
from conceivable to plausible.’” Barrett, 373 Fed. App’x at 826 (quoting Twombly, 550
U.S. at 570). Accordingly, the Court RECOMMENDS denying BOP’s Motion to Dismiss
Claim Two.
3. Claim Three adequately alleges an APA claim
BOP’s Motion to Dismiss Claim Three relies entirely on its arguments that: (1)
Count One is constitutionally moot; and (2) PLN failed to adequately plead its First
Amendment and due process claims. [#31, pp. 19-20] As detailed above, the Court
disagrees that Count One is moot and believes that PLN has adequately pled its
9 BOP disputes some of these assertions. Once again, however, at the motion to dismiss stage, the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova, 595 F.3d at 1124 (quoting Smith, 561 F.3d at 1098). BOP also argues that PLN lacks standing to challenge BOP’s alleged policy of returning the rejected publications prior to completion of a publisher’s appeal, because “that is not the practice at the ADX.” [#31 at 19] Although the Court has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1),” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995), the Court finds it unnecessary and a waste of judicial resources to resolve this factual dispute at this stage given that ADX’s alleged practice of returning rejected publications prior to the completion of the appeal is just one of several bases for PLN’s due process claim [see #55 at 19].
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constitutional claims. As a result, the Court RECOMMENDS denying BOP’s Motion to Dismiss Claim Three. IV. ANALYSIS – MOTION TO STAY
BOP makes three arguments in support of its Motion to Stay. First, BOP argues that the Court should first determine its jurisdiction before the parties proceed to discovery. [Id. at p. 1] Second, BOP argues that the Court should delay discovery until it determines whether PLN has adequately pleaded a plausible claim. [Id.] Finally, BOP argues that the five-factor test set forth in String Cheese Incident supports staying the matter. The Court addresses each argument below.
A. BOP’s jurisdictional and adequate pleadings arguments While this Court has discretion to stay proceedings while a dispositive motion is pending, a stay of proceedings is generally disfavored in this district. See, e.g., Breckenridge v. Vargo & Janson, P.C., No. 16-cv-01176-WJM-MEH, 2016 WL 7015702, at *1-2 (D. Colo. Nov. 28, 2016) (“The decision to issue a protective order and thereby stay discovery rests within the sound discretion of the trial court. . . .Generally, it is the policy in this District not to stay discovery pending a ruling on motions to dismiss.”); Profitstreams LLC v. Ameranth, Inc., No. 11-cv-01710-RBJ-KLM, 2011 WL 5024912, at *1 (D. Colo. Oct. 21, 2011) (“Although the stay of proceedings in a case is generally disfavored, the Court has discretion to stay discovery while a dispositive motion is pending.”). BOP argues that the Court should stay discovery until it has determined: (1) that it has jurisdiction over the claims, and (2) that the Complaint asserts a plausible claim for relief. But, jurisdictional and sufficiency of allegations issues are frequently raised in motions to dismiss and, as indicated above, such issues do not generally
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cause courts in this jurisdiction to stay litigation. There is nothing particularly unique about BOP’s Motion to Dismiss that would alter the general presumption that discovery should proceed.10
Moreover, as indicated above, the Court is recommending to the Article III Judge that the Motion to Dismiss be denied. Ultimately, that decision will be made by the Article III Judge. Nonetheless, as outlined above, the Court believes that the law supports allowing the matter to proceed to discovery. As a result, the Court does not see anything particularly unique about the nature of the Motion to Dismiss that would warrant a stay of the proceedings, and instead will review the Motion to Stay pursuant to the String Cheese Incident factors.
B. String Cheese Incident analysis When considering whether to grant a stay, the Court considers the following factors: (1) the interest of the plaintiff in proceeding expeditiously with discovery and the potential prejudice to the plaintiff of a delay; (2) the burden on the defendant of proceeding with discovery; (3) the convenience to the Court of staying discovery; (4) the interests of nonparties in either staying or proceeding with discovery; and (5) the public interest in either staying or proceeding with discovery. See String Cheese Incident, 2006 WL 894955, at *2; Profitstreams LLC, 2011 WL 5024912, at *1. Considering these factors, the Court concludes that a stay is not warranted.
10 Notably, because PLM only seeks prospective relief and does not seek damages, qualified immunity is not at issue in this case. Cf. Iqbal, 556 U.S. at 685 (noting that “[t]he basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery.’”) (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)).
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First, Plaintiff has an interest in proceeding expeditiously. This case has already been pending for more than a year, and remains at the pleadings stage. Herein, this Court is issuing a Recommendation on the Motion to Dismiss. But, if any party files an objection, the district court will need to review that objection de novo. See 28 U.S.C. § 636(b)(1). Given that this case has already been pending for more than a year and that a final determination of the Motion to Dismiss could take several months, the Court finds the first factor weighs against granting a stay. See Breckenridge, 2016 WL 7015702, at *2 (finding first factor weighed against staying the matter; “a stay of proceedings in a civil case pending resolution of a dispositive motion can last several months or more”); SOLIDFX, LLC v. Jeppesen Sanderson, Inc., No. 11-cv-091468-WJM-BNB, 2011 WL 4018207, at *3 (D. Colo. Sept. 8, 2011) (finding stay unwarranted because, at the time, “[i]n this district, the average time from the filing to determination of dispositive motions exceeds six months”).
BOP argues that the burden to PLN is minimal given that BOP is now allowing Prison Legal News to be distributed within ADX. [#34 at 10-11] But, as indicated above, nothing in the February 2016 change in the ADX institution supplement requires such continued distribution. Indeed, Mr. Chapman believes that at least three of the past issues should have been rejected. Moreover, the fact that this case has already been pending for fifteen months and remains at the pleading stage counsels heavily against further delay.
Second, while proceeding with discovery will cause some burden to BOP, BOP has not pointed to any unique aspects of this case that make discovery especially burdensome. BOP asserts that prison officials will likely need to be deposed and that
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BOP will be required to respond to discovery. [#34 at 11] But, such is the case any time suit is brought. See Breckenridge, 2016 WL 7015702, at *2 (“[D]efendants always are burdened when they are sued, whether the case ultimately is dismissed, summary judgment is granted, the case is settled, or a trial occurs.”). Thus, while the Court acknowledges some burden on BOP, that burden is not particularly unique.
Third, the Court’s interest in controlling its docket outweighs any concern over use of judicial resources. As indicated above, the policy in this district is to allow discovery to proceed. BOP argues that discovery disputes may arise that would require the Court’s resolution. [#34 at 12] But this is true in any case. Nothing in this case presents unique challenges that would monopolize the Court’s time. As a result, the potential that some judicial resources will need to be spent to resolve discovery disputes does not outweigh the Court’s interest in controlling its docket and ensuring the fair and speedy administration of justice. See Breckenridge, 2016 WL 7015702, at *2. Thus, this factor too supports a denial of the stay.
Fourth, the interests of third parties support denying a stay. ADX inmates subscribe to Prison Legal News and they have an interest in a prompt resolution of this case. If the Article III Judge denies the Motion to Dismiss, then resolution cannot occur until discovery has been completed. Granting the stay will delay that discovery. Thus, the fourth factor weighs against granting a stay.
Finally, the public interest supports denying the stay. BOP argues that “the public has no interest in seeing unnecessary discovery proceed, especially where the efficient use of the resources of both a federal court and a federal agency charged with safely housing almost 200,000 prisoners are concerned.” [#34 at 13] BOP has not
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made any showing, however, that allowing discovery to proceed will somehow threaten
the safety of its inmates. Moreover, the public has an interest in the speedy resolution
of legal disputes. See, e.g., Genetic Techs Ltd. v. Agilent Techs., Inc., No. 11-cv-
01389-WJM-KLM, 2011 WL 5024839, at *8 (D. Colo. Oct. 20, 2011); Waisanen v.
Terracon Consultants, Inc., No. 09-cv-01104-MSK-KMT, 2009 WL 5184699, at *2 (D.
Colo. Dec. 22, 2009). Thus, the fifth factor weighs against granting a stay.
Accordingly, weighing each of the String Cheese Incident factors, the Court
DENIES the Motion to Stay.
V. CONCLUSION
For the foregoing reasons, the Court ORDERS that Defendant’s Motion to Stay
[#34] is DENIED. Further, the Court respectfully RECOMMENDS that Defendant’s
Motion to Dismiss [#31] be DENIED.11 The Court will conduct a Scheduling Conference
in this matter on April 10, 2017 at 9:00 a.m.
11 Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the magistrate judge’s proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge’s proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (concluding that district court’s decision to review a magistrate judge’s recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.
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DATED: February 23, 2017

BY THE COURT:
s/Scott T. Varholak United States Magistrate Judge

1992) (finding that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
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ġ

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Raymond P. Moore

Civil Action No. 15-cv-02184-RM-STV

PRISON LEGAL NEWS, a project of the Human Rights Defense Center,

Plaintiff,

v.

FEDERAL BUREAU OF PRISONS,

Defendant. ______________________________________________________________________________

ORDER ______________________________________________________________________________

This matter is before the Court on the February 23, 2017 Recommendation of United States

Magistrate Judge Scott T. Varholak (“Recommendation”) (ECF No. 62) to deny both Defendant

Federal Bureau of Prisons’ (“Defendant”) Motion to Dismiss for Failure to State a Claim (“Motion

to Dismiss”) (ECF No. 31) and Motion to Stay Discovery and to Vacate the Scheduling Conference

and Related Deadlines (“Motion to Stay”) (ECF No. 34). Defendant filed timely Objections to the Recommendation (“Objections”) (ECF Nos. 66 & 67).1 The Recommendation is incorporated

herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b).

For the following reasons, this Court REJECTS the Magistrate Judge’s Recommendation.

1 Accompanying Defendant’s Objections is a Supplemental Declaration of Jack Fox, ADX Florence’s current Warden, dated March 14, 2017. (ECF No. 66-1.) Plaintiff filed no response to Defendant’s Objections and the deadline to do so has passed. (See generally Dkt.) Before issuing his Recommendation, the Magistrate Judge held an oral hearing regarding the two Motions on February 17, 2017. (See ECF No. 61.)

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I. BACKGROUND AND LEGAL STANDARDS
A. Background
The Magistrate Judge set forth the relevant background facts of this case in his
Recommendation (ECF No. 62 at 1-8), which this Court adopts and reproduces below:
Plaintiff Prison Legal News (“PLN”), . . . a not-for-profit entity organized under the laws of the State of Washington, . . . publishes Prison Legal News, a monthly magazine that provides news about legal decisions affecting prisoners and information designed to help prisoners navigate the judicial system. [ECF No. 1 at ¶¶ 1, 6.] Prison Legal News has thousands of subscribers, including nineteen inmates at the United States Penitentiary – Administrative Maximum Facility at Florence, Colorado (“ADX”) as of the filing of the Complaint. [Id. at ¶ 1.] . . . Defendant Federal Bureau of Prisons (“BOP”) is the federal agency responsible for administering all federal correctional institutions, including ADX. [Id. at ¶ 7.] BOP has adopted regulations for all of its facilities, including ADX, permitting inmates to subscribe to or receive publications without prior approval, except where prohibited by statute. [Id. at ¶ 16 (citing 28 C.F.R. § 540.70).] The regulations permit rejection of an incoming publication if the facility determines that the publication is “detrimental to the security, discipline, or good order of the institution or . . . might facilitate criminal activity.” [Id.; see also 28 C.F.R. § 540.71(b).]
BOP regulations set forth certain steps that the Warden must undertake with respect to the rejection of any publication. First, the Warden must “review the individual publication prior to rejection of that publication.” [Id. at ¶ 17 (citing 28 C.F.R. § 540.71(c)).] Second, upon rejection of the publication, the Warden must “promptly advise the inmate [in writing] of the decision and the reasons for” the rejection. [Id. at ¶ 18 (citing 28 C.F.R. § 540.71(d)).] Finally, the Warden must provide the “publisher or sender” with a copy of the rejection letter sent to the inmate. [Id. at ¶ 19 (citing 28 C.F.R. § 540.71(e)).] BOP regulations allow both inmates and publishers to appeal rejection decisions. [Id. at ¶ 20.] While inmates may appeal rejections through the BOP’s Administrative Remedy Program, publishers have the right to “obtain an independent review of the rejection by writing to the Regional Director [of BOP] within 20 days of receipt of the rejection letter.” [Id. at ¶ 20; see also 28 C.F.R. § 540.71(d, e).] Unless an inmate files for review, the Warden must return a rejected publication to its sender. [Id.; see also 28 C.F.R. § 540.71(e).]
The instant litigation arises out of the rejection by ADX Wardens of at least eleven issues of Prison Legal News between January 2010 and April 2014. [Id. at ¶ 22.] The issues were rejected in their entirety. [Id.] For each, the Warden who rejected the issue signed a rejection notice stating that the issue “has been rejected in accordance with BOP Program Statement 5266.10, Incoming Publications, which states in part, ‘The Warden may reject a publication if it is determined detrimental to the security, good order, or discipline of the institution or if it may facilitate criminal activity.’ ” [Id. at ¶ 23.] “Each notice then provides a single sentence purporting to identify the material that caused the issue to be censored.” [Id. at ¶ 24.] . . . [F]or most of the rejected issues, the notices claim that the issue was censored due to references in the magazine “to ADX inmates or ADX or other BOP personnel” but do not give any further description of how that content “is detrimental
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to the security, good order or discipline of ADX.” [Id. at ¶ 25.] Instead, the rejections “appear to treat any reference to any ADX inmate or staff member—current or former—as a security risk.” [Id.] The content that forms the basis for the rejections consists of articles about legal proceedings or other events pertaining to ADX or BOP. [Id. at ¶ 26.] With respect to the information about ADX inmates and staff, such information “is limited and often publicly available.” [Id. at ¶ 28.] “[M]uch or all of this information is already available to prisoners at ADX through other sources,” such as general-interest publications, television and radio. [Id. at ¶ 30.] Inmates at ADX also have access to a law library, which includes access to an electronic service containing court decisions and filings. [Id. at ¶ 31.]
According to the Complaint, ADX did not provide notice of its rejection of the November 2011 issue of Prison Legal News to PLN. [Id. at ¶ 37.] With respect to the remaining issues that were rejected, PLN did receive rejection notice letters, but some of those notices did not reach PLN until six to nine months after the rejection occurred. [Id. at ¶ 38.] PLN appealed at least four of these rejections. [Id. at ¶ 41.] Each appeal was rejected by the Regional Director reciting Program Statement 5266.11, which allows rejection of incoming publications that are “detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity.” [Id. at ¶ 45.] None of the Regional Director’s letters provides specific reasoning for the rejection. [Id.]
On October 1, 2015, PLN filed its Complaint in this action. [ECF No. 1.] Count One alleges censorship of constitutionally protected speech in violation of the First Amendment.2 [Id. at ¶¶ 51-58.] Count Two alleges failure to provide due process in violation of the Fifth Amendment. [Id. at ¶¶ 59-70.] Count Three alleges violations of the Administrative Procedure Act (“APA”). [Id. at ¶¶ 71-81.]3
2 The Magistrate Judge notes that “[a]t oral argument, BOP conceded that Count One must be considered as a whole and that the Court should not engage in attempts to determine whether certain aspects of Count One were moot while others were not.” (ECF No. 62 at 12 n.1.) 3 At the end of the Complaint, in addition to costs, attorneys’ fees, and other “just and equitable” relief, Plaintiff specifically requests:
A. A declaration that Defendant’s censorship of Prison Legal News under 28 C.F.R. § 540 and lack of due process regarding such censorship violates the First and Fifth Amendments to the U.S. Constitution and the APA; B. Permanent injunctive relief compelling Defendant and its agents to deliver (i) all past issues of Prison Legal News that have been previously censored and withheld from PLN’s subscribers at ADX, and (ii) all future issues of Prison Legal News absent a legitimate penological interest supported by specific facts; C. Permanent injunctive relief requiring Defendant and its agents, as to any future issues that are censored, (i) to provide PLN with timely, individualized, specific, and detailed notice that includes an explanation of why the article(s) or page(s) in question are subject to censorship under 28 C.F.R. § 540, (ii) to provide PLN with timely opportunity to be heard and contest the decision each time PLN’s publication is censored, and (iii) to retain censored issues of Prison Legal News until either the resolution of PLN’s appeals to the Regional Director or until the time for appeal has expired, whichever is later. (ECF No. 1 at 16.)
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B. Rule 12(b)(1) Motion Under Federal Rule of Civil Procedure 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction may be brought in two forms: “facial” or “factual.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). A “facial attack” as to subject matter jurisdiction challenges the sufficiency of the complaint and in reviewing such a challenge, the Court must accept the allegations in the complaint as true. Id. A “factual attack” as to subject matter jurisdiction challenges the facts upon which subject matter jurisdiction depends and in reviewing such a challenge, the Court has discretion to consider documents outside complaint. Id. at 1003. If undertaking a review of subject matter jurisdiction predicated upon a factual attack of the complaint, “a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.” Id. A Rule 12(b)(1) motion to dismiss must be determined without regard to mere conclusory allegations of jurisdiction. Hernandez v. United States, 34 F. Supp. 3d 1168, 1175 (D. Colo. 2014) (citing Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)). Where jurisdictional issues raised in a Rule 12(b)(1) motion are intertwined with the case’s merits, the Court should resolve the motion under either Rule 12(b)(6) or Rule 56. Hernandez, 34 F. Supp. 3d at 1175 (citation omitted). Regardless of the type of challenge to subject matter jurisdiction, the plaintiff retains the burden of establishing subject matter jurisdiction. Port City Props. v. Union Pacific R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citation omitted). C. Rule 12(b)(6) Motion Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2).
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Pursuant to Federal Rules of Civil Procedure 12(b)(6), a complaint must be dismissed if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . .” Id. at 555 (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. A “plaintiff must ‘nudge [] [his] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (citation omitted).
The Tenth Circuit has held “that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotation and citation omitted). The Tenth Circuit has further noted “that the nature and specificity of the allegations required to state a plausible claim will vary based on context.” Id. (citation omitted.) Thus, the Tenth Circuit “concluded the Twombly/Iqbal standard is ‘a middle ground between heightened
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fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will not do.’” Id. (citation omitted.)
For purposes of a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pled factual allegations in the complaint as true and resolve all reasonable inferences in a plaintiff’s favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir. 1998) (citation omitted); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996) (citations omitted). However, “when legal conclusions are involved in the complaint ‘the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to [those] conclusions. . . .” Khalik, 671 F.3d at 1190 (quoting Iqbal, 556 U.S. at 678). “Accordingly, in examining a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id. II. DISCUSSION
A. Mootness The doctrine of mootness is an aspect of Article III’s case or controversy requirement. A case becomes moot when the events occur which resolve the controversy underlying it, the issues involved are no longer “live,” or the parties have no personal stake in the outcome. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395–96 (1980). In practical terms, a plaintiff’s claim is moot if no reasonable expectation that the alleged violation will recur exists and interim events have eliminated the effects of the alleged violation. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir. 1992) (citation omitted). “In such a situation, a federal court decision provides no resolution between the parties to the lawsuit and therefore, constitutes a constitutionally impermissible advisory opinion.” United States v. Dominguez-Carmona, 166
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F.3d 1052, 1055 (10th Cir. 1999), overruled on other grounds by United States v. Meyers, 200 F.3d 715, 721–22 (10th Cir. 2000). “[W]hen a favorable decision will not afford plaintiff relief, and plaintiff’s case is not capable of repetition yet evading review, [the Court has] no jurisdiction under Article III.” McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999).
The Court reviews this matter de novo. This case arises with respect to eleven issues of the Prison Legal News magazine that were rejected between 2010 and 2014 and, accordingly, not delivered to inmates at the ADX on the sole basis of the magazine’s having identified and discussed ADX or BOP inmates or staff members—the then-screening practice at the ADX. (See ECF No. 1.) In addition to complaining with respect to the non-delivery of particular issues of its publication, Plaintiff also asserts a procedural due process claim. Plaintiff challenges the timeliness and adequacy of the notice of rejection provided to Plaintiff, as well as the degree of specificity contained in the Regional Director’s upholding of the rejection as part of the appeal process. (Id. at ¶¶ 59-70.) Finally, on these same grounds – censorship and denial of procedural due process – Plaintiff brings an additional claim for violation of the Administrative Procedure Act (“APA”). (Id. at ¶¶ 71-81.) By these claims, Plaintiff seeks declaratory and injunctive relief with respect to the previously rejected magazine issues and any future rejections.
Although a variety of issues have been raised in the relevant pleadings, the Court finds one to be largely dispositive – mootness. After the litigation was filed in 2015, the ADX fundamentally revised its official policies and procedures with respect to review of publications. (See ECF Nos. 66 at 2-3; 59-1; 31-1.) The new procedures provide, inter alia:
• separate (sequential) review by Special Investigative Services (“SIS”) and ADX Legal Services before a recommendation for rejection of a publication can be forwarded to the Warden;
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• any recommended rejection by SIS must explain the basis for rejection noting “specific objectionable pages [and] content” as well as the national policy and Code of Federal Regulations;
• rejections require an individual assessment of the publication and specific information as to how information may affect institutional security;
• without agreement from ADX Legal services, the recommendation of SIS does not get forwarded to the Warden;
• mandatory quarterly training conducted by ADX Legal Services is required to assure that staff understands and implements the new procedures; and
• staff are instructed that a publication may not be rejected solely because it discusses an ADX staff member or inmate.
Id. Previously rejected issues of Plaintiff’s publication have been reviewed under the new
policy. Each has been approved. Each has been delivered to ADX inmates. No issue of Plaintiff’s publication has been rejected since April 2014. (ECF No. 66-1.) Two ADX officials have sworn, under penalty of perjury, that the revised policy will be continued into the future. (ECF Nos. 59-1; 66-1; 31-1.) More specifically, Warden Fox made a specific declaration – under penalty of perjury – that “the ADX will not utilize the fact that an incoming publication discusses an ADX or Bureau inmate, or Bureau staff member, standing alone, as a basis to find that the incoming publication is ‘detrimental to the security, good order, or discipline of the institution or . . . might facilitate criminal activity.’ ” (ECF No. 59-1 at ¶ 17 (citing 28 C.F.R. § 540.71(b)).)
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Defendant’s delivery of previously rejected issues of Plaintiff’s publication moots Plaintiff’s request for injunctive relief of “compelling Defendant and its agents to deliver all past issues of Prison Legal News that have been previously censored and withheld from PLN’s subscribers at ADX” in its Complaint (ECF No. 1 at 16 at ¶ B(i)). Simply stated, there is no longer a live controversy with respect to these matters and any claims pertaining to these issues are thus moot. See Ind v. Colorado Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (“a live case or controversy is a constitutional prerequisite to federal court jurisdiction”).
As for declaratory and injunctive relief with respect to future rejections – that is, prospective relief – that, too, is moot. What Plaintiff seeks is either relief with respect to practices no longer employed (rejection based on mere identification or discussion of an inmate or staff member) or broad-based relief with respect to a hypothetical rejection at some unknown point in the future on a basis not known at this time. As to the first, the matter is moot. The change in policy has removed the practice as to which relief was sought. As to the second, the matter is not only moot as to the claim raised in the Complaint, but it also suffers from a lack of standing with respect to these ill-defined matters.
For prospective relief, a real, impending or immediate threat on injury is required. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983); Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 493 (10th Cir. 1998). Without this, there is no present controversy. Yet there can be no impending or immediate threat of injury in the immediate future based on rejection of a magazine for reasons which once were policy, but now no longer are (solely for mentioning an inmate or staff member). Indeed, as noted earlier, there has been no such rejection under the February 2016 policy and, in fact, no rejection whatsoever of Plaintiff’s publication since April 2014. (ECF No. 66-1 at ¶¶ 1 & 5; see also ECF Nos. 59-1 at ¶ 5; 31-1 at ¶¶ 21-22.) Without the
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requisite threat or immediacy of injury, Plaintiff lacks standing. Finally, as for the possibility (considered by the Magistrate Judge) of future rejections of
Plaintiff’s publications because of “similar content” to that which triggered past rejections, rejections based on matters which could be discerned from some other public record, and whether redactions should be required in all future instances of rejection (rather than rejection of the entire magazine), these possibilities lack any context. And without context to decide a legal issue, the Court would effectively be placed in the role of executive policy maker for the BOP. Put another way, the prospective relief unmoored from the prior bases for rejection is such a vague, uncertain and abstract proposition that the Court finds that is prudentially moot, even if it were not constitutionally so. See Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (prudentialmootness doctrine applies where the case “is so attenuated that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand”).
As for the exceptions to the mootness doctrine, the Court finds them to be inapplicable. The “capable of repetition” exception can hardly be said to apply where the rejection basis complained of – solely mentioning inmates or staff – is no longer ADX policy. And whatever may be within the parameters of “similar conduct,” it is not a “repetition.” And in light of the fact that the Warden has sworn that publications will not be rejected merely for naming staff or inmates and that the new policy benefits security considerations (see ECF No. 59-1 at ¶ 20), the Court does not find this to be an instance of “voluntary cessation” for the purpose of strategic manipulation matters to avoid the ligation.4
4 The Court finds unconvincing the argument that a similar dispute between these parties ten years ago which resulted in a mootness determination evidences a manipulative present intention on the part of the BOP. (See ECF No. 55 at 10-11.)
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The Court also finds the due process claim to be moot. Simply put, Plaintiff sought process with respect to the rejection of eleven issues of its publication. With the decision having been reconsidered, and the issues distributed, the outcome sought to be achieved by “better process” has been achieved. There is nothing more to be obtained by process or otherwise with respect to the once rejected issues.
Finally, with respect to the APA claim, it is premised on the same facts and disputes as the other claims and subject to dismissal for the same reasons.
Dismissal of the Complaint moots any remaining stay and discovery matters raised by the Motion to Stay. It also moots the “appeal” of the denial of the Motion to Stay (ECF No. 67).
In light of the foregoing discussion, consideration of Rule 12(b)(6) issues are unnecessary. B. Motion to Stay Defendant’s Motion to Stay depends on this matter’s continuation. Given the rulings above, the Court denies Defendant’s Motion to Stay as moot. III. CONCLUSION Based on the foregoing, the Court: (1) REJECTS the Recommendation of the Magistrate Judge (ECF No. 62); (2) GRANTS Defendant’s Motion to Dismiss (ECF No. 31) and DISMISSES this matter
without prejudice; (3) DENIES as moot Defendant’s Motion to Stay (ECF No. 34); (4) DENIES as moot Defendant’s Appeal of Order Denying Motion to Stay (ECF No. 67);
and
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Case 1:15-cv-02184-RM-STV Document 71 Filed 03/28/17 USDC Colorado Page 12 of 12 (5) DIRECTS the Clerk of the Court to CLOSE the case. DATED this 28th day of March, 2017. BY THE COURT: ____________________________________ RAYMOND P. MOORE United States District Judge
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Raymond P. Moore
Case No. 15-cv-02184-RM-STV PRISON LEGAL NEWS,
Plaintiff, v. THE FEDERAL BUREAU OF PRISONS,
Defendant. ______________________________________________________________________________
ORDER ______________________________________________________________________________
On March 28, 2017, this Court entered an Order (“the March 28 Order”), inter alia, rejecting the Report and Recommendation (“R&R”) of U.S. Magistrate Judge Scott T. Varholak, granting defendant The Federal Bureau of Prisons’ (“defendant”) motion to dismiss (ECF No. 31) (“the motion to dismiss”), denying as moot defendant’s motion to stay (ECF No. 34) (“the motion to stay”), and dismissing this case. (ECF No. 71.) At the same time, the Court also entered Final Judgment in favor of defendant. (ECF No. 72.)
A day later, plaintiff Prison Legal News (“plaintiff”) moved to vacate the March 28 Order and the Final Judgment on the ground that both had been entered prior to plaintiff having an opportunity to file a response to defendant’s objection to the R&R. (ECF No. 73.) The same day, the Court granted plaintiff’s motion to vacate, agreeing that the March 28 Order and Final Judgment had been entered before the time to file a response expired. (ECF No. 74.) In doing so, the Court allowed plaintiff until April 4, 2017 to file its response to defendant’s objection, as well as to the

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March 28 Order, and allowed defendant until April 11, 2017 to file a reply. (Id.) Finally, the Court vacated the Final Judgment only. (Id.)
The Court now VACATES the March 28 Order in its entirety. This is for two principal reasons. First, the Court did not provide plaintiff an opportunity to respond to defendant’s objection, and thus the March 28 Order did not take into account any such response. Second, from the Court’s perspective, the Court did not sufficiently discuss various matters in the March 28 Order, including the mootness doctrine itself and the “voluntary cessation” exception to the mootness doctrine.
The Court now begins again, and reviews the R&R, defendant’s objection, plaintiff’s response, and defendant’s reply anew. I. Review of a Magistrate Judge’s Report and Recommendation
A district court may refer pending motions to a magistrate judge for entry of a report and recommendation. 28 U.S.C. §636(b)(1)(B); Fed. R. Civ. P. 72(b). The court is free to accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge. 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(3). A party is entitled to a de novo review of those portions of the report and recommendation to which specific objection is made. See Fed.R.Civ.P. 72(b)(2), (3). “[O]bjections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30 St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate’s report under any standard it deems appropriate.”). Furthermore, arguments not raised before the magistrate judge need not be considered by this Court. Marshall v. Chater, 75 F.3d 1421,
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1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.”). II. Factual Background
This case involves, inter alia, the rejection, between January 2010 and April 2014, of eleven (11) issues of plaintiff’s legal news publication that is sent to prison-inmate subscribers at institutional facilities such as the Administrative Maximum Facility (“ADX”) in Florence, Colorado. (ECF No. 1 at ¶¶ 11-12, 14, 22.) Plaintiff also challenges defendant’s alleged failure to provide timely and adequate notice of the rejection of its publication, including the alleged failure to provide specific reasons for rejection. (Id. at ¶¶ 3, 45.)
Plaintiff alleges as follows. The Bureau of Prisons’ regulations allow for rejection of an incoming publication if an institution determines that it is “detrimental to the security, discipline, or good order of the institution or might facilitate criminal activity. (Id. at ¶ 16 (ellipsis omitted)). Upon rejection of a publication, a warden is required to “promptly advise the inmate of the decision and the reasons for it.” (Id. at ¶ 18.) The warden is also required to provide the publisher or sender of the publication with a copy of the rejection letter sent to an inmate, as regulations allow both inmates and publishers to appeal rejections. (Id. at ¶¶ 19-20.)
Each of plaintiff’s rejected publications was rejected in its entirety. (Id. at ¶ 35.) For most of the publications rejected, a rejection notice stated that this occurred due to content therein referring to ADX inmates, ADX personnel, or other personnel of the Bureau of Prisons. (Id. at ¶ 25.) The content cited in the rejection notices constituted a “fraction” of the information contained in the rejected publications. (Id. at ¶ 35.)
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Defendant provided no notice of a publication being rejected in November 2011. (Id. at ¶ 37.) Notice for some of the other rejected publications did not reach plaintiff until six to nine months after the actual rejection. (Id. at ¶ 38.) None of the notices provided an explanation for why the cited content was detrimental to the security, discipline, or good order of ADX. (Id. at ¶ 39.) Plaintiff appealed the rejection of at least four publications. (Id. at ¶ 41.) Each appeal was rejected in a letter from the Bureau of Prisons’ Regional Director for the region covering ADX. (Id. at ¶ 45.) None of those letters provided specific reasons for the rejection. (Id.)
In June 2015, plaintiff sent a letter to, inter alia, the then current warden of ADX, Warden John Oliver. (Id. at ¶ 48.) Among other things, the letter requested that the Bureau of Prisons commit to stop “illegal censorship” of plaintiff’s publications at ADX. (Id. at ¶ 49.) Thereafter, Warden Oliver indicated future publications that may contain personal information about an ADX inmate would be “more thoroughly reviewed” to ensure information contained in the publication was not already publicly available to inmates. (Id. at ¶ 50.)
On February 2, 2016, a new institution supplement regarding incoming publications was issued (“the February 2016 supplement”). (ECF No. 31-1 at ¶ 16.) The Court has reviewed the February 2016 supplement, as well as the supplements that existed previously (“the prior supplements”).1 As far as the Court can discern, the relevant paragraphs from the February 2016 supplement are B, C, and Q, while the relevant paragraphs from the prior supplements are B and C. All of the remaining paragraphs from the February 2016 supplement are essentially the same as those
1 There were apparently four prior versions of the institution supplement, all of which are essentially the same with respect to the relevant provisions. (ECF No. 31-1 at ¶¶ 12-13.) The Court, thus, uses the most recent of the prior versions, dated December 8, 2014. (See ECF No. 31-7.)
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in the prior supplements. Because of their obvious importance to matters presented in the motion
to dismiss, the Court recites the relevant paragraphs from both, with the prior supplements first.
B. When the Mail Room Officer questions the acceptability of any publication, it will be forwarded to the Case Management Coordinator before referring the publication to the Warden.
C. The Case Management Coordinator or designee will review each individual publication and[,] if rejection is recommended, will have a letter prepared for the Warden’s signature.
(ECF No. 31-7 at ¶¶ B, C.)
********
B. The receiving Correctional Systems Officer will review all incoming publications for potentially objectionable content in accordance with 28 C.F.R. § 540.70 et seq. If content is preliminarily deemed objectionable by the receiving Correctional Systems Officer, the objectionable incoming publication will be forwarded to the Special Investigative Services (SIS) Department for additional review in accordance with 28 C.F.R. § 540.70 et seq. The SIS Department will review each individual incoming publication and, if rejection is recommended, draft a letter prepared for the Warden’s signature. All recommended rejection letters must notate, in writing, specific objectionable pages and content, as well as the national policy and Code of Federal Regulations citation.
C. Prior to being sent to the Warden for formal action, all recommended rejection packets will be forwarded to the Legal Services Department for review.
Q. The Legal Services Department will conduct quarterly training with Correctional Systems Department and Special Investigative Services Department staff regarding the procedures outlined in Program Statement 5266.11 and this supplement.
(ECF No. 31-3 at ¶¶ B, C, Q.)
Personnel in the Special Investigative Services (“SIS”) Department have expertise in
assessing potential security risks. (Id. at ¶ 17.) If the Legal Services Department does not concur
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that an incoming publication should be rejected, the rejection packet is not forwarded to the Warden and the incoming publication is not rejected. (Id. at ¶ 19.)
When the warden at ADX determines that a publication’s content includes material that should be rejected, the entire publication is withheld, even if the basis for rejection is “only a few pages” in the publication. (ECF No. 31-1 at ¶ 7.)
No issue of plaintiff’s publication has been rejected in either 2015 or 2016. (Id. at ¶¶ 22-23.) Under the February 2016 supplement, a publication will not be rejected solely because it identifies an ADX or Bureau of Prisons inmate or staff member. (Id. at ¶¶ 24-25.) Instead, when a publication identifies and discusses an ADX or Bureau of Prisons inmate or staff member, the warden of ADX will make an individualized assessment of each publication, “taking into account specific information about the inmate or staff member, the content of the article, and how that information may affect institutional security at the ADX.” (Id. at ¶ 26.) The warden must conduct this analysis even if the information contained in the publication is publicly available, as the fact that information is publicly available does not automatically mean it is suitable for introduction to ADX. (Id.)
The 11 rejected issues of plaintiff’s publication were reviewed in accordance with the February 2016 supplement, and the warden of ADX determined that all of those issues could be provided to inmate subscribers. (Id. at ¶ 28.) III. The Magistrate Judge’s Findings and Defendant’s Objections
First, the Magistrate Judge addressed defendant’s arguments that this case was moot. The Magistrate Judge found that Count One of the operative Complaint was not rendered constitutionally moot by the February 2016 supplement. (ECF No. 62 at 12.) The Magistrate Judge found that the February 2016 supplement did not have any impact on many of the violations alleged in the
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Complaint. (Id. at 12-16.) The Magistrate Judge also found that the doctrine of prudential mootness did not apply. (Id. at 17.) The Magistrate Judge then addressed defendant’s arguments that the Complaint failed to state a claim. The Magistrate Judge found that Count One alleged a plausible claim, observing that defendant’s arguments in this respect were not entirely clear and, in any event, appeared to be premature. (Id. at 18-22.) The Magistrate Judge next found that the Complaint alleged a plausible claim under the Due Process Clause because it alleged that defendant violated procedural safeguards in several ways. (Id. at 23-25.) The Magistrate Judge also found that Count Three of the Complaint alleged a plausible claim under the Administrative Procedures Act. (Id. at 25-26.) Finally, the Magistrate Judge addressed the motion to stay, finding that it should be denied. (Id. at 26-30.)
Defendant objects to the Magistrate Judge’s findings that this case is not moot. (See generally ECF No. 66.) Defendant argues that it has provided the 11 issues of plaintiff’s publication at issue, and has eliminated its “old name-alone policy” that defendant asserts prompted the rejections. (Id. at 4.) Defendant argues that plaintiff’s request for declaratory relief is insufficient to support subject matter jurisdiction alone, and plaintiff cannot seek the broad prospective relief it allegedly requests because plaintiff does not face an imminent injury. (Id. at 7-9.) Defendant further argues that the voluntary cessation exception to the mootness doctrine does not apply because the 11 issues of plaintiff’s publication have been provided, and there is no evidence showing that ADX is likely to resume the challenged practice of rejecting publications that mention inmates or staff. (Id. at 11-13.) Defendant also argues that this Court should exercise its discretion to dismiss this case as prudentially moot, and that plaintiff’s due process claim is moot. (Id. at 13-20.)
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The Court agrees with defendant that, given the breadth of its objections to the Magistrate Judge’s findings with respect to the question of whether this case is moot, the best course is to review that issue de novo. IV. Discussion
This case is not moot. The Court reaches that finding for two principal reasons. First, the February 2016 supplement changes very little if anything about ADX’s treatment of incoming publications. The Court acknowledges that the February 2016 supplement does make one principal change to the procedures governing incoming publications—the levels of review. Under the prior supplements, a mail room employee would preliminarily review an incoming publication, which, if questioned, would then be sent to the next level of review with a case management coordinator. (ECF No. 31-7 at ¶¶ B, C.) That was the extent of the review, as the next step was for a letter to be prepared for the warden’s signature. (Id. at ¶ C.) Under the February 2016 supplement, the first level of review is performed by a correctional systems officer, and, if an incoming publication is deemed objectionable, it is then sent to the SIS Department for review. (ECF No. 31-3 at ¶ B.) On top of this, another layer of review is performed by the Legal Services Department. (Id. at ¶ C.)
The problem for defendant is that not one part of the Complaint is premised upon ADX’s incoming publication procedures having an insufficient number of review layers or with the type of employee reviewing a publication. Those are the principal changes wrought by the February 2016 supplement. Notably, the February 2016 supplement changes nothing about how an incoming publication will be reviewed. That will still continue to be performed pursuant to 28 C.F.R. § 540.70 et seq. and the relevant program statement. (See id. at 2 & ¶ B; see also ECF No. 31-7 at 2.)2 And
2 Although the prior supplements do not state that incoming publications were reviewed in accordance with 28 C.F.R. § 540.70 et seq., and more specifically § 540.71, it is undisputed that § 540.70 et
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it is how plaintiff’s rejected publications were reviewed—specifically the application of the governing regulation’s statement that publications may be rejected when detrimental to the “security, good order, or discipline of the institution”—that is one of the main issues in this case. (See ECF No. 1 at ¶¶ 54, 75.)
This, of course, fails to address additional changes that are mentioned in a declaration from one of ADX’s employees, Executive Assistant Todd Chapman (“the Chapman declaration”). It is these changes that make up the heart and bones of defendant’s argument of mootness, as defendant’s principal argument is that the so-called “name-alone policy” has been eliminated. (See ECF No. 66 at 4, 9, 12, 15, 18.) The “name-alone policy,” however, was not eliminated in the February 2016 supplement—there is no mention of it therein. Instead, the “name-alone policy” appears to have been eliminated, at least for the first time (and formally), in the Chapman declaration.
Putting that aside, second, defendant’s argument, that elimination of the so-called “namealone policy” moots this case, mischaracterizes plaintiff’s claims. As the Court reads the Complaint, plaintiff’s claims are not premised upon names alone. Instead, plaintiff’s claims are premised upon defendant considering names of inmates and staff to be detrimental to the security, good order, or discipline of ADX. (See ECF No. 1 at ¶¶ 23, 25.) The Court reads the two allegations as inextricably intertwined. In other words, it is defendant’s construction of the regulation’s language as encompassing inmate and staff members’ names that troubles plaintiff. It is not simply the mentioning of names, unmoored from the governing regulation (as if the governing regulation was not a part of defendant’s thinking in rejecting plaintiff’s publications), that troubles plaintiff.
seq. was the relevant governing guideline (see ECF No. 31-1 at ¶ 4), and thus, the Court finds it hard to believe that an incoming publication reviewed pursuant to the prior supplements was not reviewed in accordance with the governing regulation.
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When viewed in this light, the Chapman declaration reveals that nothing has changed under ADX’s new policy. Notably, the Chapman declaration states that, when an incoming publication identifies an inmate or staff member, the warden of ADX will make an individualized assessment of each publication, taking into account various factors and relying upon the warden’s own correctional experience and judgment. That may be a perfectly adequate way to deal with incoming publications identifying inmates and staff. That, however, is a merits question. The question, here, is whether that policy moots plaintiff’s concerns. The only answer the Court can reach is that it does not because, in order to find otherwise, the Court would have to assume that, prior to the Chapman declaration, wardens at ADX did not perform an individualized assessment of such matters. Put another way, the Court would have to assume that, rather than assessing whether an incoming publication was detrimental to the security, good order, or discipline of ADX, wardens just rejected any incoming publication that mentioned an inmate or staff member.
To be clear, the Court is not prepared to assume—when it has not been affirmatively conceded or stated—that wardens at ADX ignored their governing regulations and presumably applied their own standards. To the extent this involves a construction of the evidence presented, the Court construes the evidence, including the Chapman declaration, against defendant in this respect. See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (explaining that a court may resolve factual disputes in assessing a challenge to the Court’s subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) without converting the underlying motion to dismiss into a motion for summary judgment or a Fed.R.Civ.P. 12(b)(6) motion).
Viewed in this light, the Court also does not find anything exceptional about the assertion in the Chapman declaration that no issue of plaintiff’s publication was rejected in 2016. (See ECF
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No. 31-1 at ¶ 22.) The same is true about 2015, when the old “name-alone policy” was allegedly in effect. (See id. at ¶ 23.) As such, as the Court said at the outset, very little has clearly changed in defendant’s policy. Whether plaintiff will win in any subsequent merits battle over that policy is debatable at best, but that does not mean that the debate cannot take place.
Ultimately, a case is moot “when a plaintiff no longer suffers an actual injury that can be redressed by a favorable judicial decision.” Ind v. Colorado Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (quotation and internal quotation omitted). Here, plaintiff has suffered an injury—the rejection of its publication for including, inter alia, names of inmates and/or staff members on the ground that the same were deemed detrimental to the security, good order, or discipline of ADX—and that may (although not necessarily will) be resolved by a favorable judicial decision—i.e., finding the inclusion in publications of inmate and/or staff names not to be detrimental to the security, good order, or discipline of ADX.
The Court reaches a similar conclusion, although for different reasons, with respect to plaintiff’s procedural due process claim. Defendant now argues that, that claim is also subject to dismissal as being moot.3 (ECF No. 66 at 19-20.) Defendant argues that, because plaintiff’s rejected publications have been delivered, plaintiff has received the “best outcome” that more process could yield. (Id. at 19.) Defendant further argues that plaintiff lacks standing to pursue relief related to
3 The Court notes that defendant did not raise this argument before the Magistrate Judge. (ECF No. 66 at 19 n.7.) The Court does not condone defendant raising this argument for the first time now, especially when so much time and effort was spent in the original briefing. As far as the Court is concerned any rule that allows defendant to do so merely wastes time (that of the Magistrate Judge) and encourages misguided lawyering. Alas, rules appear in place to aid the misguided and dilatory lawyer. Cf. McZeal v. Ocwen Loan Servicing, LLC, 679 F. App’x 674, 679 (10th Cir. 2017) (explaining that, because an argument that a magistrate judge lacked authority does not affect subject matter jurisdiction, an objection to that lack of authority may be waived).
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future publications because there is no “certainly impending” injury associated with defendant’s procedures. (Id. at 19-20.)
As for the “best outcome” argument, the Court views things differently. Defendant cites cases in this regard for the proposition that the purpose of procedural due process is to produce “procedural protections as the particular situation demands” or to give a party an opportunity to refute a charge. (ECF No. 66 at 19 (citations omitted)). The Court does not find that delivering plaintiff’s prior rejected publications provides plaintiff with the procedural protections it requests or with an opportunity to refute a charge. Notably, the Complaint alleges that defendant’s current procedural protections do not allow plaintiff the opportunity to refute the charge that its publications can be rejected. (See ECF No. 1 at ¶¶ 37-39, 45.) And there is no argument that the February 2016 supplement will change those pre-existing procedural conditions. The February 2016 supplement is entirely silent on the subjects of timeliness of notice and providing reasons for a rejection. Viewed in that light, it appears that the February 2016 supplement will change nothing about those conditions.
In addition, the Court rejects defendant’s argument that any future injuries rest on a “speculative chain of possibilities.” (See ECF No. 66 at 20 (quotation omitted)). Although the Court acknowledges that no issue of plaintiff’s publication has been rejected since April 2014, the fact that the last rejection was more than three years ago is not the issue for the Court. Instead, the issue is that, when an issue is rejected, it is guaranteed (based on the experience of every prior rejection) that plaintiff will not receive any explanation for the rejection. (See ECF No. 1 at ¶¶ 39, 45.) The same level of certainty may not exist with respect to the notice (or lack thereof) that plaintiff may receive, but it still appears a strong bet that plaintiff will receive untimely notice of a rejection. (See id. at ¶ 38.) Moreover, although less important, this is an easy procedural fix. The February 2016
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supplement could have easily provided for procedures that require notifications to be sent on a more timely basis, but did not.
As a result, the Court does not find that the procedural injuries alleged in the Complaint to have been rendered moot by the delivery of the rejected issues of plaintiff’s publication.
Although not a necessity, in light of finding this case not to be moot, the Court chooses to address one of the exceptions to the mootness doctrine—the “voluntary cessation” exception—for the purpose of making the record clear. That is, even if the Court had found this case (and every claim) to be completely one hundred percent moot, the Court would have found that the “voluntary cessation” exception applied, and thus, kept this case alive.
“A plaintiff’s claim is not rendered moot by the voluntary cessation of a challenged practice which the defendant is free to resume at any time.” Ind, 801 F.3d at 1214. “This exception to mootness exists to counteract the possibility of a defendant ceasing illegal action long enough to render a lawsuit moot and then resuming the illegal conduct.” Id. (quotation omitted). The exception clearly applies here, as, according to defendant, it has voluntarily ceased its “name-alone policy,” and the February 2016 supplement and/or the statements in the Chapman declaration could be changed at any time, just like those documents allegedly changed previous practices.
The issue here is whether an exception to the voluntary cessation exception applies. Notably, voluntary cessation may still moot a case if two conditions are satisfied: “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Ind, 801 F.3d at 1214. “The defendant bears the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Id. (quotation and internal quotation omitted) (emphasis added). “Moreover, voluntary cessation of offensive conduct will only moot
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litigation if it is clear that the defendant has not changed course simply to deprive the court of jurisdiction.” Id. (quotation omitted). In Ind, the Tenth Circuit concluded the record was devoid of evidence that a prisoner’s change from administrative segregation to the general population was a “ploy” to deprive the district court of jurisdiction; instead, the evidence showed that the prisoner was placed in the general population after successfully completing required phases of administrative segregation. Id. The Tenth Circuit also rejected the district court’s finding that there was a real possibility that the prisoner would be returned to administrative segregation, having spent more than half of his prison sentence there. The Tenth Circuit concluded that the district court’s finding ignored a well-established principle that a party seeking relief, such as the prisoner, would not repeat the type of misconduct that put him at risk of injury in the first place. Id.
Unlike Ind, the Court finds that there is evidence in the record that any change in defendant’s practices have been a “ploy” to avoid this Court’s jurisdiction. As an initial matter, for purposes of considering the first condition defendant must satisfy, the Court will assume that past wardens at ADX ignored the governing regulation and implemented a “name-alone policy” that was not based upon detriment to the institution’s security, good order, or discipline, and thus, the statements in the Chapman declaration changed that practice. Even making that severe assumption in defendant’s favor, there is evidence (or at least allegations that have not been refuted) of a ploy.
It comes from the Complaint. Specifically, the Complaint alleges that plaintiff appealed the rejection of four of its publications. (ECF No. 1 at ¶ 41.) In one of those appeals, plaintiff explained that its publication reported on a published opinion from the Tenth Circuit. (Id. at ¶ 44.) In a letter dated September 30, 2013 upholding that rejection, the Bureau of Prisons’ Regional Director stated that the publication was properly rejected as it contained information on individuals incarcerated at
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ADX.4 (Id. at ¶ 46.) In other words, rather than changing the “name-alone policy,” defendant affirmed it.
The Complaint further alleges that, on June 30, 2015, i.e., again prior to initiation of this lawsuit on October 1, 2015, defendant was presented with another opportunity to correct its practices. Notably, defendant was sent a letter, explaining that the rejection of entire issues of plaintiff’s publication and the failure to provide timely and adequate notice of rejections violated the U.S. Constitution. (Id. at ¶¶ 48-49.) The letter requested that defendant stop these practices. (Id. at ¶ 49.) Did defendant do so? No. Instead, the then warden of ADX, Warden John Oliver, stated that future issues of plaintiff’s publication would be more thoroughly reviewed to ensure that information contained in the same was not publicly available to prisoners. (Id. at ¶ 50.)
To summarize, when given the opportunity pre-suit to change its practices, defendant chose to take a different road and stick by them. It was only when this case began—in fact, more than ten months after initiation—that defendant decided to allegedly change course. What is the one thing that has changed between defendant’s refusal to change and its new course? This case. Thus, the Court finds that the facts here are entirely different to the facts in Ind, where the thing that changed was the prisoner’s satisfactory completion of required phases of administrative segregation. See also Ghailani v. Sessions, 859 F.3d 1295, 1302 (10th Cir. 2017) (explaining that the Circuit had no reason to question the government’s good faith where it was “unlikely the government suspended [special administrative measures] on a prisoner whom it thought posed a threat of serious bodily injury to American citizens just to moot a case it won below on the merits.”).
4 The Court notes that the September 30, 2013 letter from the Regional Director is further evidence that the February 2016 supplement and the Chapman declaration changed nothing about defendant’s past practices. The letter expressly stated that an incoming publication could only be rejected if it was deemed detrimental to security, good order, or discipline, and then—in the next sentence—stated that a publication was properly rejected as it contained information on individuals incarcerated at ADX.
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In this light, the Court finds that, based upon the unrefuted allegations of the Complaint, there is evidence in the record that defendant was effectively dragged by this case to allegedly change some of its practices, and that is enough for the Court to find that defendant has not met its heavy burden of satisfying this Court that its challenged practices cannot reasonably be expected to recur. Although the Court acknowledges that, despite defendant’s heavy burden in this regard, the Tenth Circuit has stated that “[i]n practice,” this burden “has not prevented government officials from discontinuing challenged practices and mooting a case,” see Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010), the burden must mean something however much “solicitude” is given to public servants, see id. at 1116 n.15. At the very least, the Court finds that, in light of the unrefuted allegations in the Complaint, defendant is not entitled to a presumption of good faith. See id. The timing of events both pre and post-suit is simply too much for the Court to afford defendant any such presumption.
That is simply the first condition of the two conditions defendant must satisfy. The Court also finds that defendant has failed to satisfy the second condition—interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. First, as explained supra, the Court does not find that defendant’s practices have changed at all in this case. The warden at ADX is still required to consider whether the mention of an inmate or staff member in an incoming publication poses a detriment to security, good order, or discipline. Assuming, arguendo, that, that practice has somehow changed, the past practice has certainly not been completely and irrevocably eradicated.
Even if the Court was willing to make that later assumption as well, there are still alleged violations the effects of which are still in place. Notably, the February 2016 supplement and the Chapman declaration do nothing to change defendant’s apparent belief that 28 C.F.R. § 540.71(d)
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does not apply to it. That provision requires a warden to advise an inmate of the reasons for a publication being found unacceptable. 28 C.F.R. § 540.71(d). Nowhere does the February 2016 supplement or the Chapman declaration explain that defendant’s practice of not providing any reasons for its rejections has changed. In addition, plaintiff also challenges defendant’s practice of rejecting entire issues of its publication, rather than removing purportedly offensive portions therein. (ECF NO. 1 at ¶ 35.) The Chapman declaration makes perfectly clear that, that practice will remain notwithstanding any other changes. (ECF No. 31-1 at ¶ 7.) It is, thus, hard to discern how the Court could find that the all-or-nothing practice has been completely and irrevocably eradicated.
As a result, the Court finds that neither the first nor the second condition has been satisfied, and thus, the voluntary cessation exception applies here, and thus, this case has not been rendered moot by any post-suit changes that defendant may have put in place at ADX.
Accordingly, the Court DENIES the motion to dismiss because this case is not moot and/or the “voluntary cessation” applies, and ADOPTS the R&R to the extent consistent with this Order.5
This leaves the motion to stay. That motion is premised solely upon this case being stayed while the Court considers whether it has subject matter jurisdiction and whether plaintiff has alleged plausible claims. (See generally ECF No. 34.) Because the Court has resolved both of those issues against defendant, the Court DENIES the motion to stay.
********
5 For substantially similar reasons to those expressed herein, the Court declines to exercise its discretion to find this case prudentially moot, as, on the current record, there is nothing “attenuated” about the controversies in this case. (See ECF No. 66 at 13.) The Court also notes that defendant raises no objection to the Magistrate Judge’s findings with respect to defendant’s arguments that plaintiff has failed to allege plausible claims. (See generally ECF No. 66.) As a result, the Court ADOPTS those findings herein.
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Having reviewed this case in its entirety, the Court does make the following observations about matters to come. As far as the Court can discern, there appears little need in this case for much, let alone extensive, discovery. Moreover, although defendant has not accepted or attempted to change all of the alleged violations in the Complaint, formal movement has been made. Notably, the policy enunciated in the Chapman declaration about performing individualized assessments of each publication, taking into account specific factors, and allowing the warden of ADX to apply his or her experience (see ECF No. 31-1 at ¶ 26), appears a substantial and noteworthy formal acknowledgment of defendant’s practice for reviewing incoming publications. At this juncture, the Court sees little wrong with it. Undoubtedly there may be room to go. Not least with respect to defendant’s failure to acknowledge (unlike the aforementioned practice) that it is required by regulation to give reasons for any rejection of an incoming publication, as well as the potentially weak ground that defendant’s all-or-nothing policy may stand. The Court does not mean to make conclusive findings with respect to any of these matters now. The Court simply makes these observations in the hope that it will facilitate the parties’ future conduct in this case. V. Conclusion
For the reasons discussed herein, the Court DENIES the motion to dismiss (ECF No. 31) and the motion to stay (ECF No. 34). The Court ADOPTS the R&R (ECF No. 62) to the extent consistent with this Order, and REJECTS defendant’s objections to the R&R (ECF No. 66). The March 28 Order (ECF No. 71) is VACATED and the Clerk is instructed to STRIKE the same from the record.
The parties are instructed to hold a pre-scheduling conference pursuant to Fed.R.Civ.P. 26 and file a proposed scheduling order within twenty-eight (28) days of entry of this Order. Within
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Case 1:15-cv-02184-RM-STV Document 81 Filed 08/14/17 USDC Colorado Page 19 of 19 seven (7) days of entry of this Order, the parties should contact the chambers of the Magistrate Judge to arrange a scheduling conference under Fed.R.Civ.P. 16. SO ORDERED. DATED this 14th day of August, 2017. BY THE COURT: ____________________________________ RAYMOND P. MOORE United States District Judge
19

 
 News v. Federal Bureau of Prisons, Slip Copy (2018) 2018 WL 10466903
2018 WL 10466903 Only the Westlaw citation is currently available.
United States District Court, D. Colorado. Prison Legal NEWS, Plaintiff, v.
The FEDERAL BUREAU OF PRISONS, Defendant.
Civil Action No. 15-cv-02184-RM-STV |
Signed 10/25/2018
Attorneys and Law Firms
Addar Weintraub, Alyson Rose Sandler, Matthew S. Shapanka, Peter Andrew Swanson, Terra White Fulham, Covington & Burling, LLP, Washington, DC, Masimba Maxwell Mutamba, Sabarish P. Neelakanta, Human Rights Defense Center, Lake Worth, FL, Steven David Zansberg, Ballard Spahr LLP, Denver, CO, for Plaintiff.
Clay C. Cook, Marcy Elizabeth Cook, Susan Begesse, Prose,. U.S. Attorney’s Office, Denver, CO, Kaitlin Brianne Turner, Federal Correctional Complex, Florence, CO, for Defendant.
ORDER
RAYMOND P. MOORE, United States District Judge
*1 This matter comes before the Court on Defendant’s motion for summary judgment (ECF No. 106); Plaintiff’s opposition to the motion (ECF No. 109); and Defendant’s reply (ECF No. 114). For the reasons stated below, the motion is GRANTED, and this case is DISMISSED WITHOUT PREJUDICE as MOOT.

to subscribing inmates, including several at the Administrative Maximum Facility (“ADX”) in Florence, Colorado. ADX is administered by Defendant the Federal Bureau of Prisons (“BOP”). Per BOP regulations, inmates may receive publications like Prison Legal News unless they are “detrimental to the security, good order, or discipline of the institution or ... might facilitate criminal activity.” 28 C.F.R. § 540.71(b). BOP regulations further require that “the Warden shall review the individual publication prior to the rejection of that publication.” Id. § 540.71(c). “Where a publication is found unacceptable, the Warden shall promptly advise the inmate in writing of the decision and the reasons for it,” id. § 540.71(d), and provide the sender of the unacceptable publication with a copy of the rejection letter, id. § 540.71(e). Publishers and inmates can both appeal rejection decisions.
Between January 2010 and April 2014, the BOP refused to deliver eleven issues of Prison Legal News to prisoners at ADX. The BOP notified inmates of the rejections by letter, stating that the issues were rejected, at least in part, because of references to BOP inmates and staff members. This is referred to as the “name-alone practice.” The letters did not explain how such references were detrimental to the security of ADX. The BOP asserts that copies of the rejection letters were mailed to PLN, but PLN alleges that it never received one of the letters and that some of them were not received until six to nine months after the rejections. PLN appealed four of the rejections, but the BOP’s Regional Director upheld them without additional explanation. In response to further inquiry by PLN, the Regional Director explained that one issue was rejected because it contained information on BOP inmates and that “[s]pecific inmate names, location housed, case details, and other information may pose a security concern.” (ECF No. 1-6 at 2.)
The name-alone practice remained in place until after PLN filed this lawsuit in October 2015. The lawsuit prompted the BOP to reevaluate the previously rejected issues, and it decided to deliver them to inmates who were still at ADX in March 2017. The name-alone practice was formally and expressly abolished in the BOP’s December 2017 supplement to its policy on incoming publications.

I. Introduction Plaintiff Prison Legal News (“PLN”) produces Prison Legal News, a monthly magazine designed to help inmates navigate the criminal justice system, and sends it

II. Procedural History
A. PLN’s Complaint PLN filed its complaint in October 2015, asserting the

News v. Federal Bureau of Prisons, Slip Copy (2018)
2018 WL 10466903
BOP violated its First Amendment rights by censoring protected speech (“Claim One”); violated its Fifth Amendment rights by failing to provide timely and adequate notice of the rejections (“Claim Two”); and violated the Administrative Procedure Act (“APA”) by acting arbitrarily and capriciously (“Claim Three”).
*2 The gist of Claim One is that the BOP of should not have considered an issue of PLN’s magazine detrimental to the security of ADX simply because it contained information about a BOP inmate or staff member, particularly when that information was already known to inmates or available to them or the public through other means. PLN also challenges the BOP’s policy of rejecting issues of Prison Legal News in their entirety, rather than redacting portions that were deemed unacceptable. The gist of Claim Two is that the BOP failed to provide timely and adequate notification to PLN about the rejections. PLN alleges that it received some of the rejection letters six to nine months after the publications were rejected and in one instance never received a letter. PLN also alleges that none of the letters adequately explained how the content of its magazine was detrimental to the security of ADX. Claim Three reiterates the same basic allegations as an ADA claim.
PLN seeks a declaration that the BOP’s conduct violated the First and Fifth Amendments and the APA; injunctive relief compelling the BOP to deliver the rejected issues and any future issues “absent a legitimate penological interest supported by specific facts” (ECF No. 1 at 16); injunctive relief compelling the BOP to provide, if any future issues are censored, “timely, individualized, specific, and detailed notice that includes an explanation of why the article(s) or page(s) in question are subject to censorship under 28 C.F.R. § 540,” (id.); and costs and attorney fees.

revised policy, they were accepted and delivered to those inmates still at ADX. Thus, the BOP contended, it had done everything it could do to address PLN’s complaint, and PLN was no longer suffering from an actual injury that could be redressed by a favorable decision. The BOP also argued PLN failed to state a claim regarding the BOP’s practice of rejecting publications in their entirety rather than redacting unacceptable portions or removing pages. The BOP contended that the Supreme Court upheld a similar practice in Thornburgh v. Abbott, 490 U.S. 401, 418-19 (1989) (“[T]he administrative inconvenience of [tearing out the rejected portions of a publication] is ... a factor to be considered and adds additional support to the District Court’s conclusion that petitioners were not obligated to adopt it.”).
With respect to Claim Two, the BOP argued that PLN failed to state a due-process claim because it had in fact received notice and an opportunity to be heard regarding each of the rejections. The BOP asserted that in accordance with its administrative procedures, it had mailed rejection letters to PLN shortly after it delivered them to the inmates, and it argued that PLN’s unsupported assertions that one of them was never received and that others were not received until six to nine months after the rejections were not entitled to the presumption of truth. PLN was informed by inmates about the rejection for which it allegedly did not receive a letter; therefore, it had actual notice of the rejection. The BOP also pointed out that with respect to four of the notices, PLN had availed itself of the opportunity to be heard by appealing to the Regional Director. Although PLN was not satisfied with the outcome of these appeals, the BOP contended that the requirements of due process were met.
*3 The BOP argued that the reasons for dismissing the constitutional claims also supported dismissing Claim Three, which was brought under the APA.

B. The BOP’s Motion to Dismiss In July 2016, the BOP moved to dismiss the complaint, arguing that changes to its policy on incoming publications rendered part of Claim One moot and that the voluntary-cessation exception to the mootness doctrine did not apply. According to the BOP, the February 2016 supplement abolished the name-alone practice, established enhanced review procedures before a publication could be rejected, and instituted additional training for BOP staff regarding the review procedures. Rejections were reduced significantly under the revised policy, and the BOP had declared its intention that the name-alone practice would not be reinstated. Once the eleven previously rejected issues were reviewed under the

C. Denial of the BOP’s Motion The Court concluded that the BOP’s reliance on its revised policy on incoming publications was misplaced because “the February 2016 supplement change[d] very little if anything about ADX’s treatment of incoming publications.” (ECF No. 81 at 8.) The case was not moot, the Court ruled, because the revised policy did not actually eliminate the name-alone practice or address a core concern of PLN’s complaint—that issues of Prison Legal News had been deemed “detrimental to the security, good order, or discipline of the institution” under § 540.71(b) simply because they included the names of BOP inmates or staff members. Nor did the February

News v. Federal Bureau of Prisons, Slip Copy (2018)
2018 WL 10466903
2016 supplement change the way a publisher would be notified if a publication was rejected. Indeed, it was “entirely silent on the subjects of timeliness of notice and providing reasons for a rejection.” (ECF No. 81 at 12.) In light of the shortcomings of the February 2016 supplement, the Court concluded it did not moot PLN’s claims.
The Court also ruled that the claims were not moot because the voluntary-cessation exception to the mootness doctrine applied. See Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1214 (10th Cir. 2015) (“A plaintiff’s claim is not rendered moot by the voluntary cessation of a challenged practice which the defendant is free to resume at any time.”). Although the BOP had reevaluated the previously rejected issues under its revised policy and delivered them to inmates who were still at ADX, the Court noted that this occurred only after PLN filed the lawsuit. Moreover, despite PLN’s earlier appeals of the rejections, the BOP had twice declined to make any changes to its procedures or policies. As a result, the BOP was not entitled to a presumption of good faith. Further, the BOP had not met its burden of establishing that the February 2016 supplement had completely and irrevocably eradicated the effects of the alleged violations of PLN’s rights or that its challenged practices could not reasonably be expected to recur.
D. The BOP’s Motion for Summary Judgment The BOP filed an answer (ECF No. 88) in September 2017 and then its motion for summary judgment (ECF No. 106) in May 2018. The BOP now asserts that PLN’s claims are mooted by the December 2017 supplement to its policy on incoming publications. Through its current warden, the BOP has declared its intention to maintain the new policy going forward. Pertinent paragraphs of that policy are quoted in part below, with portions that were added since the February 2016 supplement in italics:
B. The receiving [Correctional Systems Officer] will review all incoming publications for potentially objectionable content in accordance with 28 C.F.R. § 540.70 et seq. If content is preliminarily deemed objectionable by the receiving CSO, the objectionable incoming publication will be forwarded to the Special Investigative Services (SIS) department for additional review in accordance with 28 C.F.R. § 540.70 et seq. SIS staff will review each individual incoming publication and, if rejection is recommended, prepare a letter for the Warden’s signature. All recommended rejection letters must notate, in writing, specific objectionable pages and content, as well as the

national policy and Code of Federal Regulations citation.
*4 C. An incoming publication at the ADX may not be rejected solely because it discusses an ADX or [BOP] inmate, or BOP staff member. When a publication identifies and discusses an ADX or BOP inmate, or BOP staff member, SIS staff must conduct an individualized assessment of each such incoming publication, taking into account specific information about the inmate or staff member, the content of the article, how that information may affect institutional security at the ADX, and include an evaluation of the factors in 28 C.F.R. § 540.70(b). Staff should rely upon his/her correctional experience, using sound correctional judgment, in making this individualized assessment.
....
G. When an incoming publication is rejected, the Warden will promptly advise the inmate and publisher in writing of the decision and the reason(s) for it. The notice must contain reference to the specific article(s) or material(s) considered objectionable, including page references and quotes from the incoming publication. The Warden will advise the publisher or sender that the publisher may obtain independent review of the rejection by writing to the Regional Director within 20 days of the rejection letter. Ordinarily, the rejection notice will be mailed to the publisher within ten business days from the Warden’s signature date.
(ECF No. 106-2 at 20-21.)
The BOP’s motion is fully briefed, as is PLN’s motion for partial summary judgment (ECF No. 104).
III. Summary Judgment and Mootness Summary judgment is appropriate only if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or is so one-sided that one party must prevail as a matter of law. Id. “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v. Harris, 550 U.S. 372, 380 (2007) (brackets

News v. Federal Bureau of Prisons, Slip Copy (2018)
2018 WL 10466903
and quotation omitted). “Unsupported conclusory allegations ... do not create a genuine issue of fact.” In re Grandote Country Club Co., 252 F.3d 1146, 1149 (10th Cir. 2001).
Before reaching the merits of this case, however, we must consider the jurisdictional question of mootness. “Mootness is a threshold issue because the existence of a live case or controversy is a constitutional prerequisite to federal court jurisdiction.” Ind, 801 F.3d at 1213 (quotation omitted). When a lawsuit is filed, a plaintiff must demonstrate “(1) an injury in fact; (2) a causal connection between the injury and the challenged action; and (3) a likelihood that a favorable decision will redress the injury.” Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011). However, “[i]f an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during the litigation, the action can no longer proceed and must be dismissed as moot.” Brown v. Buhrman, 822 F.3d 1151, 1165 (10th Cir. 2016) (quotation omitted).
*5 Voluntary cessation is an exception to the mootness doctrine. “A plaintiff’s claim is not rendered moot by the voluntary cessation of a challenged practice which the defendant is free to resume at any time.” Ind, 801 F.3d at 1214 (emphasis added). “Voluntary cessation may moot litigation, however, if ... (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (quotation omitted). “The defendant bears the heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.” Id. (brackets and quotation omitted).
IV. Discussion This case has evolved in three important ways since the Court’s denial of BOP’s motion for summary judgment. First, the BOP issued the December 2017 supplement to its policy on incoming publications. That supplement directly addresses the core concerns of PLN’s complaint in ways that the February 2016 supplement was found to be lacking. Second, the matter is before the Court on a motion for summary judgment. As such, the Court need not accept as true factual allegations in PLN’s complaint that are not supported by evidence in the record. See In re Grandote Country Club, 252 F.3d at 1150 (“To withstand summary judgment, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” (quotation omitted)). Third, PLN has

crystalized its position that it is bringing only “as-applied claims under the First and Fifth Amendments.” (ECF No. 109 at 18.)
A. Claim One Paragraph C of the December 2017 supplement (quoted above in full) proscribes the rejection of a publication “solely because it discusses an ADX or [BOP] inmate, or BOP staff member.” (ECF No. 106-2 at 21, ¶ C). The December 2017 supplement expressly ends the name-alone practice, and there is no evidence that the name-alone practice persisted beyond December 2017. Less clear is the extent to which the practice was phased out while the February 2016 supplement was still in effect. The previously rejected issues of Prison Legal News were delivered to inmates who were still at ADX in March 2017. There is no evidence that any of those issues could be rejected under the December 2017 supplement, which, like the February 2016 supplement, continues to allow the rejection of a publication that is detrimental to the security of ADX. See § 540.71(b). “[A] plaintiff’s continued susceptibility to injury must be reasonably certain; a court will not entertain a claim for injunctive relief where the allegations take it into the area of speculation and conjecture.” Jordan, 654 F.3d at 1024 (brackets and quotation omitted). Because the previously rejected issues have been delivered and the BOP’s policy going forward has changed, PLN’s as-applied challenge to the BOP’s allegedly improper rejection of them can proceed no further.
PLN contends that the effects of the rejections have not been completely and irrevocably eradicated by the elimination of the name-alone practice, but it has not shown that it faces a credible threat that its publications will be improperly rejected on some other basis. See Jordan, 654 F.3d at 1024 (“[A] court will not entertain a claim for injunctive relief where the allegations take it into the area of speculation and conjecture.” (brackets and quotation omitted)). PLN also contends that the BOP’s policy may be changed by a future warden. But “that possibility does not breathe life into an otherwise moot case.” Brown v. Buhman, 822 F.3d 1151, 1175 (10th Cir. 2016). The prospect that the BOP will resume censoring the PLN’s magazine under the name-alone practice or for some other unspecified and improper reason is speculative and remote. See id. at 1176.
*6 To the extent PLN contends that the BOP’s practice of rejecting issues Prison Legal News in their entirety violates its rights, all of the previously rejected issues have issues have been delivered, so it cannot meet the

News v. Federal Bureau of Prisons, Slip Copy (2018)
2018 WL 10466903
injury-in-fact requirement. “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). PLN has not identified any continuing, present adverse effects associated with this practice. Therefore, Claim One is now moot.
B. Claim Two Some of PLN’s allegations with respect to this claim, though sufficient to withstand the BOP’s motion to dismiss, are insufficient to withstand BOP’s motion for summary judgment. First, although PLN alleges that it did not receive a rejection letter regarding the BOP’s rejection of the November 2011 issue of Prison Legal News, it does not cite any evidence to support this allegation. The record includes a copy of the letter, which states it was sent to PLN. The lack of evidence supporting PLN’s contention, along with the presumption of regularity that attaches to administrative procedures, see, e.g., Yuk v. Ashcroft, 355 F.3d 1222, 1232 (10th Cir. 2004), compels the Court to conclude that PLN has not carried its burden of showing a genuine issue of material fact with respect to this issue. And in any event, PLN concedes that it received actual notice of the rejection from subscribing inmates who did receive rejection letters.
Second, PLN’s allegation regarding to the six-to-nine-month delay in receiving rejection letters also lacks evidentiary support. The BOP states that in accordance with its administrative procedures, the letters were mailed to PLN either in the same month as the date of publication or within the following month. The BOP further states that it “is without knowledge or information sufficient to form a belief as to the date on which [PLN] received the rejection notices or the reasons that may have caused any delay.” (ECF No. 88 at 8, ¶ 38.) Again, PLN’s unsupported allegation is insufficient to overcome the presumption of regularity that attaches to administrative procedures, see Yuk, 355 P.3d at 1232, and the Court declines to accept it as true at this stage of the litigation.
Paragraph G of the December 2017 supplement provides that rejection notices will ordinarily be sent to the publisher within ten business days after a publication is rejected. This appears to shore up a key deficiency in the BOP’s policy identified by the Court in its denial of the BOP’s motion to dismiss. PLN has not shown that this addition to the BOP’s policy is insufficient to satisfy its due-process concerns stemming from its as-applied

challenge to the BOP’s rejection of eleven issues of its magazine. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010) (“The crucial question [when determining whether a claim is moot] is whether granting a present determination of the issues offered will have some effect in the real world.” (quotation omitted)).
With respect to the whether the BOP provided adequate reasons for rejecting the eleven issues, PLN has not shown that the December 2017 supplement did not moot those concerns. With its decision to deliver the previously rejected issues, the BOP effectively rescinded the rejection letters. Because the rejection letters are no longer pending and the BOP has modified its policy on notifying publishers about rejections, there is no basis to conclude that PLN’s continued susceptibility to injury is reasonably certain. Moreover, paragraphs E and G require added specificity for recommendations for rejection, which must contain “specific objectionable pages and the national policy cite,” (id. at ¶ E), and the rejection notices themselves, which must contain “reference to the specific article(s) or material(s) considered objectionable, including page references and quotes from the incoming publication,” (id. at ¶ G). The Court concludes the BOP has carried its burden to show that there is no reasonable possibility that the alleged violations will recur. Accordingly, this claim, too, is now moot.
C. Claim Three *7 In light of the Court’s conclusion that PLN’s constitutional claims are now moot, PLN has not shown the BOP acted arbitrarily or capriciously. Therefore, the APA claim is also moot.
V. Conclusion The BOP’s motion for summary judgment (ECF No. 106) is GRANTED and the case is DISMISSED WITHOUT PREJUDICE as MOOT. PLN’s pending motion for partial summary judgment (ECF No. 104) is DENIED as MOOT.
All Citations
Slip Copy, 2018 WL 10466903

News v. Federal Bureau of Prisons, Slip Copy (2018) 2018 WL 10466903

 
 Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

944 F.3d 868 United States Court of Appeals, Tenth Circuit.
PRISON LEGAL NEWS, Plaintiff - Appellant, v.
FEDERAL BUREAU OF PRISONS, Defendant Appellee.
Uptown People’s Law Center; Danielle C. Jefferis; Nicole B. Godfrey, Amici Curiae.
No. 18-1486 |
FILED December 13, 2019
Synopsis Background: Publisher of prison magazine filed suit against Federal Bureau of Prisons (BOP), alleging BOP’s rejection of 11 for distribution to inmate subscribers at prison violated publisher’s First Amendment rights, its Fifth Amendment procedural due process rights, and the Administrative Procedure Act (APA), and requesting declaratory and injunctive relief. The United States District Court for the District of Colorado, Raymond P. Moore, J., granted BOP’s motion for summary judgment, denied publisher’s motion for partial summary judgment, and dismissed case as moot. Publisher appealed.
Holdings: The Court of Appeals, Matheson, Circuit Judge, held that:
publisher’s request for injunctive relief as to past 11 publications was rendered moot;
publisher’s request for declaratory relief as to past 11 publications was rendered moot;
any request by publisher for injunctive relief as to future publications substantially similar to past 11 publications was rendered moot;
any request by publisher for injunctive relief as to future publications not substantially similar to past 11 publications was rendered moot;
BOP demonstrated that voluntary cessation exception to mootness did not apply to publisher’s content censorship
1

claim;
BOP demonstrated that voluntary cessation exception to mootness did not apply to publisher’s non-redaction censorship claim; and
publisher’s procedural due process claim was rendered moot and voluntary cessation exception to mootness did not apply.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
*873 Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-02184-RM-STV)
Attorneys and Law Firms
Matthew S. Shapanka of Covington & Burling LLP, Washington, D.C. (Peter A. Swanson, Terra W. Fulham, Alyson R. Sandler of Covington & Burling LLP, Washington D.C.; Steven D. Zansberg of Ballard Spahr LLP, Denver, Colorado, with him on the briefs) for Plaintiff - Appellant.
J. Bishop Grewell, Assistant United States Attorney (Jason R. Dunn, United States Attorney with him on the brief), Denver, Colorado, for Defendant - Appellee.
Nicholas J. Siciliano, Dylan Glenn of Latham & Watkins LLP, Chicago, Illinois, filed an amicus curiae brief in support of Plaintiff - Appellant for Danielle C. Jefferis, Nicole B. Godfrey, and Uptown People’s Law Center.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
Opinion
MATHESON, Circuit Judge.
Prison Legal News (“PLN”) publishes a monthly magazine to help inmates navigate the criminal justice system. Between January 2010 and April 2014 (the “Rejection Period”), the Federal Bureau of Prisons (“BOP”) rejected the distribution of 11 publications PLN

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

sent to inmate subscribers at the BOP’s United States Penitentiary, Administrative Maximum Facility in Florence, Colorado (“ADX”).1
PLN sued the BOP, claiming the rejections violated PLN’s First Amendment rights, its Fifth Amendment procedural due process rights, and the Administrative Procedure Act (“APA”). ADX responded by distributing the 11 publications, revising its institutional policies, and issuing a declaration from its current Warden. Based on these actions, the BOP moved for summary judgment, arguing that PLN’s claims were moot or not ripe. PLN filed a cross-motion for partial summary judgment on its First and Fifth Amendment claims. The district court granted the BOP’s motion and dismissed the case as moot.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Developments during litigation mooted PLN’s claims, and the voluntary cessation exception to mootness does not apply.
I. BACKGROUND
We present in chronological order the BOP actions and district court proceedings leading to this appeal. These events overlapped because the BOP continued to take actions relevant to, but outside of, the court proceedings.
*874 A. ADX’s Review of Incoming Publications
We describe (1) the BOP regulations set forth in 28 C.F.R. §§ 540.70 to 540.72 and (2) the ADX institutional supplement, a document establishing policies specific to a BOP prison facility. Both govern ADX’s review of incoming publications.
During the Rejection Period, the BOP regulations permitted inmates to receive publications without prior approval unless the publications were (a) statutorily prohibited or (b) rejected by the Warden as “detrimental to the [facility’s] security, good order, or discipline” under 28 C.F.R § 540.71(b). See 28 C.F.R. §§ 540.70-.72.
2

For any rejection, the regulations required the Warden to promptly notify the inmate in writing, provide reasons, and identify the objectionable content. Id. § 540.71(d). The Warden also had to provide the publisher with a copy of the rejection notice. Id. § 540.71(e). These regulations have not changed since the Rejection Period.
The ADX institutional supplement in effect during the Rejection Period listed a sequence of ADX personnel responsible for screening incoming publications before the Warden’s review. Only the Warden may revise the supplement.2
B. January 2010 to April 2014 – The Rejection Period
During the Rejection Period, ADX officials flagged for potential rejection any publication that referred to an ADX inmate or staff member (“name-alone content”). After further review, the BOP rejected 11 PLN publications in their entirety. For each rejection, the ADX Warden signed a notice. Each notice said the publication was rejected under 28 C.F.R. § 540.71(b), identified the objectionable pages, and explained why the content was problematic, including that the objectionable pages contained name-alone content.3
PLN contends, and several former ADX Wardens have stated, that a publication’s “name-alone content” was not a sufficient reason for rejection. Aplt. Br. at 26; App. at 1577-78, 1606.4 Former ADX Wardens provided examples of specific reasons for the rejections other than name-alone content,5 and the record shows that two notices *875 listed a reason other than name-alone content.6
C. October 2015 – PLN’s Complaint
On October 1, 2015, PLN sued the BOP in the United States District Court for the District of Colorado. It alleged the BOP violated (1) its First Amendment rights, (2) its Fifth Amendment due process rights, and (3) the APA.

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

First, PLN alleged the BOP censored First Amendment-protected speech (the “content censorship claim”). PLN averred this “censorship ... [was] not rationally related to any legitimate and neutral government purpose” because “the allegedly objectionable information [did] not pose any risk to the security, discipline, or good order of ADX.” Id. at 23. PLN also claimed the BOP’s rejection of publications in their entirety constituted improper censorship because redaction was “an obvious and easy alternative” (the “non-redaction censorship claim”). Id.7
Second, PLN alleged the BOP’s rejections “failed to provide PLN with timely and adequate notice” and an opportunity to contest (the “procedural due process claim”). Id. at 24.8 PLN claimed the rejection notices’ “uninformative, perfunctory language” provided insufficient detail to place PLN on notice. Id.
Third, PLN alleged the BOP violated the APA by taking actions “constitut[ing] arbitrary and capricious decision making.” Id. at 25.
PLN requested the following relief:
(1) A declaration that the BOP’s censorship of Prison Legal News violated the First and Fifth Amendments and the APA;
(2) injunctive relief compelling the BOP to deliver (a) the rejected publications and (b) all future Prison Legal News publications, unless the BOP had a valid penological reason to reject them;
(3) injunctive relief compelling the BOP to provide PLN with, for any future rejections, (a) timely and individualized notice with a justifying explanation and (b) timely opportunity to contest;
(4) “further relief as the [c]ourt deem[ed] just and equitable.”
Id. at 27-28.
PLN did not request monetary damages.
D. February 2016 – Updated ADX Supplement
3

On February 2, 2016, ADX issued an updated institutional supplement (the “February 2016 Supplement”). It required additional ADX personnel, including the legal department, to review incoming publications. Section IV.Q also required the legal department to “conduct quarterly training” with ADX personnel regarding procedures for reviewing incoming publications. Id. at 234. The February 2016 Supplement *876 did not explicitly address name-alone content.
E. July 2016 – BOP’s Motion to Dismiss
On July 27, 2016, the BOP filed a motion to dismiss. It argued various grounds for dismissal of PLN’s claims, including that PLN’s claims were mooted by the February 2016 supplement, PLN lacked standing, and PLN had failed to state a claim.
F. March 2017 – ADX Delivered the Rejected Publications
In early 2017, then-Warden Jack Fox examined the rejected publications in consultation with the BOP’s legal department.9 He concluded the BOP’s initial reasons for rejection were improper.10 Based on Warden Fox’s review, ADX delivered the 11 rejected publications to inmate subscribers in March 2017.
G. August 2017 – Denial of BOP’s Motion to Dismiss
On August 14, 2017, the district court said the case was not moot and denied the BOP’s motion to dismiss. It reasoned that the BOP’s February 2016 Supplement “change[d] very little” regarding ADX’s review of incoming publications. Id. at 582. The court also would have found the voluntary cessation exception applied because the BOP’s updated supplement was a “ploy” to avoid its jurisdiction. Id. at 588.

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

H. December 2017 – Updated ADX Supplement
On December 21, 2017, ADX issued an updated institutional supplement that remains effective (the “December 2017 Supplement”). Section III.C of the supplement states that a publication “may not be rejected solely because it discusses an ADX or [BOP] inmate, or BOP staff member,” and instead requires incoming publications to undergo “an individualized assessment.” Id. at 1787. For any rejection, the Warden must give prompt written notice to the inmate and the publisher of the decision and the ability to obtain independent review. ADX also will “[ordinarily] ... mail[ ] [the rejection notice] to the publisher within ten business days from the Warden’s signature date.” Id. Any rejection notice must identify the reasons for rejection, “refer[ ] to the specific article(s) or material(s) considered objectionable,” and include page references and quotes. Id.11
I. May 2018 – Cross-Motions for Summary Judgment
On May 14, 2018, the BOP moved for summary judgment on all claims. It attached a declaration from current ADX Warden Andre Matevousian stating the December 2017 Supplement prohibited “any past [BOP] practice of rejecting publications based on names alone,” though *877 the ADX Warden is allowed to find “the names of [BOP] inmates or staff, coupled with more details about the individual, may pose a security risk.” Id. at 1363. He stated that “ADX will continue to abide by ... the December 2017 [Supplement],” under which the 11 publications “would not be rejected.” Id. at 1366. He declared he was aware former Warden Fox had reviewed the rejected publications before deciding to deliver them to ADX inmate subscribers, and he “agree[d] with [former Warden Fox’s] assessment” that the original reasons for rejection were improper. Id.
The BOP argued its March 2017 delivery of the rejected publications, the December 2017 Supplement, and Warden Matevousian’s declaration mooted PLN’s claims. It also contended that PLN’s claims regarding future
4

rejections were not ripe. PLN filed a cross-motion for partial summary judgment on its First and Fifth Amendment claims. In its cross-motion, PLN confirmed its claims were as-applied.12
J. October 2018 – District Court Grants BOP’s Motion for Summary Judgment
In October 2018, the district court granted the BOP’s motion for summary judgment, dismissed the case without prejudice, and denied PLN’s motion for partial summary judgment. The court found that interim developments had mooted each of PLN’s claims, citing the BOP’s December 2017 Supplement, which prohibited rejecting a publication solely because it contained name-alone content, and PLN’s confirmation that its claims were only as-applied—not facial—challenges. It noted the BOP’s delivery of its previously rejected publications was an “effective[ ] resci[sion] [of] the rejection letters.” Id. at 2091.13
PLN timely appealed.
* * * *
The following table summarizes the factual and procedural events discussed above.
*878

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)
judgment standard, “[w]e view the evidence and draw reasonable inferences in the light most favorable to the nonmoving party.” Teets, 921 F.3d at 1211. The party arguing in favor of mootness due to its discontinued conduct bears the burden to show the case is moot. See United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (explaining the “burden of persuasion [of mootness] ... rests upon those in [the *879 proponent of mootness’s] shoes”); Rezaq v. Nalley, 677 F.3d 1001, 1008 (10th Cir. 2012) (“[I]t falls upon the BOP to carry [the] burden” of showing mootness). It also must meet the “heavy burden” to show that the voluntary cessation exception to mootness does not apply. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010) (quotations omitted).14

II. DISCUSSION
PLN appeals the district court’s (1) grant of the BOP’s motion for summary judgment and (2) denial of PLN’s motion for partial summary judgment. We hold that PLN’s claims became moot when ADX took intervening administrative actions and PLN confirmed its claims were as-applied. We affirm the district court’s judgment.
A. Standard of Review and Summary Judgment
We review a district court’s decision to grant summary judgment based on mootness de novo. See Teets v. Great-West Life & Annuity Ins. Co., 921 F.3d 1200, 1211 (10th Cir. 2019) (“We review a grant of summary judgment de novo. ...” (quotations omitted)); see also Brown v. Buhman, 822 F.3d 1151, 1168 (10th Cir. 2016) (explaining we review questions of mootness de novo “squarely [as] a legal determination” (quotations omitted)).
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When applying the summary
5

B. Legal Background
The following describes (1) the Constitution’s case-or-controversy requirement for federal court jurisdiction, (2) the mootness doctrine, and (3) the voluntary cessation exception to mootness.
1. Article III Case-or-Controversy Requirement Article III of the Constitution permits federal courts to decide only “Cases” or “Controversies.” U.S. Const. art. III, § 2; see Hollingsworth v. Perry, 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quotations omitted). It “requires a party seeking relief to have suffered, or be threatened with, an actual injury traceable to the appellee and likely to be redressed by a favorable judicial decision by the appeals court.” United States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007) (quotations and brackets omitted).
Courts employ three jurisdictional doctrines to “keep federal courts within their constitutional bounds”: standing, mootness, and ripeness. Brown, 822 F.3d at 1163. Standing requires the plaintiff to allege a personal

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

interest warranting federal-court jurisdiction by showing three elements: (1) “an injury in fact,” (2) a “causal connection between the injury and the conduct complained of,” and (3) redressability. Id. at 1164 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Mootness is “standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Id. (quotations omitted).15 Ripeness “prevent[s] the premature adjudication of abstract claims.” United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019) (quotations omitted).
2. Article III Mootness16 “We have no subject-matter jurisdiction if a case is moot.” *880 Rio Grande Silvery Minnow, 601 F.3d at 1109. “The crucial question is whether granting a present determination of the issues offered will have some effect in the real world.” Brown, 822 F.3d at 1165-66 (emphasis added) (quotations omitted); see Wyo. v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th Cir. 2005) (finding case mooted by defendant’s new rule, which rescinded portions of prior rule challenged by plaintiff).
An action becomes moot “[i]f an intervening circumstance deprives the plaintiff of a personal stake ... at any point.” Brown, 822 F.3d at 1165 (quotations omitted). In a moot case, a plaintiff no longer suffers a redressable “actual injury.” Ind v. Colo. Dep’t of Corrs., 801 F.3d 1209, 1213 (10th Cir. 2015) (quotations omitted). But an action is not moot if a plaintiff has “a concrete interest, however small, in the outcome.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307-08, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012) (quotations omitted).
The court must decide whether a case is moot as to “each form of relief sought.” Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019) (explaining the plaintiff’s “burden to demonstrate standing for each form of relief sought ... exists at all times throughout the litigation” (quotations omitted)). Thus, interim developments that moot a claim for prospective relief do not necessarily moot a claim for damages.17 And “[t]he mootness of a plaintiff’s claim for injunctive relief is not necessarily dispositive regarding the mootness of his claim for a declaratory judgment.” Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011).
6

“Generally, a claim for prospective injunction becomes moot once the event to be enjoined has come and gone.” Citizen Ctr. v. Gessler, 770 F.3d 900, 907 (10th Cir. 2014). A claim for declaratory relief that does not “settl[e] ... some dispute which affects the behavior of the defendant toward the plaintiff” is moot, Rio Grande Silvery Minnow, 601 F.3d at 1110 (quotations omitted), because it fails to “seek[ ] more than a retrospective opinion that [the plaintiff] was wrongly harmed by the defendant,” Jordan, 654 F.3d at 1025.
3. Voluntary Cessation Exception to Mootness Under the “voluntary cessation exception” to mootness, “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013); see also Brown, 822 F.3d at 1166.18 The exception “exists to counteract the possibility *881 of a defendant ceasing illegal action long enough to render a lawsuit moot and then resum[e] the illegal conduct,” Ind, 801 F.3d at 1214 (quotations omitted), or “evade judicial review ... by temporarily altering questionable behavior,” Brown, 822 F.3d at 1166 (quotations omitted).19
The voluntary cessation exception does not apply, and a case is moot, “if the defendant carries ‘the formidable burden of showing that it is absolutely clear20 the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Id. at 1166 (quoting Already, 568 U.S. at 91, 133 S.Ct. 721). This burden is “stringent” and “heavy.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The inquiry is fact-specific. See United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Brown, 822 F.3d at 1168.
To carry its burden, a defendant must do more than offer “a mere informal promise or assurance ... that the challenged practice will cease” or “announce[ ] ... an intention to change.” Rio Grande Silvery Minnow, 601 F.3d at 1118 (quotations omitted). A defendant’s corrective actions that “do[ ] not fully comport with the relief sought” are also insufficient. Wiley v. Nat’l Collegiate Athletic Ass’n, 612 F.2d 473, 476 (10th Cir. 1979). Instead, a defendant must undertake “changes that are permanent in nature” and “foreclose a reasonable chance of recurrence of the challenged conduct.” Tandy v.

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004). Such changes could include “withdrawal or alteration of administrative policies” through a formal process, Rio Grande Silvery Minnow, 601 F.3d at 1117 (quotations and brackets omitted), or a declaration under penalty of perjury, so that plaintiffs “face no credible threat of prosecution,” Brown, 822 F.3d at 1172.
Courts may accord “more solicitude” to government officials’ claims that their voluntary conduct moots a case. Rio Grande Silvery Minnow, 601 F.3d at 1116 n.15 (quotations omitted). This solicitude is “not ... invoked automatically.” 13C Charles Alan Wright & Arthur R. Miller, Fed. Practice & Procedure § 3533.7 (3d ed. Aug. 2019). But “government self-correction provides a secure foundation for mootness so long as it seems genuine.” Brown, 822 F.3d at 1167-68 (alterations and quotations omitted). And absent evidence the voluntary cessation is a sham, the mere possibility a successor official may shift course does not necessarily keep a case live. See id. at 1175 (explaining “hypothetical” that a future government official could *882 change a policy “does not breathe life into an otherwise moot case”).
C. Analysis
Significant developments leading up to the parties’ cross-motions for summary judgment rendered this case moot:
(1) The BOP delivered the 11 rejected publications.
(2) ADX issued its December 2017 Supplement, which prohibited rejecting a publication solely because it contained name-alone content, required prompt, specific notice to a rejected publication’s publisher, and retained the February 2016 Supplement’s requirements that additional ADX personnel review incoming publications and receive quarterly training on procedures.
(3) ADX Warden Matevousian declared, under penalty of perjury, that the December 2017 Supplement would apply going forward, that the 11 previously rejected publications “would not be rejected under [that supplement],” and that he “agree[d] with [former Warden Fox’s] assessment” that the initial rejections were improper. App. at
7

1366.
PLN also confirmed its claims were only as-applied, not facial.
The voluntary cessation exception to mootness does not apply because these developments satisfy the BOP’s “formidable burden” to make “clear the [BOP’s] allegedly wrongful behavior could not reasonably be expected to recur.” Brown, 822 F.3d at 1166 (quotations omitted).21
The following addresses mootness for each of PLN’s claims and the declaratory and injunctive relief it seeks. PLN has not asked for compensatory damages.
1. Content Censorship Claim
a. Mootness PLN asked for injunctive and declaratory relief on its content censorship claim. In its complaint, it specifically asked the district court to order the BOP to deliver the 11 rejected publications and all future PLN publications unless the BOP had a valid penological reason to reject them. It also asked the court to declare that the BOP’s content censorship violated the First Amendment.
Neither form of relief would redress an ongoing “actual injury.” Ind, 801 F.3d at 1213. The ADX’s administrative actions, Warden Matevousian’s declaration, and PLN’s confirmation that its as-applied claim covers only its 11 previously rejected publications are “intervening circumstance[s] depriv[ing] [PLN] of a personal stake.” Brown, 822 F.3d at 1165 (quotations omitted). Any equitable redress would lack “some effect in the real world.” Id. at 1165-66 (quotations omitted).
i. Past 11 PLN publications
PLN’s requests for injunctive and declaratory relief are moot. The BOP delivered the 11 rejected publications in March 2017. Because “the event to be enjoined has come and gone,” Citizen Ctr., 770 F.3d at 907, there is now no

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

reason for the court to order delivery. See also Jordan, 654 F.3d at 1024 (requiring an injury to be more than “past exposure to illegal conduct ... unaccompanied by any continuing, *883 present adverse effects” (quotations omitted)). The BOP’s concession that the publications were initially improperly rejected likewise means that a declaratory judgment would not “affect[ ] the behavior of the [BOP] toward [PLN],” Rio Grande Silvery Minnow, 601 F.3d at 1110, and would serve merely as “a retrospective opinion that [PLN] was wrongly harmed by the [BOP],” Jordan, 654 F.3d at 1025.
ii. Future PLN publications
PLN also asked the district court to order the BOP to deliver future PLN publications unless the BOP has a valid penological reason for rejection. But Warden Matevousian declared that the December 2017 Supplement will apply going forward. He said the 11 previously rejected publications “would not be rejected” and “agree[d] with [former Warden Fox’s] assessment” that the initial rejections were improper. App. at 1366. To the extent PLN seeks to prevent the BOP from rejecting publications that are substantially similar to the 11 previously rejected publications, the BOP’s December 2017 Supplement and the Warden’s declaration rendered the request moot. See Brown, 822 F.3d at 1165-66.
To the extent PLN seeks more broadly to prevent the BOP from rejecting its future publications that are not substantially similar to its prior 11 publications, this requested relief is vague22 and incompatible with PLN’s as-applied claim. When a plaintiff brings an as-applied claim, prospective relief must be limited to a future wrong that “disadvantages [the plaintiffs] in the same fundamental way.” See Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (emphasis added). PLN’s claim concerns its prior 11 publications. Its request for broad injunctive relief extends far beyond its as-applied claim and does not merit consideration absent a facial challenge to the BOP’s rejection policies. As the BOP points out, PLN’s broad request for relief is also not ripe because “future rejections will necessarily result from different facts and different reasons.” Aplee. Br. at 20.
In summary, on its content censorship claim, PLN lacks
8

an ongoing injury that is judicially redressable. The BOP delivered its 11 publications. The Warden has declared that PLN’s future publications substantially similar to the previously rejected publications will not be rejected. And because PLN asserts only an as-applied claim, we do not consider future PLN publications that are not substantially similar to the 11 at issue in this suit.
b. Voluntary cessation exception does not apply The voluntary cessation exception does not apply because the same developments that mooted PLN’s content censorship claim also satisfy the BOP’s formidable burden to show no reasonable expectation its allegedly wrongful behavior will recur. See Brown, 822 F.3d at 1166.
ADX has “[w]ithdraw[n] or alter[ed]” its challenged “administrative policies” to eliminate the practice of rejecting a publication solely because it contains name-alone *884 content. This action helps ensure the ADX’s past challenged censorship decisions will not recur. See Rio Grande Silvery Minnow, 601 F.3d at 1117. Further, Warden Matevousian’s declaration limits ADX’s ability to reject substantially similar future publications. See Brown, 822 F.3d at 1170-72 (declaration limiting a county attorney’s prosecutorial discretion to circumstances unlikely to apply to the plaintiffs was sufficient to moot a case). These revisions are not merely “informal promise[s] or assurance[s]” or “intention[s],” Rio Grande Silvery Minnow, 601 F.3d at 1118, or incomplete responses to the plaintiff’s sought relief, see Wiley, 612 F.2d at 476. Instead, they are “permanent” and “foreclose a reasonable chance of recurrence of the challenged conduct.” Tandy, 380 F.3d at 1291. PLN thus “face[s] no credible threat of” similar future rejections. Brown, 822 F.3d at 1168.
Although the BOP bears a formidable burden, it does not need to show that there is “no possibility” of recurrence—only that its challenged actions could not reasonably be expected to recur. Id. at 1175. Its actions here represent the “genuine” government self-correction that courts accord solicitude. Id. at 1168. These actions satisfy the BOP’s heavy burden to show the voluntary cessation exception to mootness does not apply.

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

c. PLN’s arguments PLN makes four arguments as to why the voluntary cessation exception should apply. We address and reject each in turn.
First, PLN argues the “BOP failed to meet its ‘formidable burden’ ” on voluntary cessation. Aplt. Br. at 36 (quoting Brown, 822 F.3d at 1166). It contends ADX may continue censoring its publications “for reasons substantially similar” to the prior reasons for rejection because “the warden’s ability to censor publications like the [r]ejected [publications] remains unchanged.” Id. at 28 (emphasis added). PLN further claims that ADX has been unresponsive because its post-suit changes address only name-alone content.
PLN’s assertion that the BOP’s policies remain unchanged and unresponsive is wrong, given the BOP’s administrative actions and the Warden’s declaration. To the extent the sole reason for rejecting a publication was its name-alone content, the December 2017 Supplement prohibited this practice and requires ADX personnel to receive quarterly training on ADX’s procedures. And to the extent PLN’s publications were rejected for other reasons, ADX Warden Matevousian’s declaration restricts rejection of PLN publications that are substantially similar to the 11 publications. These changes address PLN’s concerns and limit ADX’s discretion to reject future publications.
Second, PLN contends that future wardens will retain discretion to change ADX’s institutional supplement.23 But this court has explained that a successor government official’s ability to change a policy does not in itself “breathe life into an otherwise moot case.” Brown, 822 F.3d at 1175 (“To argue that a [prison warden] cannot bind future [prison wardens] to his [institution’s supplement] is unremarkable and unpersuasive.”).
Third, PLN asserts ADX’s improper content censorship can reasonably be expected to recur because it was contested in *885 a prior 2003 lawsuit between the parties. Aplt. Br. at 38. But PLN failed to present this argument to the district court and cannot raise it for the first time on appeal when it has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f the theory simply wasn’t raised before the district court, we usually hold it forfeited.”).
Fourth, PLN argues the BOP’s failure to remedy its challenged policies until after PLN brought its lawsuit warrants application of the voluntary cessation exception.
9

Aplt. Br. at 39 (quoting Brown, 822 F.3d at 1167). But in Brown, we explained that “[a] government official’s decision to adopt a policy in the context of litigation may actually make it more likely the policy will be followed” and that a defendant’s cessation of alleged wrongful conduct in “reaction to the [plaintiff’s] suit ... does not necessarily make it suspect.” Brown, 822 F.3d at 1171 (emphasis added).
2. Non-Redaction Censorship Claim
a. Mootness PLN’s as-applied non-redaction censorship claim also is moot due to the same developments that mooted its content censorship claim. Because the non-redaction censorship claim pertains only to the 11 previously rejected publications that the BOP delivered in their entirety, there is no ongoing injury or live controversy from the non-redaction of those publications. PLN also has not alleged a facial challenge to non-redaction, so its request for an injunction to prevent wholesale rejection goes beyond its as-applied claim. Its non-redaction censorship claim regarding future rejected publications is otherwise not ripe and must await an actual case or controversy.
b. Voluntary cessation exception does not apply PLN’s non-redaction censorship claim appears to present a stronger case for applying the voluntary cessation exception than the content censorship claim. Again, the BOP bears the formidable burden to show no reasonable expectation of recurrence. See id. at 1166. In the context of PLN’s as-applied claim, this means the BOP must show it will not wholly reject future PLN publications that are substantially similar to the 11 that it previously rejected.
None of the BOP’s administrative actions taken between the time of PLN’s complaint and when the parties filed cross-motions for summary judgment specifically addressed PLN’s non-redaction censorship claim. The BOP’s delivery of the previously rejected publications did not forecast any change in the BOP’s non-redaction

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

practice. Neither ADX’s February 2016 nor its December 2017 institutional supplements addressed this practice. And Warden Matevousian’s declaration is silent on this issue. Although these developments expressly addressed PLN’s content censorship claim, they do not resolve its non-redaction censorship claim.
ADX’s interim administrative actions nonetheless show the voluntary cessation exception does not apply because PLN confirmed that all of its claims were as-applied. Because the BOP met its burden to show it will not reject substantially similar future PLN publications, it follows that such future PLN publications will not be rejected in their entirety. In short, the same developments enable the BOP to meet its formidable burden on voluntary cessation for PLN’s content censorship claim and its non-redaction censorship claim.

references and quotes. Id.
The Warden’s declaration states the BOP will adhere to the December 2017 Supplement. Id. at 1366. Taken together, these facts show that PLN has no ongoing and redressable due process injury. The BOP’s actions mooting PLN’s due process claim also satisfy its formidable burden to show no reasonable expectation of recurrence exists and that the voluntary cessation exception does not apply. See Brown, 822 F.3d at 1166.
4. APA Claim Because PLN’s APA claim is based on the same allegations as its constitutional claims, the APA claim is similarly moot.

*886 3. Procedural Due Process Claim In its complaint, PLN asked the court to order the BOP to provide proper due process and to declare the BOP provided deficient due process for its rejections.

III. CONCLUSION

PLN’s as-applied procedural due process claim is moot because the publications were distributed and the December 2017 Supplement addressed PLN’s concerns regarding timely and adequate reasons and an opportunity

Factual developments during the litigation mooted PLN’s claims. The district court did not err in granting summary judgment for the BOP and dismissing this case for lack of jurisdiction. We affirm.

to contest. Under the December 2017 Supplement, the

Warden must give prompt notice, ordinarily within 10 business days, to inmates and publishers. App. at 1787.

All Citations

The Warden’s rejection notices must identify the reasons for rejection with greater specificity by referring to the

944 F.3d 868

specific, objectionable materials, including page

Footnotes

1

The BOP is the federal agency within the Department of Justice that “manage[s] and regulat[es] ... all [f]ederal penal

and correctional institutions,” including ADX. 18 U.S.C. § 4042. Because PLN sued the BOP, the BOP is the named

defendant entity for motion papers during the lawsuit. ADX was the specific BOP institution that rejected PLN’s 11

publications and acted in response to the litigation. References to the BOP or ADX in this opinion are references to

the defendant.

2

ADX revised its institutional supplement twice during the Rejection Period and a third time in December 2014 before

PLN’s October 2015 complaint. Because they did not materially differ, we refer to them collectively as the ADX

institutional supplement in effect during the Rejection Period.

10

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)

3

See, e.g., App. at 668 (January 2010 pages “contain information on an ADX inmate”); id. at 672 (October 2011 pages

“contain information on FCC Florence inmates and staff”); id. at 1065 (September 2013 pages “contain the names of

former Bureau of Prisons staff members that have been sentenced”); id. at 1067 (April 2014 notice explaining

objectionable page “contains information on an individual incarcerated at United States Penitentiary (ADX) and

details on his case”).

4

On appeal, the BOP does not specify ADX’s initial reasons for rejection, but contends those reasons are irrelevant to

the mootness analysis because the BOP has acknowledged the publications were improperly rejected. Aplee. Br. at

13.

5

One example was a publication’s discussion of an ADX inmate’s gang membership when ADX housed rival gang

members. See, e.g., App. at 2208-14 (February 2013 publication’s discussion of “active terrorists,” when ADX housed

rival gang members, was security risk); id. at 2306-10 (April 2013 publication’s discussion of “terrorist” and “terrorist

attack he was involved in,” when ADX housed rival gang members, was security risk); id. at 2312-13 (July 2013

publication’s identification of inmate’s cartel, when ADX housed rival cartels, was security risk).

6

See App. at 670 (June 2010 notice explaining objectionable page “contains information on a riot at USP Florence and

information on an ADX inmate”); id. at 731 (November 2011 notice explaining objectionable pages “contain

information on inmates who cooperated with BOP investigations”).

7

The record shows PLN’s publications averaged around 60 pages and each contained, at most, one to three pages of

objectionable material. See, e.g., App. at 674-729, 672 (October 2011 publication at 56 pages with three

objectionable pages); id. at 30-93, 989 (July 2013 publication at 64 pages with two objectionable pages).

8

We have “recognized that ... publishers have a right to procedural due process when publications are rejected.”

Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004).

9

The ADX Warden was Jack Fox from December 2015 to December 2017. ADX had acting wardens in the interim

period before Andre Matevousian became ADX Warden in April 2018.

10 See, e.g., App. at 2346-47 (Warden Fox’s deposition explaining PLN’s November 2011 publication was improperly rejected, despite objectionable pages mentioning inmates who cooperated with a BOP investigation, because the occurrence of such events was common knowledge); id. at 2350-51 (Warden Fox’s deposition explaining PLN’s February 2013 publication was improperly rejected, despite identification of a BOP inmate, because the objectionable pages’ content was not otherwise of concern).

11 The BOP stated at oral argument that rejections have declined since adoption of the December 2017 Supplement. Oral Arg. at 25:41-27:49. According to the BOP, it has not rejected any PLN publications since April 2014. Id.; see also App. at 425.

12 PLN has, throughout this litigation, said all of its claims were as-applied. See, e.g., App. 622 (describing “PLN’s as-applied challenge to BOP’s unwillingness to redact publications”); see also id. at 1467 (explaining PLN brings “challenges, on an as-applied basis, under the First Amendment and the APA”); id. at 1483 (“PLN brings as-applied claims under the ... Fifth Amendment[ ].”); id. at 1927 (explaining the “BOP again mischaracterizes PLN’s redaction argument as a facial challenge”).

13 Although the district court explained that “[v]oluntary cessation is an exception to the mootness doctrine,” it did not analyze this exception in its summary judgment order. App. at 2087.

11

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019)
14 This burden is “even greater” than the burden to prove mootness. WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1183 (10th Cir. 2012).
15 As we said in Brown, The Court has cautioned that the “time frame” description of mootness “is not comprehensive.” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv’s (TOC), Inc., 528 U.S. 167, 190 [120 S.Ct. 693, 145 L.Ed.2d 610] (2000). In particular, “there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.” Id. Standing, unlike mootness, is also not subject to an exception for disputes that are “capable of repetition yet evading review[ ].” Id. at 191 [120 S.Ct. 693]. These caveats, however, do not affect the general rule that “[t]he requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English[ v. Arizona, 520 U.S. 43, 68 n.22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)].
See Brown, 822 F.3d at 1164, n.14.
16 The mootness doctrine includes constitutional and prudential considerations. Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (stating courts “recognize two kinds of mootness: constitutional mootness and prudential mootness”). Constitutional mootness “is grounded in the requirement that any case or dispute that is presented to a federal court be definite, concrete, and amenable to specific relief.” Id. at 1024 (emphasis and quotations omitted). We address only constitutional mootness as necessary to our analysis.
17 See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (explaining the claim for “damages ... saves [the case] from the bar of mootness”); see also Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257-58 (10th Cir. 2004).
18 The mootness doctrine has two exceptions that make a case not moot, “notwithstanding the seeming extinguishment of any live case or controversy.” Brown, 822 F.3d at 1166. The second exception applies when a defendant’s wrongs are “capable of repetition, yet evad[e] [judicial] review.” Id. (quotations omitted). See, e.g., United States v. Sanchez-Gomez, ––– U.S. ––––, 138 S.Ct. 1532, 1541-42, 200 L.Ed.2d 792 (2018); Am. Charities for Reasonable Fundraising Regulation, Inc. v. O’Bannon, 909 F.3d 329, 333-34 (10th Cir. 2018). That exception is not relevant to this case.
19 See, e.g., Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 305, 132 S.Ct. 2277, 183 L.Ed.2d 281 (2012). In Knox, union class members sued the union, challenging the union’s increased fees. Id. After certiorari was granted, the union offered all class members a full refund and moved to dismiss the case. Id. at 307, 132 S.Ct. 2277. The Court determined the case was not moot because the union continued to defend the fee’s legality, making it unclear why the union “would necessarily refrain from collecting similar fees in the future.” Id. at 307, 132 S.Ct. 2277.
20 “The Supreme Court’s voluntary cessation cases suggest the word ‘absolutely’ adds little to this formulation. After reciting this standard, the Court sometimes omits ‘absolutely’ from its subsequent analysis, instead using the ‘reasonably be expected’ language as shorthand.” Brown, 822 F.3d at 1166 n.16; see, e.g., United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953) (“The case may ... be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.” (quotations omitted)). For the voluntary cessation exception to apply, “we must be convinced that the allegedly wrongful behavior could not reasonably be expected to recur ... not that there is no possibility.” Brown, 822 F.3d at 1175 (quotations omitted).
21 Although the district court did not expressly analyze the voluntary cessation exception in its summary judgment order, see App. at 2087, at the summary judgment stage both parties addressed it in their briefing. Id. at 1478-81 (PLN arguing “The Voluntary Cessation Exception Applies”); id. at 1302-04 (BOP arguing “[t]he voluntary-cessation
12

Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (2019) exception to mootness does not apply here”).
22 Under Federal Rule of Civil Procedure 65(d), an injunction granted by a court must “state the reasons why it was issued,” “state its terms specifically,” and “describe in reasonable detail ... the act or acts restrained or required.” (Fed. R. Civ. P. 65(d)). To the extent PLN seeks an “[i]njunction[ ] simply requiring a defendant to obey the law,” this is “too vague to satisfy Rule 65(d).” Vallario v. Vandehey, 554 F.3d 1259, 1268 (10th Cir. 2009) (quotations omitted).
23 See App. at 1479 (“Even if the current warden intends to follow the institution[al] supplement, there is no dispute that a future warden has unfettered discretion to change it.”); see Aplt. Br. at 4 (“ADX institution[al] supplements ... are not promulgated pursuant to agency rule-making. Rather, they are adopted—and can be changed at any time—by the decision of the ADX warden.”).
13

 
 Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 1 of 14
ADMAPP,ALLMTN,MJ CIV PP,REOPEN,TERMED
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:15−cv−02184−RM−STV

Prison Legal News v. Federal Bureau of Prisons Assigned to: Judge Raymond P. Moore Referred to: Magistrate Judge Scott T. Varholak Demand: $0 Case in other court: Tenth Circuit Court of Appeals, 18−01486 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 10/01/2015 Date Terminated: 10/25/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Prison Legal News a project of the Human Rights Defense Center

represented by Addar Weintraub Covington & Burling LLP−DC One CityCenter 850 Tenth Street NW Washington, DC 20001−4956 202−662−5042 Email: aweintraub@cov.com ATTORNEY TO BE NOTICED

Alyson Rose Sandler Covington & Burling, LLP−DC One CityCenter 850 Tenth Street NW Washington, DC 20001−4956 202−662−5158 Email: asandler@cov.com ATTORNEY TO BE NOTICED

David M. Shapiro Northwestern University School of Law Roderick and Solange MacArthur Justice Center 375 Chicago, IL 60611 312−503−0711 Email: david.shapiro@law.northwestern.edu TERMINATED: 09/10/2018 ATTORNEY TO BE NOTICED

Lance T. Weber Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561−360−2523 Fax: 866−735−7136 Email: lance@lanceweber.com TERMINATED: 12/29/2016

Masimba Maxwell Mutamba Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561−360−2523 Fax: 866−735−7136 Email: mmutamba@pbcgov.org ATTORNEY TO BE NOTICED

Matthew S. Shapanka Covington & Burling, LLP−DC One CityCenter

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 2 of 14
850 Tenth Street NW Washington, DC 20001−4956 202−662−5136 Fax: 202−778−5136 Email: mshapanka@cov.com ATTORNEY TO BE NOTICED
Peter Andrew Swanson Covington & Burling, LLP−DC One CityCenter 850 Tenth Street NW Washington, DC 20001−4956 202−662−5111 Fax: 202−778−5111 Email: pswanson@cov.com ATTORNEY TO BE NOTICED
Sabarish P. Neelakanta Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561−360−2523 Fax: 866−735−7136 Email: sneelakanta@hrdc−law.org ATTORNEY TO BE NOTICED
Stephen William Kiehl Covington & Burling LLP−DC One CityCenter 850 Tenth Street NW Washington, DC 20001−4956 202−662−5872 Fax: 202−778−5872 Email: skiehl@cov.com TERMINATED: 03/23/2018 ATTORNEY TO BE NOTICED
Terra White Fulham Covington & Burling, LLP−DC One CityCenter 850 Tenth Street NW Washington, DC 20001−4956 202−662−5433 Email: tfulham@cov.com ATTORNEY TO BE NOTICED
Steven David Zansberg Ballard Spahr LLP−Denver 1225 Seventeenth Street Suite 2300 Denver, CO 80202−5596 303−376−2409 Fax: 303−296−3956 Email: zansbergs@ballardspahr.com ATTORNEY TO BE NOTICED

V. Defendant Federal Bureau of Prisons, The

represented by Clay C. Cook U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 3 of 14
303−454−0100 Fax: 303−454−0400 Email: clay.cook@usdoj.gov ATTORNEY TO BE NOTICED
Kaitlin Brianne Turner Federal Correctional Complex−Florence Legal Services P.O. Box 8500 5880 State Highway 67 South Florence, CO 81226 719−784−5217 Fax: 719−784−9467 Email: k1turner@bop.gov ATTORNEY TO BE NOTICED
Marcy Elizabeth Cook U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0171 Fax: 303−454−0404 Email: marcy.cook@usdoj.gov ATTORNEY TO BE NOTICED
Susan Begesse Prose U.S. Attorney's Office−Denver 1801 California Street Suite 1600 Denver, CO 80202 303−454−0100 Fax: 303−454−0407 Email: susan.prose@usdoj.gov ATTORNEY TO BE NOTICED

Date Filed 10/01/2015
10/01/2015 10/01/2015 10/02/2015 10/05/2015 10/06/2015

# Docket Text
1 COMPLAINT against The Federal Bureau of Prisons (Filing fee $ 400,Receipt Number 1082−4631030)Attorney Steven David Zansberg added to party Prison Legal News(pty:pla), filed by Prison Legal News. (Attachments: # 1 Exhibit A (Prison Legal News, July 2013), # 2 Exhibit B (Prison Legal News, Feb. 2013), # 3 Exhibit C (9−11−13 Ltr from L. Weber), # 4 Exhibit D (9−30−13 Ltr from P. Laird), # 5 Exhibit E (10−9−13 Ltr from L. Weber), # 6 Exhibit F (10−24−13 Ltr from P. Laird), # 7 Summons, # 8 Civil Cover Sheet)(Zansberg, Steven) Modified to show correct party on 10/2/2015 (sphil, ). (Entered: 10/01/2015)
2 CORPORATE DISCLOSURE STATEMENT. (Zansberg, Steven) (Entered: 10/01/2015)
3 Case assigned to Judge Robert E. Blackburn Text Only Entry (dbera, ) (Entered: 10/02/2015)
4 SUMMONS issued by Clerk. Magistrate Judge Consent form issued pursuant to Local Rule (Attachments: # 1 Magistrate Judge Consent Form) (dbera, ) (Entered: 10/02/2015)
5 ORDER DIRECTING PREPARATION OF JOINT CASE MANAGEMENT PLAN. By Judge Robert E. Blackburn on 10/5/2015. (mlace, ) (Entered: 10/05/2015)
6 SUMMONS Returned Executed upon U.S. Attorney, on behalf of Federal Bureau of Prisons defendant(s) Prison Legal News served on 10/5/2015, answer due 12/4/2015. (Zansberg, Steven) (Entered: 10/06/2015)

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 4 of 14

10/07/2015 10/07/2015 10/07/2015 10/08/2015
10/08/2015 10/09/2015 10/15/2015 10/15/2015 10/15/2015 11/20/2015 11/30/2015 12/11/2015 04/22/2016 06/09/2016 06/09/2016 06/09/2016 06/13/2016
06/22/2016

7 NOTICE of Entry of Appearance by Matthew S. Shapanka on behalf of Prison Legal NewsAttorney Matthew S. Shapanka added to party Prison Legal News(pty:pla) (Shapanka, Matthew) (Entered: 10/07/2015)
8 NOTICE of Entry of Appearance by Addar Weintraub on behalf of Prison Legal NewsAttorney Addar Weintraub added to party Prison Legal News(pty:pla) (Weintraub, Addar) (Entered: 10/07/2015)
9 NOTICE of Entry of Appearance by Peter Andrew Swanson on behalf of Prison Legal NewsAttorney Peter Andrew Swanson added to party Prison Legal News(pty:pla) (Swanson, Peter) (Entered: 10/07/2015)
10 SUMMONS Returned Executed by Prison Legal News. Federal Bureau of Prisons, The served on 10/7/2015, answer due 10/28/2015., SUMMONS Returned Executed upon defendant(s) Federal Bureau of Prisons, The served on 10/7/2015, answer due 10/28/2015. (Shapanka, Matthew) (Entered: 10/08/2015)
11 SUMMONS Returned Executed by Prison Legal News., SUMMONS Returned Executed upon The Honorable Loretta E. Lynch (Shapanka, Matthew) (Entered: 10/08/2015)
12 NOTICE of Entry of Appearance by David M. Shapiro on behalf of Prison Legal NewsAttorney David M. Shapiro added to party Prison Legal News(pty:pla) (Shapiro, David) (Entered: 10/09/2015)
13 NOTICE of Entry of Appearance by Susan Begesse Prose on behalf of Federal Bureau of Prisons, TheAttorney Susan Begesse Prose added to party Federal Bureau of Prisons, The(pty:dft) (Prose, Susan) (Entered: 10/15/2015)
14 NOTICE of Entry of Appearance by Sabarish P. Neelakanta on behalf of Prison Legal NewsAttorney Sabarish P. Neelakanta added to party Prison Legal News(pty:pla) (Neelakanta, Sabarish) (Entered: 10/15/2015)
15 NOTICE of Entry of Appearance of Counsel by Lance T. Weber on behalf of Prison Legal NewsAttorney Lance T. Weber added to party Prison Legal News(pty:pla) (Weber, Lance) (Entered: 10/15/2015)
16 MOTION to Reassign Case to Civil Docket by Plaintiff Prison Legal News. (Zansberg, Steven) (Entered: 11/20/2015)
17 Joint MOTION for Extension of Time to File a Joint Case Management Plan and for Defendant to Respond to the Complaint by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 11/30/2015)
18 RESPONSE to 16 MOTION to Reassign Case to Civil Docket filed by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 12/11/2015)
19 NOTICE of Entry of Appearance and Substitution of Counsel by Stephen William Kiehl on behalf of Prison Legal NewsAttorney Stephen William Kiehl added to party Prison Legal News(pty:pla) (Kiehl, Stephen) (Entered: 04/22/2016)
20 ORDER Granting 16 Motion to Re−assign Case. Signed by Judge Robert E. Blackburn on 6/9/2016.(cmira) (Entered: 06/09/2016)
21 CASE RE−ASSIGNED. Pursuant to 20 Order on Motion to Reassign Case. This case is re−assigned to Magistrate Judge Nina Y. Wang. All future pleadings should be designated as 15−CV−2184−NYW. (Text Only Entry). (cmira) (Entered: 06/09/2016)
22 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (cmira) (Entered: 06/09/2016)
23 ORDER granting in part and denying in part 17 Motion for Extension of Time to File. Defendant shall file an Answer or otherwise respond to the Complaint on or before 6/27/2016. Consent Form due by 6/27/2016. By Magistrate Judge Nina Y. Wang on 6/13/16.(nywlc1) (Entered: 06/13/2016)
24 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint,, by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 06/22/2016)

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 5 of 14

06/22/2016 06/22/2016 06/24/2016
06/24/2016 06/24/2016 06/24/2016 07/27/2016 07/27/2016 07/28/2016 08/05/2016 08/05/2016 08/05/2016

25 CONSENT to Jurisdiction of Magistrate Judge by Plaintiff Prison Legal News All parties do not consent.. (Shapanka, Matthew) (Entered: 06/22/2016)
26 CASE REASSIGNED pursuant to 25 Consent to Jurisdiction of Magistrate Judge. All parties do not consent. This case is reassigned to Judge Raymond P. Moore. All future pleadings should be designated as 15−cv−02184−RM. (Text Only Entry) (nmarb, ) (Entered: 06/22/2016)
27 ORDER REFERRING CASE to Magistrate Judge Nina Y. Wang. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to the assigned United States Magistrate Judge to (1) convene a scheduling conference under Fed. R. Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2, (2) conduct such status conferences and issue such orders necessary for compliance with the scheduling order, including amendments or modifications of the scheduling order upon a showing of good cause, (3) hear and determine pretrial matters, including discovery and other non−dispositive motions, (4) conduct a pretrial conference and enter a pretrial order, and (5) conduct hearings, including evidentiary hearings, and submit proposed findings of fact and recommendations for rulings on dispositive motions. Court sponsored alternative dispute resolution is governed by D.C.COLO.LCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. Entered by Judge Raymond P. Moore on 6/24/2016. (Text Only Entry) (rmsec ) (Entered: 06/24/2016)
28 MEMORANDUM regarding 24 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 1 Complaint, filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Nina Y. Wang. Entered by Judge Raymond P. Moore on 6/24/2016. (Text Only Entry) (rmsec ) (Entered: 06/24/2016)
29 ORDER granting 24 Motion for Extension of Time. Defendant Federal Bureau of Prisons shall answer the Complaint or otherwise respond on or before 7/27/2016. By Magistrate Judge Nina Y. Wang on 6/24/16. Text Only Entry(nywlc1) (Entered: 06/24/2016)
30 ORDER SETTING RULE 16(b) SCHEDULING CONFERENCE for 8/17/2016 at 11:30 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 6/24/16. (nywlc1) (Entered: 06/24/2016)
31 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1, Attachment 1, # 3 Exhibit 1, Attachment 2, # 4 Exhibit 1, Attachment 3, # 5 Exhibit 1, Attachment 4, # 6 Exhibit 1, Attachment 5, # 7 Exhibit 1, Attachment 6, # 8 Exhibit 2)(Prose, Susan) (Entered: 07/27/2016)
32 MEMORANDUM regarding 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Nina Y. Wang. Entered by Judge Raymond P. Moore on 7/27/2016. (Text Only Entry) (rmsec ) (Entered: 07/27/2016)
33 MINUTE ORDER setting Oral Argument re: 31 MOTION to Dismiss filed by Federal Bureau of Prisons. The Oral Argument is set for 9/29/2016 at 11:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. By Magistrate Judge Nina Y. Wang on 7/28/16. Text Only Entry (nywlc1) (Entered: 07/28/2016)
34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 08/05/2016)
35 MEMORANDUM regarding 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Nina Y. Wang. Entered by Judge Raymond P. Moore on 8/5/2016. (Text Only Entry) (rmsec ) (Entered: 08/05/2016)
36 MINUTE ORDER: The Scheduling Conference set for 8/17/2016 is VACATED and RESET to 10/13/2016 at 11:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. Counsel shall submit their proposed scheduling order, including a copy of the proposed scheduling order in a Word format sent via email to

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 6 of 14

08/16/2016 08/17/2016 08/17/2016 08/19/2016
09/21/2016 09/21/2016 09/27/2016 10/03/2016
10/24/2016 10/24/2016

Wang_Chambers@cod.uscourts.gov, on or before seven days prior to the Scheduling Conference. By Magistrate Judge Nina Y. Wang on 8/5/2016. Text Only Entry (nywlc1) (Entered: 08/05/2016)
37 Joint MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 08/16/2016)
38 MEMORANDUM regarding 37 Joint MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 34 MOTION to Stay Discovery and to Vacate the Scheduling Confe filed by Prison Legal News. Motion referred to Magistrate Judge Nina Y. Wang. Entered by Judge Raymond P. Moore on 8/17/2016. (Text Only Entry) (rmsec ) (Entered: 08/17/2016)
39 MINUTE ORDER re: 37 Joint Motion for Extension of Time to File Response/Reply. A Telephonic Motion Hearing is set for 8/19/2016 at 09:30 AM before Magistrate Judge Nina Y. Wang. The parties are directed to initiate a call between themselves prior to contacting Magistrate Judge Wang's Chambers at 303−335−2600 at the designated time. By Magistrate Judge Nina Y. Wang on 08/17/2016. Text Only Entry (nywlc2) (Entered: 08/17/2016)
40 MINUTE ENTRY for proceedings held before Magistrate Judge Nina Y. Wang: Telephonic Motion Hearing held on 8/19/16. Order GRANTING 37 Motion for Extension of Time to File Response/Reply. Plaintiff shall respond to the Motion to Dismiss 31 on or before November 15, 2016. Plaintiff shall respond to the Motion to Stay Discovery 34 on or before November 25, 2016. Scheduling Conference set for 10/13/16 is VACATED. Motion Hearing set for 9/29/16 is VACATED and RESET to 12/15/2016 11:00 AM in Courtroom C204 before Magistrate Judge Nina Y. Wang. FTR: NYW C−204. (nmarb, ) Modified on 8/22/2016 show scheduling conference is vacated. (nmarb, ). (Entered: 08/22/2016)
41 Unopposed MOTION for Protective Order by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1, Proposed Stipulated Protective Order)(Prose, Susan) (Entered: 09/21/2016)
42 MEMORANDUM regarding 41 Unopposed MOTION for Protective Order filed by The Federal Bureau of Prisons. Motion referred to Magistrate Judge Nina Y. Wang. Entered by Judge Raymond P. Moore on 9/21/2016. Text Only Entry (cpear) (Entered: 09/21/2016)
43 STIPULATED PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 9/27/16. (bwilk, ) (Entered: 09/27/2016)
44 CASE REASSIGNED. This action is reassigned to Magistrate Judge Scott T. Varholak, upon his appointment. All future pleadings should reference Magistrate Judge Varholak at the beginning of the civil action number (such as 15−cv−00001−RM−STV). Unless otherwise ordered, the dates and times for all previously scheduled matters will be maintained and will now be handled by Magistrate Judge Varholak in Courtroom C−205. His chambers are located in Room C−254 of the Byron G. Rogers Courthouse. His telephone number is 303−335−2365. (Text only entry)Motions referred to Magistrate JudgeScott T Varholak. (tscha, ) (Entered: 10/03/2016)
45 Joint MOTION for Extension of Time to Respond to Pending Motions, Joint MOTION to Vacate the Oral Argument on the Motion to Dismiss by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 10/24/2016)
46 MEMORANDUM regarding 45 Joint MOTION for Extension of Time to Respond to Pending MotionsJoint MOTION to Vacate the Oral Argument on the Motion to Dismiss filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T Varholak. Entered by Judge Raymond P. Moore on 10/24/2016. (Text Only Entry) (rmsec ) (Entered: 10/24/2016)

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 7 of 14

10/24/2016
10/26/2016
12/02/2016 12/02/2016
12/02/2016
12/29/2016 12/29/2016 12/29/2016 01/30/2017 01/30/2017 02/01/2017 02/10/2017 02/13/2017

47 ORDER granting 45 Motion for Extension of Time. Plaintiff shall respond to 31 Motion to Dismiss on or before December 15, 2016. Plaintiff shall respond to 34 Motion to Stay Discovery on or before December 27, 2016. Motion Hearing set for 12/15/2016 is VACATED and RESET for 1/19/2017 09:30 AM in Courtroom C205 before Magistrate Judge Scott T Varholak, by Magistrate Judge Scott T Varholak on 10/24/2016. Text Only Entry(stvlc1, ) (Entered: 10/24/2016)
48 MINUTE ORDER. Due to a conflict on the Court's calendar, the Motion Hearing re: 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines set for 1/19/2017 9:30 AM is VACATED and RESET for 1/24/2017 09:00 AM in Courtroom C205 before Magistrate Judge Scott T Varholak, by Magistrate Judge Scott T Varholak on 10/26/2016. Text Only Entry (stvlc1, ) (Entered: 10/26/2016)
49 Joint MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 12/02/2016)
50 MEMORANDUM regarding 49 Joint MOTION for Extension of Time to File Response/Reply as to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction , 34 MOTION to Stay Discovery and to Vacate the Scheduling Confe filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 12/2/2016. (Text Only Entry) (rmsec ) (Entered: 12/02/2016)
51 ORDER granting in part and denying in part 49 Motion for Extension of Time to File Response/Reply. The deadline for Plaintiff to respond to 31 Motion to Dismiss is extended to 1/30/2017. The deadline for Plaintiff to respond to 34 Motion to Stay Discovery is also extended to 1/30/2017. The Motion Hearing set for 1/24/2017 09:00 AM is VACATED and RESET for 2/17/2017 10:30 AM in Courtroom C205 before Magistrate Judge Scott T Varholak. The Parties are cautioned that the Court is unlikely to grant any further extensions. By Magistrate Judge Scott T Varholak on 12/02/2016. Text Only Entry (stvlc1, ) (Entered: 12/02/2016)
52 MOTION to Withdraw as Attorney by Plaintiff Prison Legal News. (Weber, Lance) (Entered: 12/29/2016)
53 MEMORANDUM regarding 52 MOTION to Withdraw as Attorney filed by Prison Legal News. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 12/29/2016. (Text Only Entry) (rmsec ) (Entered: 12/29/2016)
54 ORDER granting 52 Motion to Withdraw as Attorney. Attorney Lance T. Weber terminated, by Magistrate Judge Scott T Varholak on 12/29/2016. Text Only Entry (stvlc1, ) (Entered: 12/29/2016)
55 BRIEF in Opposition to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Plaintiff Prison Legal News. (Attachments: # 1 Declaration of Matthew S. Shapanka, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Shapanka, Matthew) (Entered: 01/30/2017)
56 BRIEF in Opposition to 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines filed by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 01/30/2017)
57 NOTICE of Change of Address/Contact Information by Susan Begesse Prose (Prose, Susan) (Entered: 02/01/2017)
58 Exhibits in Support of 55 Brief in Opposition to Motion, corrected version of Doc. 55−2 (Ex. A) by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 02/10/2017)
59 REPLY to Response to 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Prose, Susan)

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 8 of 14

02/13/2017 02/17/2017
02/23/2017
02/23/2017 03/06/2017 03/06/2017 03/16/2017 03/16/2017 03/20/2017 03/20/2017 03/20/2017

(Entered: 02/13/2017)
60 REPLY to Response to 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines filed by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 02/13/2017)
61 MINUTE ENTRY for Motions Hearing held before Magistrate Judge Scott T. Varholak on 2/17/2017. This matter is before the Court regarding Defendants Motion to Dismiss [Doc. No. 31, filed 7/27/2016] and Defendants Motion to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines [Doc. No. 34, filed 8/5/2016]. The Court will be issuing its recommendation to Judge Moore on the Motion to Dismiss. Hearing concluded. FTR: STV − C205. (morti, ) (Entered: 02/17/2017)
62 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Federal Bureau of Prisons, The; denying 34 MOTION to Stay Discovery and to Vacate the Scheduling Conference and Related Deadlines filed by Federal Bureau of Prisons, The, by Magistrate Judge Scott T. Varholak on 2/23/2017. (slibi, ) (Entered: 02/23/2017)
63 Utility Setting/Resetting Deadlines/Hearings: Scheduling Conference set for 4/10/2017 09:00 AM in Courtroom C205 before Magistrate Judge Scott T. Varholak pursuant to 62 . Text Only Entry (slibi, ) (Entered: 02/24/2017)
64 Unopposed MOTION for Extension of Time to File Objections to and an Appeal of the Recommendation and Order Issued by the United States Magistrate Judge [Doc. 62] by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 03/06/2017)
65 ORDER: Defendant's motion for extension of time (ECF No. 64) is GRANTED. Defendant shall have until March 16, 2017 to file any objection/appeal. No further extension will be granted under ANY circumstances. SO ORDERED by Judge Raymond P. Moore on 3/6/2017. (Text Only Entry ) (rmsec ) (Entered: 03/06/2017)
66 OBJECTION to 62 Report and Recommendations filed by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Prose, Susan) (Entered: 03/16/2017)
67 OBJECTION/Appeal of Magistrate Judge Decision to District Court re 62 Report and Recommendations, [Appeal of Order Denying Motion to Stay Discovery] by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 03/16/2017)
68 MOTION for Protective Order Pursuant to Fed. R. Civ. P. 26(c) and to Vacate the Scheduling Conference by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1)(Prose, Susan) (Entered: 03/20/2017)
69 MEMORANDUM regarding 68 MOTION for Protective Order Pursuant to Fed. R. Civ. P. 26(c) and to Vacate the Scheduling Conference filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 3/20/2017. (Text Only Entry) (rmsec ) (Entered: 03/20/2017)
70 ORDER. This matter is before the Court on 68 Defendant's Motion for Entry of a Protective Order Pursuant to Fed. R. Civ. P. 26(c) and to Vacate the Scheduling Conference (the "Motion"). Defendant requests that the Court issue a protective order prohibiting Plaintiff from pursuing merits−related discovery "until the Court issues a final order on [Defendant's] motion to dismiss this case for lack of subject−matter jurisdiction." [#68 at 1] Similarly, Defendant requests that no scheduling conference be conducted until the Court issues its final order on the motion to dismiss. [Id.] Defendant's Motion thus seeks the same relief sought in its previously denied Motion to Stay Discovery and to Vacate the Scheduling Conference (the "Motion to Stay"). [#34] Accordingly, the Court DENIES the Motion for the same reasons articulated in the Court's Order denying Defendant's Motion to Stay. [#62] To the extent Defendant contends that Plaintiff's discovery requests are overly broad or unduly burdensome, Defendant may challenge those requests by complying with this Court's discovery dispute procedures set forth in this Court's Civil Practice Standards, available on the Court's website. SO ORDERED, by Magistrate Judge Scott T. Varholak on 3/20/2017.

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 9 of 14

03/28/2017
03/28/2017 03/29/2017 03/29/2017
03/29/2017 04/03/2017 04/04/2017 04/04/2017 04/11/2017 04/11/2017 05/25/2017 08/14/2017

Text Only Entry (stvlc1, ) (Entered: 03/20/2017)
71 VACATED and STRICKEN ORDER rejecting 62 Recommendation of the Magistrate Judge, denying as moot 67 Defendant's Appeal of Order Denying Motion to Stay, granting 31 Defendant's Motion to Dismiss for Failure to State a Claim, denying as moot 34 Defendant's Motion to Stay. Entered by Judge Raymond P. Moore on 3/28/2017. (cpear) Modified to show vacated and stricken pursuant to 81 order on 8/14/2017 (cthom, ). (Entered: 03/28/2017)
72 VACATED FINAL JUDGMENT pursuant to 71 Order. Entered by the Clerk of the Court on 3/28/2017. (cpear) Modified to vacate pursuant to Order 74 to on 3/30/2017 (cthom, ). (Entered: 03/28/2017)
73 MOTION to Vacate Judgment by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 03/29/2017)
74 ORDER granting 73 Motion to Vacate 73 MOTION to Vacate Judgment, 72 Judgment. This matter comes before the Court with the filing of the motion to vacate. Although plaintiff states that the motion to vacate is opposed, the Court agrees with the dates set forth in the motion, and thus, GRANTS the requested relief. The Court also will allow plaintiff until April 4, 2017 to file a response in order to address the Court's March 28, 2017 Order. Defendant may then have until April 11, 2017 to file any reply. No further briefing will be allowed. Nor will any extension to these deadlines be allowed. The Judgment 72 is VACATED and the case is re−opened until plaintiff's response is resolved. So Ordered by Judge Raymond P. Moore on 3/29/2017. Text Only Entry (rmlc2) (Entered: 03/29/2017)
Case reopened pursuant to Order 74 by Judge Raymond P. Moore on 3/29/2017. Text Only Entry (cthom, ) (Entered: 03/30/2017)
75 MINUTE ORDER. Pursuant to the parties' agreement, the Scheduling Conference set for 4/10/2017 09:00 AM is VACATED. A Status Conference is set for 6/5/2017 10:00 AM in Courtroom C205 before Magistrate Judge Scott T. Varholak, by Magistrate Judge Scott T. Varholak on 4/03/2017. Text Only Entry (stvlc1, ) (Entered: 04/03/2017)
76 RESPONSE to Objection to 62 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 31 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Federal Bureau of Prisons, The, 34 MOTION to Stay Discovery and t filed by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 04/04/2017)
77 RESPONSE to 67 Objection/Appeal of Magistrate Judge Decision Denying Motion to Stay Discovery filed by Plaintiff Prison Legal News. (Shapanka, Matthew) (Entered: 04/04/2017)
78 REPLY to 71 Order on Report and Recommendations,, Order on Appeal of Magistrate Judge Decision to District Court,, Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Stay, by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 04/11/2017)
79 REPLY to 71 Order on Report and Recommendations,, Order on Appeal of Magistrate Judge Decision to District Court,, Order on Motion to Dismiss for Failure to State a Claim,, Order on Motion to Stay, (Reply in Support of Discovery Order) by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 04/11/2017)
80 MINUTE ORDER. The Status Conference set for 6/5/2017 10:00 AM is VACATED to be reset, if necessary, after resolution of Plaintiff's response to the Court's March 28, 2017 Order, by Magistrate Judge Scott T. Varholak on 5/25/2017. Text Only Entry (stvlc1, ) (Entered: 05/25/2017)
81 ORDER DENIES 31 Motion to Dismiss and 34 Motion to Stay and ADOPTS 62 the R&R to the extent consistent with this Order and REJECTS defendant's 66 objections to the R&R. 71 Order is VACATED and the Clerk is instructed to STRIKE the same from the record. ORDERED by Judge Raymond P. Moore on 8/14/2017. (cthom, ) (Entered: 08/14/2017)

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 10 of 14

08/18/2017 08/18/2017
09/06/2017 09/06/2017 09/06/2017 09/06/2017 09/06/2017 09/08/2017
09/08/2017 09/22/2017 12/13/2017 01/23/2018 01/23/2018
02/02/2018 02/02/2018 02/02/2018

82 NOTICE of Entry of Appearance by Marcy Elizabeth Cook on behalf of Federal Bureau of Prisons, TheAttorney Marcy Elizabeth Cook added to party Federal Bureau of Prisons, The(pty:dft) (Cook, Marcy) (Entered: 08/18/2017)
83 MINUTE ORDER. Per the request of the parties, this matter is set for a Scheduling Conference on 9/08/2017 11:00 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. The parties shall submit their joint proposed scheduling order on or before 9/06/2017. SO ORDERED, by Magistrate Judge Scott T. Varholak on 8/18/2017. Text Only Entry (stvlc1, ) (Entered: 08/18/2017)
84 Proposed Scheduling Order (Filed Jointly by Plaintiff and Defendant) by Plaintiff Prison Legal News. (Kiehl, Stephen) (Entered: 09/06/2017)
85 Unopposed MOTION for Leave to File an Answer to the Complaint Out of Time by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1, # 2 Proposed Order (PDF Only))(Prose, Susan) (Entered: 09/06/2017)
86 MEMORANDUM regarding 85 Unopposed MOTION for Leave to File an Answer to the Complaint Out of Time filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 9/6/2017. (Text Only Entry) (rmsec ) (Entered: 09/06/2017)
87 ORDER granting 85 Defendant's Motion Requesting Permission to File an Answer to the Complaint Out of Time. The Clerk of Court is directed to file Defendant's Answer to Complaint [#85−1]. SO ORDERED, by Magistrate Judge Scott T. Varholak on 9/06/2017. Text Only Entry (stvlc1, ) (Entered: 09/06/2017)
88 ANSWER to 1 Complaint, by Federal Bureau of Prisons, The.(jgonz, ) (Entered: 09/07/2017)
89 MINUTE ENTRY for Scheduling Conference held before Magistrate Judge Scott T. Varholak on 9/8/2017. Discovery due by 4/9/2018. Dispositive Motions due by 5/14/2018. Final Pretrial Conference set for 7/9/2018 09:30 AM in Courtroom C203 before Magistrate Judge Scott T. Varholak. FTR: STV − C203. (morti, ) (Entered: 09/08/2017)
90 SCHEDULING ORDER: by Magistrate Judge Scott T. Varholak on 9/8/17. (morti, ) (Entered: 09/08/2017)
91 NOTICE of Entry of Appearance by Masimba Maxwell Mutamba on behalf of Prison Legal NewsAttorney Masimba Maxwell Mutamba added to party Prison Legal News(pty:pla) (Mutamba, Masimba) (Entered: 09/22/2017)
92 NOTICE of Entry of Appearance by Terra White Fulham on behalf of Prison Legal NewsAttorney Terra White Fulham added to party Prison Legal News(pty:pla) (Fulham, Terra) (Entered: 12/13/2017)
93 NOTICE of Entry of Appearance by Alyson Rose Sandler on behalf of Prison Legal NewsAttorney Alyson Rose Sandler added to party Prison Legal News(pty:pla) (Sandler, Alyson) (Entered: 01/23/2018)
94 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 93 Notice of Entry of Appearance filed by attorney Alyson Sandler. The document is incorrectly formatted, still having fillable form fields not converted to PDF. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 10.1 (Text Only Entry) (cthom, ) (Entered: 01/23/2018)
95 Joint MOTION to Amend/Correct/Modify 90 Scheduling Order by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 02/02/2018)
96 MEMORANDUM regarding 95 Joint MOTION to Amend/Correct/Modify 90 Scheduling Order filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 2/2/2018. (Text Only Entry) (rmsec ) (Entered: 02/02/2018)
97 ORDER granting 95 Joint Motion to Amend the Scheduling Order to Extend Four Remaining Discovery Deadlines. The fact discovery deadline is extended until

Case: 1:15-cv-02184-RM-STV As of: 03/22/2020 11:32 PM MDT 11 of 14

02/26/2018 03/09/2018 03/12/2018 03/23/2018 03/23/2018 03/23/2018 05/14/2018
05/14/2018 05/14/2018

3/09/2018. The deadline for the disclosure of affirmative experts is extended until 3/23/2018 and the deadline for the disclosure of rebuttal experts is extended until 4/06/2018. The discovery deadline is extended until 4/18/2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 2/02/2018. Text Only Entry (stvlc1, ) (Entered: 02/02/2018)
98 NOTICE of Entry of Appearance by Clay C. Cook on behalf of Federal Bureau of Prisons, TheAttorney Clay C. Cook added to party Federal Bureau of Prisons, The(pty:dft) (Cook, Clay) (Entered: 02/26/2018)
99 NOTICE of Entry of Appearance by Kaitlin Brianne Turner on behalf of Federal Bureau of Prisons, TheAttorney Kaitlin Brianne Turner added to party Federal Bureau of Prisons, The(pty:dft) (Turner, Kaitlin) (Entered: 03/09/2018)
100 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 99 Notice of Entry of Appearance filed by attorney Kaitlin Brianne Turner. DO NOT REFILE THE DOCUMENT. Action to take − counsel must submit a change of contact request through the Attorney Services Portal Account pursuant to D.C.COLO.LAttyR 5(c) and 3.5 of the Electronic Case Filing Procedures (Civil cases). (Text Only Entry) (athom, ) (Entered: 03/12/2018)
101 Unopposed MOTION to Withdraw as Attorney by Plaintiff Prison Legal News. (Kiehl, Stephen) (Entered: 03/23/2018)
102 MEMORANDUM regarding 101 Unopposed MOTION to Withdraw as Attorney filed by Prison Legal News. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 3/23/2018. (Text Only Entry) (rmsec ) (Entered: 03/23/2018)
103 ORDER granting 101 Motion for Withdrawal of Appearance. Attorney Stephen William Kiehl is relieved of any further representation of Plaintiff. The Clerk of Court is instructed to terminate Attorney Kiehl as counsel of record, and to remove his name from the electronic certificate of mailing. SO ORDERED, by Magistrate Judge Scott T. Varholak on 3/23/2018. Text Only Entry (stvlc1, ) (Entered: 03/23/2018)
104 MOTION for Partial Summary Judgment by Plaintiff Prison Legal News. (Attachments: # 1 Plaintiff's Statement of Undisputed Material Facts, # 2 Declaration of Alyson R. Sandler, # 3 PLN Index of Exhibits, # 4 Ex 1 − Scheduling Order, # 5 Ex 2 − January 2010 Rejection Notice, # 6 Ex 3 − June 2010 Rejection Notice, # 7 Ex 4 − October 2011 Rejection Notice, # 8 Ex 5 − October 2011 Issue of PLN, # 9 Ex 6 − November 2011 Rejection Notice, # 10 Ex 7 − November 2011 Issue of PLN, # 11 Ex 8 − Def.'s 2d Suppl. Resp. to Pl.'s Interrog., # 12 Ex 9 − Inmate Appeal of October and November 2011 Issues, # 13 Ex 11 − June 2012 Rejection Notice, # 14 Ex 12 − November 2012 Rejection Notice, # 15 Ex 13 − February 2013 Rejection Notice, # 16 Ex 14 − February 2013 Issue of PLN, # 17 Ex 15 − Def's Resp. to Pl.'s Requests for Admissions, # 18 Ex 16 − Rezaq v. Nalley, # 19 Ex 17 − April 2013 Rejection Notice, # 20 Ex 18 − April 2013 Issue of PLN, # 21 Ex 19 − Al−Owhali v. Holder, # 22 Ex 20 − July 2013 Rejection Notice, # 23 Ex 21 − July 2013 Issue of PLN, # 24 Ex 22 − Palma−Salazar v. Davis, # 25 Ex 23 − September 2013 Rejection Notice, # 26 Ex 24 − April 2014 Rejection Notice, # 27 Ex 25 − Listing of ADX Electronic Law Library Content, # 28 Ex 26 − Collins Dep. (Excerpt), # 29 Ex 27 − Letter from ADX to P. Swanson (2015−09−15), # 30 Ex 28 − Dunkelberger Dep. (Excerpt), # 31 Ex 29 − Berkebile Depo (Excerpt), # 32 Ex 30 − Def.'s 3d Supp. Resp. to Pl.'s Interrog., # 33 Ex 31 − Suppl. Decl. of Jack Fox, # 34 Ex 32A − September 2013 Issue of PLN (Part 1 of 2), # 35 Ex 32B − September 2013 Issue of PLN (Part 2 of 2), # 36 Ex 33 − Chapman Dep. I (Excerpt), # 37 Ex 34 − ADX Institution Supplement 5266C.11, # 38 Ex 35 − Def.'s 1st Supp. Resp. to Pl.'s Interrog., # 39 Ex 36 − Def.'s Resp. to Pl.'s 2d Interrog., # 40 Ex 37 − Def.'s Mot. to Dismiss, # 41 Ex 38 − Chapman Decl., # 42 Ex 39 − Complaint)(Fulham, Terra) (Entered: 05/14/2018)
105 RESTRICTED DOCUMENT − Level 1: EXHIBIT 10 to 104 Motion fr Partial Summary Judgment by Plaintiff Prison Legal News.. (Fulham, Terra) (Modified on 5/15/2018 edited to add the name of the document)(evana, ). (Entered: 05/14/2018)
106 MOTION for Summary Judgment by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit Statement of Undisputed Facts, # 2 Exhibit 1, Chapman Declaration, # 3 Exhibit 2, Wright Deposition Excerpt, # 4 Exhibit 3, Matevousian

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05/29/2018 05/30/2018 06/04/2018
06/04/2018 06/04/2018
06/18/2018 06/18/2018 06/18/2018 06/19/2018 06/27/2018 06/28/2018 06/28/2018

Declaration, # 5 Exhibit 4, Collins Declaration, # 6 Exhibit 5, Kelley Declaration)(Prose, Susan) (Entered: 05/14/2018)
107 Unopposed MOTION for Leave to Restrict by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1 − Redacted Docket Entry 105, # 2 Proposed Order (PDF Only))(Prose, Susan) (Entered: 05/29/2018)
108 ORDER granting 107 Motion for Leave to Restrict. SO ORDERED by Judge Raymond P. Moore on 5/30/2018. (Text Only Entry ) (rmsec ) (Entered: 05/30/2018)
109 RESPONSE to 106 MOTION for Summary Judgment filed by Plaintiff Prison Legal News. (Attachments: # 1 PLN's Resp. to Def.'s Statement of Facts, # 2 Declaration of Alyson R. Sandler, # 3 PLN Opp'n to MSJ Exhibit List, # 4 Ex. 6 − Email from S. Prose to S. Kiehl, Jan. 17, 2018, # 5 Ex. 8 − Payne Dep., # 6 Ex. 9 − Institution Supplement 5266.10C, # 7 Ex. 10 − Institution Supplement 5266.10D, # 8 Ex. 11 − Institution Supplement FLM 5266.11A, # 9 Ex. 12 − Institution Supplement 5266.11B, # 10 Ex. 13 − Davis Dep., # 11 Ex. 14 − Berkebile Dep., # 12 Ex. 15 − Kuta Dep., # 13 Ex. 16 − Stamper Dep., # 14 Ex. 17 − Def.'s 6th Supp. Priv. Log, # 15 Ex. 20 − Chapman Dep. I, # 16 Ex. 21 − January 2010 Issue (Excerpt), # 17 Ex. 22 − June 2012 Issue (Excerpt), # 18 Ex. 23 − April 2014 Issue (Excerpt), # 19 Ex. 24 − Letter from S. Prose to S. Kiehl, Dec. 7, 2017, # 20 Ex. 25 − Expert Report of Mark Collins (Excerpt), # 21 Ex. 26 − Institution Supplement 5266.11D, # 22 Ex. 27 − Def.'s 1st Supp. Resp. to Pl.'s 2d Interrog., # 23 Ex. 28 − Def's 2d Supp. Disclosures)(Fulham, Terra) (Entered: 06/04/2018)
110 (RESTRICTED DOCUMENT − Level 1) Exhibit 7 by Plaintiff Prison Legal News.. (Attachments: # 1 ECF No. 109, Ex. 18 − Fox Dep., # 2 ECF No. 109, Ex. 19 − Collins Dep.)(Fulham, Terra) Modified to add title on 6/5/2018 (cthom, ). (Entered: 06/04/2018)
111 RESPONSE to 104 MOTION for Partial Summary Judgment filed by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit BOP's Response, Additional Facts, & Supporting Evidence, # 2 Exhibit 1, Chapman Declaration, # 3 Exhibit 2, Kelley Declaration, # 4 Exhibit 3, Matevousian Declaration, # 5 Exhibit 4, Collins Declaration, # 6 Exhibit 5, Second Collins Declaration, # 7 Exhibit 6, Dunkelberger Deposition Excerpts)(Prose, Susan) (Entered: 06/04/2018)
112 Unopposed MOTION for Leave to Restrict by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only), # 2 Exhibit 1, Doc. 110 (redacted), # 3 Exhibit 2, Doc. 110−1 (redacted), # 4 Exhibit 3, Doc. 110−2 (redacted))(Prose, Susan) (Entered: 06/18/2018)
113 REPLY to Response to 104 MOTION for Partial Summary Judgment filed by Plaintiff Prison Legal News. (Attachments: # 1 Exhibit PLN's Reply to Def.'s Resp. and Add'l Facts and Supporting Evidence)(Shapanka, Matthew) (Entered: 06/18/2018)
114 REPLY to Response to 106 MOTION for Summary Judgment filed by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Exhibit 1. Reply − Defendant's Statement of Undisputed Material Facts, # 2 Exhibit 2, Chapman Deposition (Excerpts), # 3 Exhibit 3 − Rule 30(b)(6) Objections)(Prose, Susan) (Entered: 06/18/2018)
115 ORDER granting 112 Motion for Leave to Restrict. SO ORDERED by Judge Raymond P. Moore on 6/19/2018. (Text Only Entry ) (rmsec ) (Entered: 06/19/2018)
116 Unopposed MOTION for Extension of Time to Submit a Proposed Final Pretrial Order by Defendant Federal Bureau of Prisons, The. (Attachments: # 1 Proposed Order (PDF Only))(Prose, Susan) (Entered: 06/27/2018)
117 MEMORANDUM regarding 116 Unopposed MOTION for Extension of Time to Submit a Proposed Final Pretrial Order filed by Federal Bureau of Prisons, The. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 6/28/2018. (Text Only Entry) (rmsec ) (Entered: 06/28/2018)
118 ORDER granting 116 Motion for Extension of Time to File. The parties shall submit a proposed Final Pretrial Order on or before July 3, 2018. SO ORDERED, by Magistrate Judge Scott T. Varholak on 6/28/2018. Text Only Entry (stvlc2, ) (Entered: 06/28/2018)

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07/03/2018 07/09/2018 07/09/2018 07/09/2018
09/10/2018 09/10/2018 09/10/2018
10/25/2018 10/25/2018 11/08/2018 11/21/2018 11/23/2018 11/28/2018
12/21/2018 12/21/2018 12/21/2018

119 Proposed Pretrial Order by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 07/03/2018)
120 MINUTE ENTRY for Final Pretrial Conference held before Magistrate Judge Scott T. Varholak on 7/9/2018. FTR: STV − C203. (morti, ) (Entered: 07/09/2018)
121 FINAL PRETRIAL ORDER by Magistrate Judge Scott T. Varholak on 7/9/18. (morti, ) (Entered: 07/09/2018)
122 ORDER Setting Case for Trial. 3 day Bench Trial set for 3/5/2019 at 09:00 AM in Courtroom A 601 before Judge Raymond P. Moore. Trial Preparation Conference set for 2/1/2019 at 01:30 PM in Courtroom A 601 before Judge Raymond P. Moore. ORDERED by Judge Raymond P. Moore on 7/9/2018. (cthom, ) Modified to correct text on 7/9/2018 (cthom, ). (Entered: 07/09/2018)
123 Unopposed MOTION to Withdraw as Attorney by Plaintiff Prison Legal News. (Shapiro, David) (Entered: 09/10/2018)
124 MEMORANDUM regarding 123 Unopposed MOTION to Withdraw as Attorney filed by Prison Legal News. Motion referred to Magistrate Judge Scott T. Varholak. Entered by Judge Raymond P. Moore on 9/10/2018. (Text Only Entry) (rmsec ) (Entered: 09/10/2018)
125 ORDER granting 123 Motion for Withdrawal of Appearance. Attorney David M. Shapiro is relieved of any further representation of Plaintiff. The Clerk of Court is instructed to terminate Attorney Shapiro as counsel of record, and to remove his name from the electronic certificate of mailing. SO ORDERED, by Magistrate Judge Scott T. Varholak on 9/10/2018. Text Only Entry (stvlc1, ) (Entered: 09/10/2018)
126 ORDER denying as moot 104 Motion for Partial Summary Judgment and granting 106 Motion for Summary Judgment. Entered by Judge Raymond P. Moore on 10/25/2018. (cpear) (Entered: 10/25/2018)
127 FINAL JUDGMENT pursuant to 126 Order. Entered by the Clerk of the Court on 10/25/2018. (cpear) (Entered: 10/25/2018)
128 Proposed Bill of Costs by Defendant Federal Bureau of Prisons, The. (Prose, Susan) (Entered: 11/08/2018)
129 MOTION to Stay Proceedings on Defendant's Bill of Costs Pending Appeal by Plaintiff Prison Legal News. (Attachments: # 1 Proposed Order (PDF Only))(Sandler, Alyson) (Entered: 11/21/2018)
130 ORDER granting 129 Motion to Stay. Briefing and resolution of Defendant's Bill of Costs is stayed until the conclusion of any appeals in this matter. SO ORDERED by Judge Raymond P. Moore on 11/23/2018. (Text Only Entry ) (rmsec ) (Entered: 11/23/2018)
131 NOTICE of Bill of Costs Hearing Date by Clerk. The hearing date of Dec. 18, 2018 scheduled on Defendant's Bill of Costs − Docket No. 128 is hereby VACATED. The Clerk requests the parties to re−file the bill of costs or file an original bill of costs − depending on the outcome of the appeal − using the Proposed Bill of Costs docket event in the CM/ECF system. Entered by Clerk on Nov. 28. 2018. (ebutl) (Entered: 11/28/2018)
132 NOTICE OF APPEAL as to 126 Order on Motion for Partial Summary Judgment, Order on Motion for Summary Judgment, 127 Judgment by Plaintiff Prison Legal News (Filing fee $ 505, Receipt Number 1082−6451962) (Sandler, Alyson) (Entered: 12/21/2018)
133 LETTER Transmitting Notice of Appeal to all counsel advising of the transmittal of the 132 Notice of Appeal filed by Prison Legal News to the U.S. Court of Appeals. ( Retained Counsel, Fee paid,) (Attachments: # 1 Docket Sheet and Preliminary Record)(cthom, ) (Entered: 12/21/2018)
134 USCA Case Number 18−1486 for 132 Notice of Appeal filed by Prison Legal News. (cthom, ) (Entered: 12/24/2018)

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01/04/2019 01/04/2019 01/20/2019
01/23/2019 12/13/2019 12/13/2019 02/04/2020

135 TRANSCRIPT ORDER FORM re 132 Notice of Appeal by Plaintiff Prison Legal News (Shapanka, Matthew) (Entered: 01/04/2019)
136 REPORTER TRANSCRIPT ORDER FORM filed by Patterson Transcription Company re: 132 Notice of Appeal. Transcript due by 1/18/2019. (nrich) (Entered: 01/04/2019)
137 TRANSCRIPT of Motions Hearing held on February 17, 2017 before Magistrate Judge Varholak. Pages: 1−65. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Patterson Transcription Company, ) (Entered: 01/20/2019)
138 LETTER TO USCA and all counsel certifying the record is complete as to 132 Notice of Appeal filed by Prison Legal News. All transcripts ordered are now on file as of 1/20/2019. ( Appeal No. 18−1486) Text Only Entry (cthom, ) (Entered: 01/23/2019)
139 USCA Opinion as to 132 Notice of Appeal filed by Prison Legal News : Affirmed. (USCA Case No. 18−1486) (This document is not the Mandate) (rvill, ) (Entered: 12/13/2019)
140 USCA Judgment as to 132 Notice of Appeal filed by Prison Legal News : The judgment of that court is affirmed. (USCA Case No. 18−1486) (This document is not the Mandate) (rvill, ) (Entered: 12/13/2019)
141 MANDATE of USCA as to 132 Notice of Appeal filed by Prison Legal News, 139 USCA Opinion, and 140 USCA Judgment. (USCA Case No. 18−1486) (rvill, ) (Entered: 02/04/2020)