CLOSED,MEDIATION
U.S. District Court DISTRICT OF KANSAS (Kansas City) CIVIL DOCKET FOR CASE #: 2:16−cv−02268−JAR−KGG

Ogden et al v. Figgins Assigned to: District Judge Julie A. Robinson Referred to: Magistrate Judge Kenneth G. Gale Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/28/2016 Date Terminated: 11/03/2017 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Russell K Ogden Class representative

represented by Joshua A. Glickman Social Justice Law Collective, Pl 6709 W. 119th Street, #198 Overland Park, KS 66209 913−213−3064 Email: josh@sjlawcollective.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen D. Bonney Bonney Arbitration & Mediation PO Box 32102 Kansas City, MO 64171 816−550−4374 Email: sdbonney@outlook.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Beatrice Hammer Class representative

represented by Joshua A. Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen D. Bonney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Smith Class representative

represented by Joshua A. Glickman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen D. Bonney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Sheriff Pete Figgins Official capacity only

represented by Andrew D. Holder Fisher, Patterson, Sayler & Smith, LLP − Topeka 3550 SW Fifth Street Topeka, KS 66603 785−232−7761

Email: aholder@fisherpatterson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terelle A. Mock Fisher, Patterson, Sayler & Smith, LLP − Topeka 3550 SW Fifth Street Topeka, KS 66606 785−232−7761 Fax: 785−232−6604 Email: tmock@fisherpatterson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/28/2016
04/28/2016 04/28/2016
04/28/2016 04/28/2016 04/28/2016
04/28/2016 04/29/2016
05/24/2016
06/03/2016
06/17/2016 06/17/2016 06/29/2016

# Docket Text
1 COMPLAINT with trial location of Kansas City ( Filing fee $400, Internet Payment Receipt Number AKSDC−3759385.), filed by Russell K Ogden, John Smith, Beatrice Hammer.(Bonney, Stephen) (Entered: 04/28/2016)
2 CIVIL COVER SHEET by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith. (Bonney, Stephen) (Entered: 04/28/2016)
3 DESIGNATION OF PLACE OF TRIAL filed by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith − trial to be held in Kansas City. (Bonney, Stephen) (Entered: 04/28/2016)
4 MOTION to Certify Class by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith (Bonney, Stephen) (Entered: 04/28/2016)
5 MEMORANDUM IN SUPPORT of 4 MOTION to Certify Class by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith(Bonney, Stephen) (Entered: 04/28/2016)
NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge Julie A. Robinson and Magistrate Judge Kenneth G. Gale for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ydm) (Entered: 04/28/2016)
SUMMONS ISSUED as to Pete Figgins. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (ydm) (Entered: 04/28/2016)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 4 MOTION to Certify Class . The motion will be resolved by the District Judge.(df) (Entered: 04/29/2016)
6 SUMMONS RETURNED EXECUTED −− Personal Service by Russell K Ogden, John Smith, Beatrice Hammer upon All Defendants (Bonney, Stephen) (Entered: 05/24/2016)
7 CLERKS ORDER EXTENDING TIME until June 17, 2016 for Defendant Pete Figgins to answer or otherwise plead Signed by deputy clerk on June 3, 2016. (ydm) (Entered: 06/03/2016)
8 ENTRY OF APPEARANCE by Andrew D. Holder on behalf of All Defendants. (Holder, Andrew) (Entered: 06/17/2016)
9 ANSWER to Complaint by Pete Figgins.(Holder, Andrew) (Entered: 06/17/2016)
10 INITIAL ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 8/11/2016 at 10:00 AM by telephone before Magistrate Judge Kenneth G. Gale. Counsel will call 888−363−4749 and enter access code 5407703 to participate on the conference. Report of Parties Planning Meeting deadline 8/5/2016. Rule 26 Initial Disclosures Deadline set for 8/5/2016. See attached Order. Signed by Magistrate Judge Kenneth G. Gale on 6/29/16. (aw) (Entered: 06/29/2016)

08/04/2016 08/05/2016 08/05/2016 08/11/2016 08/15/2016
08/19/2016 08/19/2016 10/07/2016 10/15/2016
10/18/2016 10/19/2016
11/08/2016 11/08/2016 11/21/2016 01/18/2017 06/16/2017

11 MEMORANDUM AND ORDER granting 4 Motion to Certify Class. Signed by District Judge Julie A. Robinson on 8/4/16. (hw) (Entered: 08/04/2016)
12 NOTICE OF SERVICE by Pete Figgins of INITIAL RULE 26(a)(1) DISCLOSURES OF DEFENDANT (Holder, Andrew) (Entered: 08/05/2016)
13 NOTICE OF SERVICE by Beatrice Hammer, Russell K Ogden, John Smith of PLAINTIFFS' RULE 26(a)(1) INITIAL DISCLOSURES (Glickman, Joshua) (Entered: 08/05/2016)
MINUTE ENTRY for proceedings held before Magistrate Judge Kenneth G. Gale: SCHEDULING CONFERENCE held on 8/11/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 08/11/2016)
14 SCHEDULING ORDER: Estimated trial time one to two days. Discovery deadline 12/30/2016. Dispositive motion deadline 2/3/2017. Mediation deadline 11/18/2016. Proposed Pretrial Order due by 1/12/2017. Jury Trial set for 10/10/2017 at 09:00 AM in KC Courtroom 427 (JAR) before District Judge Julie A. Robinson. Final Pretrial Conference set for 1/19/2017 at 10:00 AM before Magistrate Judge Kenneth G. Gale. See attached Order for additional deadlines. Signed by Magistrate Judge Kenneth G. Gale on 8/15/16. (aw) (Entered: 08/17/2016)
15 CERTIFICATE OF SERVICE of Intial Disclosure Documents by Beatrice Hammer, Russell K Ogden, John Smith. (Bonney, Stephen) (Entered: 08/19/2016)
16 NOTICE OF SERVICE by Pete Figgins of INITIAL RULE 26(a)(1) DISCLOSURE DOCUMENTS OF DEFENDANTS (Holder, Andrew) (Entered: 08/19/2016)
17 CERTIFICATE OF SERVICE of Plaintiffs' First Set of Interrogatories and First Request for Production of Documents by Beatrice Hammer, Russell K Ogden, John Smith. (Glickman, Joshua) (Entered: 10/07/2016)
18 MINUTE ORDER. The Magistrate Judge has reviewed the parties' confidential settlement reports. Because it appears the parties are engaged in productive informal discussions, formal mediation is not ordered at this time. Signed by Magistrate Judge Kenneth G. Gale on October 15, 2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(Gale, Kenneth) (Entered: 10/15/2016)
19 Unopposed MOTION for extension of time to serve Fed. R. Civ. P. 26(a)(2) expert disclosures by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith (referred to Magistrate Judge Kenneth G. Gale) (Glickman, Joshua) (Entered: 10/18/2016)
20 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING 19 Unopposed MOTION for extension of time to serve Fed. R. Civ. P. 26(a)(2) expert disclosures : Motion Hearing set for 11/8/2016 at 03:00 PM by telephone before Magistrate Judge Kenneth G. Gale. Counsel who plan to participate will call 888−363−4749 and enter access code 5407703. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 10/19/2016)
21 NOTICE OF SETTLEMENT (Joint) by Beatrice Hammer, Russell K Ogden, John Smith (Glickman, Joshua) (Entered: 11/08/2016)
22 NOTICE OF CANCELLED HEARING: Telephone Conference set 11/8/2016 at 3:00 p.m. cancelled. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 11/08/2016)
23 ORDER finding as moot 19 Motion for Extension of Time. Signed by Magistrate Judge Kenneth G. Gale on 11/21/16. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (df) (Entered: 11/21/2016)
24 NOTICE OF CANCELLED HEARING: Final Pretrial Conference set 1/19/2017 cancelled. The Court has been informed this case is settled. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 01/18/2017)
25 Joint MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT and incorporated MEMORANDUM OF LAW IN SUPPORT by Plaintiffs Beatrice Hammer, Russell K Ogden, John Smith (Attachments: # 1 Exhibit A − Settlement Agreement and Consent Decree, # 2 Exhibit B − Notice of Proposed

06/19/2017 07/19/2017 07/19/2017 09/28/2017 10/25/2017 11/03/2017
11/03/2017

Settlement)(Glickman, Joshua) (Entered: 06/16/2017)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 25 Joint MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT and incorporated MEMORANDUM OF LAW IN SUPPORT . The motion will be resolved by the District Judge.(aw) (Entered: 06/19/2017)
26 ORDER granting 25 Joint Motion for Preliminary Approval of Class Action Settlement. Signed by Chief District Judge Julie A Robinson on 7/19/17. (hw) (Entered: 07/19/2017)
Statement of Objection and/or Notice of Intention to Appear due by 9/25/2017. Final Fairness Hearing set for 10/25/2017 at 09:00 AM in KC Courtroom 427 (JAR)before Chief District Judge Julie A Robinson.)(bw) (Entered: 07/19/2017)
27 NOTICE OF CANCELLED HEARING: jury trial set for 10/10/2017 cancelled. (This is a TEXT ENTRY ONLY. Final Fairness hearing is set for 10/25/2017 at 9:00 a.m. There is no.pdf document associated with this entry.) (bw) (Entered: 09/28/2017)
28 MINUTE ENTRY for proceedings held before Chief District Judge Julie A Robinson: FAIRNESS HEARING held on 10/25/2017. (Court Reporter Kelli Stewart.) (bw) (Entered: 10/25/2017)
29 MEMORANDUM AND ORDER: IT IS THEREFORE ORDERED that the parties' Settlement Agreement and Consent Decree (Doc. 25−1) is hereby approved under Federal Rule of Civil Procedure 23(e)(2) and is entered as part of the judgment in this case.IT IS FURTHER ORDERED that according to Federal Rule of Civil Procedure 41(a)(2), plaintiffs' claims are dismissed with prejudice. Signed by Chief District Judge Julie A Robinson on 11/2/2017. (cv) (Entered: 11/03/2017)
***Civil Case Terminated per Memorandum and Order 29 .(cv) (Entered: 11/03/2017)

 
 Case 2:16-cv-02268-JAR-KGG Document 1 Filed 04/28/16 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RUSSELL K. OGDEN, BEATRICE HAMMER, )

and JOHN SMITH, on behalf of themselves and )

a class of persons similarly situated;

)

)

Plaintiffs,

)

)

v.

)

)

PETE FIGGINS, in his official capacity as

)

Sheriff for Wilson County, Kansas,

)

)

Defendant.

)

Case No. _______________ CLASS ACTION

CLASS ACTION COMPLAINT

Plaintiffs Russell K. Ogden, Beatrice Hammer, and John Smith, all on behalf of

themselves and all others similarly situated, sue defendant Pete Figgins (“Figgins”) in his official

capacity as Sheriff for Wilson County, Kansas, and allege as follows:

INTRODUCTION

1. Plaintiffs challenge defendant’s policy and practice of forbidding inmates of the

Wilson County Correctional Facility (the “Jail”) and their parents, children, spouses, relatives,

friends and other correspondents from sending letters enclosed in envelopes to and from the Jail

(“Postcard-Only Mail Policy”). Instead, Jail inmates and their outside correspondents must write

all of their correspondences on pre-paid U.S. Postal postcards. The only exception to this

Postcard-Only Mail Policy applies to “Legal Mail,” which is not defined, but includes mail sent

from an attorney’s office.

2. This policy impermissibly restricts the ability of inmates and their outside

correspondents from exercising their rights to communicate with correspondents in writing, in

violation of the First and Fourteenth Amendments to the U.S. Constitution.

Case 2:16-cv-02268-JAR-KGG Document 1 Filed 04/28/16 Page 2 of 15
3. Moreover, the Postcard-Only Mail Policy does not afford either the sender or intended recipient of any rejected communication any notice of, reasons for, or opportunity to challenge this censorship, in violation of the Jail inmates and their outside correspondents’ right to due process.
4. Plaintiffs ask this Court to enjoin the Postcard-Only Mail Policy and declare that it violates their constitutional rights.
JURISDICTION AND VENUE 5. Plaintiffs bring this action pursuant to 42 U.S.C. §1983 for violations of civil rights under the First and Fourteenth Amendments to the United States Constitution. 6. This court has subject-matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3) (civil rights). 7. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 1391(b).
PARTIES 8. Plaintiff Russell K. Ogden (“Ogden”) is a private citizen who resides in Wilson County in Coyville, KS. Plaintiff Ogden is the father of Tab Ogden, who is currently incarcerated at the Jail, and is the legal guardian of Tab Ogden’s two children, ages 5 and 7. As set forth more fully below, plaintiff Ogden has been, and continues to be, deprived of constitutional rights as a result of the defendant’s Postcard-Only Mail Policy. 9. Plaintiff Beatrice Hammer (“Hammer”) is a private citizen who resides in Labette County in Altamont, KS. Plaintiff Hammer is the grandmother of Andrew Clines, who is currently incarcerated at the Jail. As set forth more fully below, plaintiff Hammer has been, and continues to be, deprived of constitutional rights as a result of the defendant’s Postcard-Only Mail Policy.
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10. Plaintiff John Smith (“Smith”) is a private citizen who resides in Labette County in Parsons, KS. Plaintiff Smith is the cousin of Andrew Clines, who is currently incarcerated at the Jail. As set forth more fully below, plaintiff Smith has been, and continues to be, deprived of constitutional rights as a result of the defendant’s Postcard-Only Mail Policy.
11. Defendant Pete Figgins is now, and at all material times has been, the Sheriff of Wilson County, Kansas. As Wilson County Sheriff, defendant is charged with the care and custody of inmates at the Jail. Defendant Figgins exercises overall responsibility for the policies and practices of the Jail, including the Postcard-Only Mail Policy. Plaintiffs sue defendant Figgins in his official capacity for injunctive and declaratory relief and attorneys’ fees and costs.
12. Defendant Figgins at all times relevant hereto was acting and continues to act under color of law.
13. The jail administrator, supervisors, correction officers, deputies, and other staff persons who are responsible for implementing and enforcing the Jail’s Postcard-Only Mail Policy are agents and employees of defendant Figgins.
GENERAL ALLEGATIONS 14. The Jail is located in Fredonia, KS. It houses convicted prisoners, pretrial detainees, and civilly committed individuals. 15. Defendant Figgins has instituted the Postcard-Only Mail Policy, which requires all outgoing and incoming mail, except Legal Mail, sent by or to a Jail inmate to be written on a pre-paid, U.S. Postal postcard. 16. Despite this restriction, the Postcard-Only Mail Policy does not require that the Jail notify either the sender or intended recipient of any non-compliant correspondence that their communication has been rejected, or the reason for that rejection, and fails to provide any
3

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opportunity for either the sender or intended recipient of any rejected communication to administratively appeal and/or challenge the Jail’s decision.
17. Upon information and belief, when a communication is rejected by the Jail pursuant to the Postcard-Only Mail Policy, neither the sender nor intended recipient of that correspondence is notified that their communication has been rejected, or the reason for that rejection, nor are they provided any opportunity to administratively appeal and/or challenge the Jail’s decision.
18. Plaintiff Ogden has been, and continues to be, deprived of his constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Plaintiff Ogden would like to send letters immediately to his son, Tab, but cannot do so because of defendant’s Postcard-Only Mail Policy.
(b) Plaintiff Ogden would like to correspond with Tab regarding such private and sensitive subjects as family and personal relationships, health care and physical conditions, and financial issues. In particular, plaintiff Ogden would like to be able to correspond with Tab about his two children, ages 5 and 7, so that Tab can maintain and further develop a relationship with his children. Tab’s children would similarly like to be able to correspond with their father, but do not yet have the writing skills necessary to restrict their writing to the limited space on a postcard.
(c) As a result of defendant’s Postcard-Only Mail Policy, plaintiff Ogden and his grandchildren cannot send these personal letters. Though he would like to discuss these sensitive topics with Tab, he cannot because of the restrictions imposed by the Postcard-Only Mail Policy on privacy and space. Additionally, he must express all of his thoughts and messages in an abbreviated and incomplete form as there is insufficient room on the postcard to
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fully develop and communicate his thoughts and ideas. As a result, plaintiff Ogden cannot fully discuss his thoughts, feelings and ideas.
(d) Although plaintiff Ogden does occasionally visit Tab and speaks with him on the telephone, visitation and phone calls are not an adequate substitute for written communications about these private and sensitive matters, as more fully set forth below.
(e) Mail correspondence is the best way for plaintiff Ogden to stay in contact with Tab.
19. Plaintiff Hammer has been, and continues to be, deprived of her constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Plaintiff Hammer would like to send letters immediately to her grandson, Andrew Clines, but cannot do so because of defendant’s Postcard-Only Mail Policy.
(b) Plaintiff Hammer would like to correspond with Andrew regarding such private and sensitive subjects as family and personal relationships, health care and physical conditions, and financial issues.
(c) Andrew was incarcerated in the Jail on more than one occasion before defendant implemented the Postcard-Only Mail Policy. During those previous periods of incarceration at the Jail, plaintiff Hammer freely sent letters consisting of one or more sheets of paper enclosed in an envelope to Andrew, and those letters were transmitted to Andrew without incident.
(d) As a result of defendant’s Postcard-Only Mail Policy, plaintiff Hammer cannot send such personal letters. Though she would like to discuss these sensitive topics with Andrew, she cannot do so because of the restrictions imposed by the Postcard-Only Mail Policy on privacy and space. Additionally, she must express all of her thoughts and messages in an
5

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abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate her thoughts and ideas. As a result, plaintiff Hammer cannot fully discuss her thoughts, feelings and ideas.
(e) As a 78 year old woman, whose husband is suffering from cancer, it is difficult if not impossible for plaintiff Hammer to travel to visit Andrew.
(f) As a result of the aforementioned, mail correspondence is the best way for plaintiff Hammer to stay in contact with Andrew.
20. Plaintiff Smith has been, and continues to be, deprived of his constitutional rights as a result of the Postcard-Only Mail Policy:
(a) Plaintiff Smith would like to send letters immediately to his cousin, Andrew, but cannot do so because of defendant’s Postcard-Only Mail Policy.
(b) Plaintiff Smith would like to correspond with Andrew regarding such private and sensitive subjects as family and personal relationships, health care and physical conditions, and financial issues. In particular, plaintiff Smith would like to be able to correspond with Andrew about Andrew’s eventual release and reentry into the community, where plaintiff Smith hopes to be able to assist Andrew in finding suitable housing and employment upon release.
(c) As a result of defendant’s Postcard-Only Mail Policy, plaintiff Smith cannot send such personal letters. Though he would like to discuss these sensitive topics with Andrew, he cannot because of the restrictions imposed by the Postcard-Only Mail Policy on privacy and space. As a result, Plaintiff Smith does not correspond with his cousin, Andrew.
(d) Telephone calls are very expensive, and Plaintiff Smith can only afford to make them on rare occasion.
6

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(e) Because of Plaintiff Smith’s work obligations, which require him to travel, he cannot visit Colby.
(f) Because of these limitations on visitation and telephone calls, mail correspondence is the best way for plaintiff Smith to stay in contact with Andrew.
21. Before defendant Figgins adopted the Postcard-Only Mail Policy, outside correspondents freely sent letters consisting of one or more sheets of paper enclosed in an envelope to inmate correspondents inside the Jail, and – after Jail staff inspected those letters for contraband and read or scanned them for inappropriate content – they were transmitted to Jail inmates without incident.
22. Likewise, before defendant Figgins implemented the Postcard-Only Mail Policy, Jail inmates freely sent non-privileged letters consisting of one or more sheets of paper enclosed in an envelope to correspondents outside the Jail. Jail staff read or scanned such non-privileged outgoing mail for content that violated the Jail’s mail policy and then placed the envelope in the custody of the U.S. Postal Service for proper delivery to the inmates’ intended addressees, who received such non-privileged envelope mail in due course.
23. Now, defendant Figgins and those acting under his authority will not transmit to an inmate or an outside correspondent mail that does not conform to the Postcard-Only Mail Policy. Had that policy been in place at the Birmingham City Jail on April 16, 1963, for example, Martin Luther King Jr. could not have sent to fellow clergymen his now famous twenty-three pages long “Letter from the Birmingham City Jail.” Nor could the Apostle Paul have sent his Epistles to his fellow Christians while imprisoned by the Romans.
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24. The Postcard-Only Mail Policy is set forth in the Wilson County Correctional Facility Standard Operating Policies and Procedures - Revised - Operation/Mail, and the Wilson County Correctional Facility Inmate Rules
25. Jail inmates and their friends and family have few alternatives by which to communicate privately and freely with family, friends, and other loved ones:
(a) Telephone calls are an inadequate substitute for letters. (1) Pursuant to Jail policy, friends and family members cannot telephone inmates at the Jail. (2) While Jail inmates are permitted to call out to friends and family members who have been placed on an approved list, the cost of such calls are prohibitively expensive. (3) Even when a Jail inmate can afford to make such phone calls, the manner in which these calls are conducted prevents the discussion of sensitive and/or personal topics, as fellow Jail inmates may easily overhear these telephone calls.
(b) Jail visits are an inadequate substitute for letters. (1) The Jail does not permit contact visitation. Instead, Jail inmates are separated from their visitors by glass and must talk to visitors over a telephone system. (2) Family and friends may only visit Jail inmates during specific, limited time blocks on Saturday and Sunday, which prevents many friends and family with a conflict during this time period from visiting at all.
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(3) Friends and family who do not live near the Jail or who live in another state cannot easily visit Jail inmates. (4) Because jail visits may be inappropriate for young children, correspondence through regular envelope mail allows inmates to maintain and foster healthy familial relationships with such young children. (c) Therefore, for all these reasons, mail correspondence for many Jail inmates and their family and friends is the most feasible, practical, and private way to communicate and maintain a relationship. 26. The Postcard-Only Mail Policy impermissibly curtails the ability of Jail inmates and their outside correspondents to send and receive private and/or sensitive expressions and communications. The Postcard-Only Mail Policy also prevents Jail inmates and their outside correspondents from fully expressing their thoughts. Instead, Jail inmates and their outside correspondents must express these messages in an abbreviated and incomplete form as there is insufficient room on the postcard to fully develop and communicate the inmates’ thoughts and ideas. The Postcard-Only Mail Policy prevents inmates and their friends and family members from sending and receiving these fully developed and complete messages. 27. In addition, the postcards required by defendant’s Postcard-Only Mail Policy expose the content of the inmates’ and their correspondents’ communications to anyone who handles, processes, or views the postcards in route, both within the Jail and outside the facility. Prior to the Postcard-Only Mail Policy, Jail inmates and outside correspondents would regularly write letters to family and friends that contained sensitive information, including medical, spiritual, intimate, and financial information. Because these letters were enclosed in envelopes and were only subject to review by a Sheriff’s deputy, the writers felt confident that this sensitive
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information would not be exposed for others to see, including postal carriers. The Postcard-Only Mail Policy has forced Jail inmates and outside correspondents to either abandon including sensitive information from their non-privileged correspondence or risk divulging confidential, sensitive information to unknown third-parties who can easily intercept these messages on postcards. Including sensitive financial information on a postcard increases the chance that these writers may become a victim of identity theft or fraud.
28. The defendant’s Postcard-Only Mail Policy inhibits, infringes, limits, chills, suppresses, and interferes with the plaintiffs’ constitutionally protected communications.
29. The plaintiffs have suffered and will continue to suffer an injury as a result of the defendant’s Postcard-Only Mail Policy. The Postcard-Only Mail Policy infringes on plaintiffs’ constitutional right of free speech to communicate in a complete and meaningful way and to express themselves fully. Moreover, defendant’s failure to provide notice to those whose letters have been confiscated or an opportunity for the sender and intended recipient of those letters to appeal and/or protest that decision, violates plaintiffs’ Due Process rights.
30. Defendant Figgins has acted under color of state law to deprive plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of these actions and the existence, operation, and threat of enforcement of the defendant’s Postcard-Only Mail Policy.
CLASS ACTION ALLEGATIONS 31. Plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. 32. Plaintiffs seek to represent a class defined as “all current and future outside correspondents who wish to write full-length letters to, and/or receive full-length letters from,
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inmates in the Wilson County Jail and who are subject to or affected by the Postcard-Only Mail Policy.”
33. The proposed class is so numerous and so fluid that joinder of all members is impracticable and uneconomical. With hundreds of persons admitted to the Jail annually and an average Jail inmate population of roughly 35-40 persons, the approximate size of the class consists of hundreds of inmates and their correspondents.
34. There are questions of law and fact common to the members of the plaintiff class. These common questions of law and fact include, but are not limited to, the following:
a) the scope and nature of defendant’s Postcard-Only Mail Policy; b) the scope, criteria, and process for invoking the alleged “Legal Mail”
exception to defendant’s Postcard-Only Mail Policy; c) the scope and nature of defendant’s interests and/or justifications in instituting
and maintaining the Postcard-Only Mail Policy; d) whether the defendant’s Postcard-Only Mail Policy provides either the sender
or intended recipient of any rejected communication with any notice of, reasons for, or opportunities to challenge, the Jail’s censorship of protected speech; and e) whether the application of defendant’s Postcard-Only Mail Policy violates the rights of the members of the Class under the First and Fourteenth Amendments to the U.S. Constitution; and 35. The claims of the class representatives are typical of the claims of the members of the class. The class representatives have suffered injuries similar in kind and degree to injuries suffered by the members of the class. The defendant has acted the same with respect to the class
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representatives and all class members. The class representatives make the same claims and seek the same relief for themselves and for all class members.
36. The named class representatives will fairly and adequately protect the interests of each class. The named class representatives have no interest that is now or may be potentially antagonistic to the interests of any of the classes. Plaintiffs understand the duties and responsibilities of serving as class representatives. Plaintiffs have no conflicts, and have retained experienced class counsel to represent the class.
37. Defendants have acted or refused to act on grounds generally applicable to the members of the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
COUNT ONE SUPPRESSION OF PROTECTED SPEECH 38. Plaintiffs reallege and incorporate by reference all of the preceding paragraphs in this complaint. 39. The defendant has deprived, and continues to deprive, plaintiffs of their rights under the First Amendment to the U.S. Constitution, which are secured through the Fourteenth Amendment. The defendant’s Postcard-Only Mail Policy is the cause in fact of the constitutional violations. 40. Absent intervention by this Court, the named plaintiffs and the members of the plaintiff class will suffer injury as a result of the defendant’s unconstitutional practices. 41. Unless restrained by this Court, defendant will continue to enforce the PostcardOnly Mail Policy. Named plaintiffs and the members of the plaintiff class have been and will continue to be irreparably harmed by defendant’s denial of plaintiffs’ fundamental constitutional right to free speech.
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42. Named plaintiffs and the members of the plaintiff class have no adequate remedy at law for the denial of their fundamental constitutional rights.
43. In depriving plaintiffs and the members of the plaintiff class of these rights, defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed pursuant to 42 U.S.C. § 1983.
COUNT TWO VIOLATION OF DUE PROCESS 44. Plaintiffs reallege and incorporate by reference all of the preceding paragraphs in this complaint. 45. Plaintiffs have a free speech right to communicate with their loved ones who are inmates in the Jail. This right is guaranteed by the First and Fourteenth Amendments to the U.S. Constitution. 46. When plaintiffs attempt to send letters in envelopes to inmates in the Jail, and when inmates attempt to send letters in envelopes to outside correspondents including plaintiffs, Jail staff intercepts and rejects those letters pursuant to the defendant’s Postcard-Only Mail Policy, and those letters are not delivered to their intended recipients. 47. Despite this consequence of the Postcard-Only Mail Policy, defendant does not notify either the senders or the intended recipients of any rejected correspondence that their communications have been rejected, or of the reason for that rejection, and fails to provide any opportunity for either the senders or intended recipients of any rejected communications to administratively appeal and/or challenge the Jail’s decision. 48. The defendant’s failure and refusal to provide Plaintiffs with constitutionally required notice and an opportunity to be heard and/or protest the rejection of their protected
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speech violates Plaintiffs’ rights, and the rights of all others similarly situated, to the due process of law protected by the Fourteenth Amendment to the U.S. Constitution.
49. Absent intervention by this Court, the named plaintiffs and the members of the plaintiff class will suffer injury as a result of the defendant’s unconstitutional practices.
50. Unless restrained by this Court, defendant will continue to enforce the PostcardOnly Mail Policy. Named plaintiffs and the members of the plaintiff class have been and will continue to be irreparably harmed by defendant’s denial of plaintiffs’ fundamental constitutional right to due process.
51. Named plaintiffs and the members of the plaintiff class have no adequate remedy at law for the denial of their fundamental constitutional rights.
52. In depriving plaintiffs and the members of the plaintiff class of these rights, defendant acted under color of state law. This deprivation under color of state law is actionable under and may be redressed pursuant to 42 U.S.C. § 1983.
RELIEF REQUESTED WHEREFORE, plaintiffs respectfully request the following relief: A. An order certifying this matter as a class action pursuant to Rule 23, Fed. R. Civ. Pro.; B. An order declaring defendant’s Postcard-Only Mail Policy to be in violation of the First and Fourteenth Amendments to the U.S. Constitution; C. An order permanently enjoining defendant and his officers, agents, affiliates, subsidiaries, servants, employees, successors, and all other persons or entities in active concert or privity or participation with him, from continuing the unlawful Postcard-Only Mail Policy or any other policy that limits mail to postcards, thus restoring the status quo that previously existed;
14

Case 2:16-cv-02268-JAR-KGG Document 1 Filed 04/28/16 Page 15 of 15
D. An order requiring defendant to provide notice to all current Jail inmates and Jail
officials implementing the defendant’s policies that the Postcard-Only Mail Policy is terminated;
E. An order permanently enjoining defendant and his officers, agents, affiliates,
subsidiaries, servants, employees, successors, and all other persons or entities in active concert or
privity or participation with him, from taking retaliatory action against plaintiffs for bringing this
lawsuit;
F. An award of reasonable attorneys’ fees and costs incurred in connection with this
action from defendants pursuant to 42 U.S.C. § 1988;
G. An order retaining the court’s jurisdiction of this matter to enforce the terms of the
Court’s orders; and
H. Such further and different relief as is just and proper or that is necessary to make
plaintiffs whole.
Respectfully Submitted,
/s/ Stephen Douglas Bonney Stephen Douglas Bonney, KS Bar #12322 ACLU Foundation of Kansas 6701 W. 64th Street, Ste. 210 Overland Park, KS 66202 Tel. (913) 490-4102 Fax: (913) 490-4119 E-mail: dbonney@aclukansas.org
and
Joshua A. Glickman, Esq. Kansas Bar No. 25889 Social Justice Law Collective, PL 6709 W. 119th Street, #198 Overland Park, KS 66209 Tel. (913) 213-3064 Fax: (866) 893-0416 Email: josh@sjlawcollective.com Counsel for Plaintiffs
15

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RUSSELL K. OGDEN, BEATRICE HAMMER and JOHN SMITH, on behalf of themselves and a class of persons similarly situated,

Plaintiffs,

Case No. 16-2268-JAR

v.

PETE FIGGINS, in his official capacity as Sheriff for Wilson County, Kansas,

Defendant.

MEMORANDUM AND ORDER Plaintiffs Russell Ogden, Beatrice Hammer, and John Smith, individually and on behalf of others similarly situated, assert claims against Defendant Pete Figgins, in his official capacity as Sheriff of Wilson County, Kansas, alleging violations of the First and Fourteenth Amendments to the United States Constitution. This matter comes before the Court on Plaintiffs’ Motion for Class Certification (Doc. 4). Defendant has not responded to the motion and the time to do so has passed. The motion can therefore be granted for failure to file a response. Additionally, the Court grants the motion for the reasons stated below. I. Background The following facts are based on the allegations taken from Plaintiffs’ Complaint.1 Plaintiffs are all family members of inmates at the Wilson County Correctional Facility (the “Jail”). Plaintiff Russell Ogden is the father of Tab Ogden, an inmate at the Jail, and is the legal guardian of Tab Ogden’s two children. Plaintiff Beatrice Hammer is the grandmother of Andrew

1See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999) (citation omitted) (explaining that for purposes of motion to certify class under Fed. R. Civ. P. Rule 23, the Court may accept plaintiffs’ substantive allegations as true).

1

Clines, who is currently incarcerated at the Jail. Plaintiff John Smith is the cousin of Andrew Clines. Plaintiffs challenge a policy (“Postcard-Only Policy” or the “Policy”) instituted by Defendant Pete Figgins, Sheriff of Wilson County, Kansas, whereby all outgoing and incoming mail sent by or to a Jail inmate must be written on a pre-paid United States Postal Service postcard. The one exception to the Postcard-Only Policy applies to “Legal Mail,” which is not defined, but includes mail sent from an attorney’s office.
Under the Postcard-Only Policy, neither the sender nor the intended recipient of a piece of correspondence sent on something other than a postcard is notified that their communication has been rejected or the reason for the rejection. Senders and recipients cannot administratively appeal or challenge the decision to reject a piece of correspondence. Plaintiffs allege that under the Policy, they cannot correspond with inmates about sensitive subjects such as family and personal relationships, health concerns, financial issues, and the inmates’ future re-entry into the community because of privacy concerns and the abbreviated space available on a postcard.2 Jail visits are an inadequate substitute for letters because of restrictions on visitation times, proximity of family and friends to the jail, health issues that prevent travel to the Jail, and because such visits may be inappropriate for young children. Telephone calls are also an inadequate substitute because friends and family members cannot telephone inmates at the Jail pursuant to Jail policy, the cost to make such calls is prohibitively expensive, and fellow inmates may easily overhear the discussion of sensitive topics. Thus, Plaintiffs allege that the Policy violates their free speech and Due Process rights under the First and Fourteenth Amendments to the United States Constitution.
2See Doc. 1 at 4–6.
2

II. Failure to Respond Defendant failed to file a response to the motion for class certification and the time to do
so has expired.3 Under D. Kan. Rule 7.4, Absent a showing of excusable neglect, a party or attorney who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum. If a responsive brief or memorandum is not filed within the Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice.4
As a result of Defendant’s failure to respond, the Court may grant Plaintiffs’ motion for class certification as uncontested. III. Class Certification Under Rule 23
A. General Standards Governing Class Certification Fed. R. Civ. P. 23 governs class actions in federal court. The court possesses significant latitude in deciding whether or not to certify a class.5 And whether a case should be allowed to proceed as a class action is an intensely fact-based question that is fraught with practical considerations.6 In deciding whether the proposed class meets the requirements of Rule 23, the Court may accept Plaintiff’s substantive allegations as true, but it “need not blindly rely on conclusory allegations which parrot Rule 23 requirements [and] may . . . consider the legal and
3See D. Kan. R. 6.1(d)(1) (requiring a response to a non-dispositive motion to be filed within fourteen days). Plaintiffs filed their Class Action Complaint on April 28, 2016. Doc. 1. Thus, Defendant’s deadline to respond was May 12, 2016.
4D. Kan. R. 7.4(b). 5Vallario v. Vandehey, 554 F.3d 1259, 1264 (10th Cir. 2009) (citing Shook v. Bd. of Cnty. Comm’rs, 543 F.3d 597, 603 (10th Cir. 2008)). 6See Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).
3

factual issues presented by plaintiff’s complaints.”7 The Court must conduct a “rigorous analysis” to ensure that Plaintiff’s putative class meets the requirements of Rule 23.8
As the party seeking class certification, Plaintiffs must show “under a strict burden of proof” that their putative class meets the requirements of Rule 23.9 Plaintiffs must first satisfy all four prerequisites of Rule 23(a) by showing that (1) the class is so numerous that joinder of all members is impracticable, (2) questions of law or fact are common to the class, (3) Plaintiffs’ claims or defenses are typical of the claims or defenses of the class and (4) Plaintiffs will fairly and adequately protect the interests of the class.10 These requirements are more commonly known as numerosity, commonality, typicality, and adequacy of representation. If the requirements of Rule 23(a) are met, Plaintiffs must then show that their case fits within one of the categories described in Rule 23(b).11
B. Class Definition “Prior to determining whether a plaintiff has met the prerequisites of Rule 23(a), the Court must first address the proposed class definition.”12 Defining the class is critical because it identifies the persons (1) entitled to relief, (2) bound by a final judgment, and (3) entitled under Rule 23(c)(2) to notice.13 The Court must ensure that the definition is “precise, objective, and
7See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999) (citation omitted). 8D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1194 (10th Cir. 2010) (quotations and citations omitted). 9Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006) (citing Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988)); see also Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. C.t 1184, 1194 (2013). 10Fed. R. Civ. P. 23(a).
11See Fed. R. Civ. P. 23(b).
12Jackson v. Ash, No. 13-CV-2504-EFM, 2014 WL 1230225, at *2 (D. Kan. Mar. 25, 2014) (citing Eatinger v. BP Am. Prod. Co., 271 F.R.D. 253, 257–58 (D.Kan.2010)).
13Sibley v. Sprint Nextel Corp., 254 F.R.D. 662, 670 (D. Kan. 2008) (quoting Manual for Complex Litigation § 21.222, at 270 (4th ed. 2005)).
4

presently actionable.”14 Here, Plaintiffs seek to certify a class consisting of “all current and future outside correspondents who wish to write letters to, and/or receive letters from, inmates in the Wilson County Correctional Facility and who are subject to or affected by the Postcard-Only Mail Policy.”15 Defendant does not object to Plaintiffs’ proposed class definition, and the Court finds that the definition sufficiently identifies the persons entitled to relief, bound by a final judgment, and entitled to notice under Rule 23(c)(2).
C. Prerequisites Under Rule 23(a) 1. Numerosity
In order to meet the numerosity requirement under Rule 23(a)(1), the plaintiff must “establish that the class is so numerous as to make joinder impracticable.”16 A plaintiff need not allege the exact number and identity of the class members, but must only establish that “joinder of all class members is impracticable” through “some evidence or reasonable estimate [of] the number of class members who may be involved.”17 There is no set formula for determining whether a plaintiff meets this requirement, but courts have found that classes as small as seventeen to twenty members can satisfy the numerosity requirement.18 Further, a “good faith estimate of at least 50 members” is a sufficient size to maintain a class action.19 A number of other factors are relevant in determining whether joinder is impracticable, including the
14Id. 15Doc. 5 at 1. To be clear, Plaintiffs seek to certify a class consisting of outside correspondents of inmates held at the Jail. The proposed class does not include the inmates themselves. 16Trevizo, 455 F.3d at 1162 (citation omitted). 17Heartland Comms. v. Sprint Corp., 161 F.R.D. 111, 115 (D. Kan. 1995) (citing Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978)). 18Jackson, 2014 WL 1230225 at *3; Sprint Nextel Corp. v. Middle Man, Inc., No. 12-2159-JTM, 2013 WL 3819928 (D. Kan. July 24, 2013) (citing Rex v. Owens ex rel. State of Okl., 585 F.2d 432, 436 (10th Cir. 1978)). 19Rex, 585 F.2d at 436; In re Aluminum Phosphide Antitrust Litig., 160 F.R.D. 609, 613 (D. Kan. 1995).
5

“geographic diversity of class members” and the “relative ease or difficulty in identifying members of the class for joinder.”20
Here, Plaintiffs maintain that the class size consists of at least 40 people, because the average daily population of the jail is currently 35 to 40 inmates, and the postcard-only policy applies to all inmates as well as their families, friends, and outside correspondents.21 Plaintiffs also contend that the fluid nature of the proposed class makes identifying class members difficult, if not impossible. The Court agrees. Here, the class is larger than other classes that courts have recognized, and the ever-changing nature of jail populations makes identification of all of the class members nearly impossible. Therefore, because Plaintiffs have identified a reasonably large proposed class that may include other future members, the Court finds that Plaintiffs have met the numerosity requirement.
2. Commonality Rule 23(a)(2) requires Plaintiffs to show that there are questions of law or fact common to the class, or, in other words, that members of the putative class “possess the same interest and suffer the same injury.”22 Plaintiffs’ claims must depend upon a common contention “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”23 Therefore, it is not the raising of common “questions” that matters, but rather “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of
20Tommey v. Computer Scis. Corp., No. 11-CV-2214-EFM-GLR, 2013 WL 1304186, at *3 (D. Kan. Mar. 27, 2013).
21See Jackson, 2014 WL 1230225 at *3 (finding that class size was at least 327, because the jail’s inmate capacity was 327 and the postcard-only policy applied to all inmates, as well as family, friends, and other outside correspondents).
22Fed R. Civ. P. 23(a)(2); Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348–49 (2011). 23Id.
6

litigation.”24 “[C]ommonality requires only a single issue common to the class. Thus, [t]he
commonality requirement is met if plaintiffs’ grievances share a common question of law or of
fact.”25
Here, Plaintiffs identify the common questions of law as:
a. The scope and nature of defendant’s Postcard-Only Mail Policy; b. the scope, criteria, and process for invoking the alleged “privileged mail”
exception to defendant’s Postcard-Only Mail Policy; c. the scope and nature of defendant’s interests and/or justifications in instituting
and maintaining the Postcard-Only Mail Policy; d. whether the defendant’s Postcard-Only Mail Policy provides either the sender
or intended recipient of any rejected communication with any notice of, reasons for, or opportunities to challenge, the Jail’s censorship of protected speech; and e. whether the application of defendant’s Postcard-Only Mail Policy violates the rights of the members of the Proposed Plaintiff Class under the First and Fourteenth Amendments to the U.S. Constitution.26
These allegations adequately support a finding of commonality. While the Postcard-Only Policy
may affect each correspondent differently, it is clear that the constitutionality, scope, and notice
provided under the policy are issues common to all members of the class.27 Therefore, the Court
finds that Plaintiffs have satisfied the Rule 23(a)(2) commonality requirement.
3. Typicality
Rule 23(a)(3) requires that the representative plaintiffs possess the same interests and
suffer the same injuries as the proposed class members.28 Thus, the class representative must “be
a member of the proposed class, have interests coextensive with and not antagonistic to the
24Id. (emphasis in original). 25J.B. ex rel. Hartz v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999). 26Doc. 5 at 5–6. 27See Jackson, 2014 WL 1230225 at *4 (finding, in an analogous case challenging postcard-only policy in a county jail, that constitutionality of policy was an issue common to all inmates, thereby supporting a finding of commonality). 28Fed R. Civ. P. 23(a)(3); see also DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010).
7

interests of the class, and have suffered the same injury as the class members.”29 The class representative’s claims may differ factually so long as they arise from the same events or course of conduct and are based on the same legal or remedial theory.30 Here, the Plaintiffs and all members of the proposed class are currently subject to, or will be subject to, Defendant’s Postcard-Only Policy. Further, the named Plaintiffs’ claims—that the Policy violates the free expression and Due Process guarantees of the First and Fourteenth Amendments to the United States Constitution—are identical to the claims of all current and future members of the class.31 This meets the requirements for typicality.
4. Adequacy The final Rule 23(a) requirement is that the named plaintiffs and their counsel will adequately represent the class.32 Rule 23(a)(4) involves two inquiries: (1) do the named Plaintiffs and their counsel have any conflicts of interest with other class members; and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?33 To defeat class certification, a conflict must be fundamental and go to the specific issues in controversy.34 A fundamental conflict exists where some members of the class claim harm
29Commander Props. Corp. v. Beech Aircraft Corp., 164 F.R.D. 529, 535 (D. Kan. 1995) (citations omitted).
30Id. (citation omitted). 31See Jackson, 2014 WL 1230225 at *4–5 (finding in analogous case that named plaintiffs’ “claims, legal theories, interests, and suffered injury” were typical of all current and future class members). 32Fed. R. Civ. P. 23(a)(4). 33E Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977); Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir. 2002); Pinkston v. Wheatland Enters., Inc., No. 11-CV-2498-JAR, 2013 WL 1302053 (D. Kan. Mar. 27, 2013). 34Eatinger v. BP Am. Prod. Co., 271 F.R.D. 253, 260 (D. Kan. 2010).
8

through a representative plaintiff’s conduct that resulted in a benefit to other class members.35 Minor conflicts will not defeat class certification.36
Plaintiffs contend that the proposed class attorneys have extensive experience in class action cases involving federal civil rights claims for prisoners, and have the resources necessary to litigate this action.37 As Plaintiffs note, the proposed class counsel have previously litigated a similar class action challenging the constitutionality of a correctional facility’s postcard-only policy in this District.38 Further, Plaintiffs contend that because they seek only injunctive relief against the Policy, they have no interests antagonistic or in conflict with the interests of members of the class. Defendants have identified no such conflicts, and the Court is aware of none. Therefore, the Court finds that Plaintiffs have satisfied the requirement of Rule 23(a)(4) concerning adequacy of representation.
D. Rule 23(b) Requirements After satisfying the prerequisites under Rule 23(a), Plaintiffs must demonstrate that the proposed class action fits within one of the three categories described in Rule 23(b). Here, Plaintiffs seek to proceed under Rule 23(b)(2), which states “[a] class action may be maintained if Rule 23(a) is satisfied and if . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”39 The Tenth Circuit has

case).

35Id. 36Id. 37Doc. 5 at 9. 38See Jackson, 2014 WL 1230225 (listing Plaintiff’s counsel as attorneys in analogous postcard-only policy
39Fed. R. Civ. P. 23(b)(2).

9

interpreted this to “require that a class must be amenable to uniform group remedies.”40 Here, Plaintiffs seek one remedy, that is, an order enjoining the application of the postcard-only policy, which applies to all members of the class. Thus, the remedy Plaintiffs seek would apply uniformly to the class as a whole. Accordingly, the Court finds that Plaintiffs have satisfied the requirements of Rule 23(b)(2).
E. Appointment of Counsel Under Rule 23(g) “An order certifying a class must also appoint class counsel that will adequately represent the interests of the class.”41 In appointing class counsel, the court must consider: (1) the work counsel has done in identifying or investigating potential claims in the action; (2) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (3) counsel’s knowledge of the applicable law; and (4) the resources that counsel will commit to representing the class.42 Plaintiffs are currently represented by both the American Civil Liberties Union (“ACLU”) Foundation of Kansas and the Social Justice Law Collective. And, as explained above, Plaintiffs’ counsel has significant experience in handling class actions involving jail and prison inmates.43 Therefore, the Court appoints Plaintiffs’ current attorneys as co-lead class counsel for this action.44
40Shook v. Bd. of Cnty. Comm’rs of Cnty. of El Paso, 543 F.3d 597, 604 (10th Cir. 2008). 41Fed R. Civ. P. 23(g); Pinkston v. Wheatland Enters., Inc., No. 11-CV-2498-JAR, 2013 WL 1302053, at *6 (D. Kan. Mar. 27, 2013). 42Fed. R. Civ. P. 23(g)(1)(A). 43See supra, Part II.C.4. 44See Jackson, 2014 WL 1230225, at *7 (appointing Plaintiffs’ counsel as co-lead class counsel in analogous case).
10

F. Notice Pursuant to Rule 23(c)(2)(B)

Under Rule 23(c)(2)(A), when a court certifies a class under 23(b)(2), the Court “may direct appropriate notice to the class.”45 Plaintiffs have not come forward with any potential

notice options. As the Court has explained, this class, consisting of correspondents of inmates at

the Jail, is subject to change because of the fluid nature of the Jail’s population. Thus, notice in

this case is impracticable, if not impossible. Accordingly, the Court finds that no particular notice requirements are needed.46

IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion to Certify

Class (Doc. 4) is granted.

IT IS SO ORDERED.

Dated: August 4, 2016

S/ Julie A. Robinson JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

45Fed. R. Civ. P 23(c)(2)(A). 46See Jackson, 2014 WL 1230225, at *7 (finding that notice was not practicable or necessary in relation to a class analogous to that in this case).
11

 
 Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RUSSELL K. OGDEN, BEATRICE HAMMER, )

and JOHN SMITH, on behalf of themselves and )

a class of persons similarly situated;

)

)

Plaintiffs,

)

)

v.

)

)

PETE FIGGINS, in his official capacity as

)

Sheriff for Wilson County, Kansas,

)

)

Defendant.

)

Case No. 2:16-cv-02268 CLASS ACTION

JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF LAW IN SUPPORT
Plaintiffs, individually and on behalf of the Settlement Class defined herein (hereinafter “Plaintiffs”), and Defendant Pete Figgins, in his official capacity as Sheriff for Wilson County, Kansas (hereinafter “Defendant Sheriff” and collectively referred to as the “Parties”), jointly move the Court for entry of an order preliminarily approving the Settlement Agreement and Consent Decree (hereinafter “Consent Decree,” attached as Exhibit A) and Notice of Proposed Settlement (hereinafter “Notice,” attached as Exhibit B), agreed to by the Parties in this matter.
I. BACKGROUND Plaintiffs filed this action in April 2016, seeking declaratory and injunctive relief pursuant to 42 U.S.C. § 1983, and seeking to enjoin the Defendant Sheriff from forbidding inmates housed in the Wilson County Correctional Facility (hereinafter the “Jail”), and their parents, children, spouses, relatives, friends, loved ones, and other correspondents from sending letters enclosed in envelopes to and from the Jail (hereinafter the “Postcard-Only Mail Policy”).

1

Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 2 of 10
Prior to the Postcard-Only Mail Policy, the Wilson County, Kansas Sheriff permitted Jail inmates to send and receive mail correspondence enclosed in envelopes.
Following discovery on Plaintiffs’ allegations, the Parties engaged in arms’-length negotiations for a comprehensive resolution of this litigation. As a result of these negotiations, the Parties have agreed to a resolution of all claims brought against the Defendant Sheriff in this action, as set forth in the attached Consent Decree.
The Parties submit that the attached Consent Decree constitutes a fair, reasonable, and adequate resolution for the Plaintiffs, pursuant to Rule 23(e)(2), Federal Rules of Civil Procedure, and that the terms of the resolution, as set forth in the attached Consent Decree, are in the best interests of the Parties and the public. The Parties further submit that the attached Consent Decree constitutes narrowly drawn relief that extends no further than necessary to correct the alleged violation of Plaintiffs’ constitutional rights and is the least intrusive means necessary to correct the alleged violation of Plaintiffs’ constitutional rights.
As such, the Parties request that the Court enter an order (1) granting preliminary approval of the proposed settlement as set forth in the attached Consent Decree; (2) preliminarily certifying the proposed settlement class under Rule 23(b)(2), Federal Rules of Civil Procedure; (3) directing that members of the settlement class be given notice of the pendency of this action and the proposed settlement in the form and manner proposed by the Parties in the attached Consent Decree (Exhibit A) and Notice (Exhibit B); and (4) scheduling a hearing at which the Court will consider final approval of the settlement and entry of the attached Consent Decree.
II. OUTLINE OF PROPOSED SETTLEMENT A. The Settlement Class
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Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 3 of 10
The proposed settlement has been reached on behalf of the “Settlement Class,” which will herein be defined as:
All current and former outside correspondents who wish to write letters to, and/or receive letters from, inmates in the Wilson County Correctional Facility and who are subject to or affected by the Postcard-Only Mail Policy. B. Inmate Mail Provisions The principle provisions of the attached Consent Decree are as follows: Inmates May Send Letters. The Sheriff will not prohibit or restrict Jail inmates from mailing non-privileged letters in envelopes to correspondents outside the Jail, except as set forth in the Consent Decree. Inmates May Receive Letters. The Sheriff will not prohibit or restrict Jail inmates from receiving non-privileged letters in envelopes from correspondents outside the Jail, except as set forth in the Consent Decree. No Volume Restrictions on Mail. The Sheriff will not restrict the number of letters or postcards that an inmate can send or receive, unless there is clear evidence that such correspondence (i) poses a safety threat to the Jail, its inmates and/or staff; or (ii) reads of conducting and/or encouraging criminal activity. Additionally, Jail inmates may not correspond with (i) other inmates within the Jail or another correctional facility; or (ii) any individual that is listed as non-contact by a court or law enforcement agency due to domestic violence, endorsed witnesses, or victims of a crime. Content Regulation Not Covered. The Consent Decree is not intended to restrict any authority the Defendant Sheriff may have to regulate the content of correspondence.
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Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 4 of 10
C. Notice to the Settlement Class Rule 23(e)(1), Federal Rules of Civil Procedure, requires that the Court direct notice in a reasonable manner to all members of the Settlement Class who would be bound by the proposed resolution of this matter. In satisfaction of this requirement, the Parties have agreed on the proposed wording of the Notice to members of the Settlement Class, attached as Exhibit B. As set forth in the attached Consent Decree, the Defendant Sheriff, within fourteen (14) days of the Court’s preliminary approval of the attached Notice, shall provide the Notice to those members of the Settlement Class as presently constituted by publication in the Wilson County Citizen. Additionally, the Defendant Sheriff shall post a copy of the attached Notice in each pod and visitation area in the Jail, to remain posted for no less than sixty (60) days, and shall publish a copy of the Notice on the Jail’s public website. The attached Notice shall be posted, provided, and published, in English and Spanish. The cost of providing such notice shall be borne by the Defendant Sheriff in his official capacity. D. Costs, Expenses and Attorneys’ Fees In settlement of all claims for attorneys’ fees, taxable costs, and non-taxable litigation expenses incurred through the date of entry of the proposed Consent Decree, the Defendant Sheriff agrees to tender to Class Counsel the gross sum of TEN THOUSAND DOLLARS ($10,000.00), via check made payable to the Social Justice Law Collective Trust Account (Fed. Tax ID No. 46-0961071) (the “Settlement Amount”), within fourteen (14) days of the Court’s final entry of this Consent Decree. The Parties agree that this settlement amount includes the resolution and payment in full of all of Plaintiffs’ claims for reasonable attorneys’ fees and costs.
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Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 5 of 10
E. Court Adoption The attached Consent Decree is subject to and conditioned upon the Court’s entry of the attached Consent Decree and dismissal of the action with prejudice, subject to the Court’s jurisdiction to enforce the attached Consent Decree. In the event that the Court declines to approve or enter the attached Consent Decree, the Parties agree that the attached Consent Decree shall be null and void and without prejudice to the Parties’ rights. III. PRELIMINARY COURT APPROVAL A. Proposed Terms of Settlement Rule 23(e), Federal Rules of Civil Procedure, requires judicial approval for any compromise of claims brought on a class basis. Review of a proposed class action settlement generally involves a two-step process: preliminary approval and a fairness hearing. See Manual for Complex Litigation, Fourth, § 21.632 (West 2004). First, the court reviews the proposed terms of settlement and makes a preliminary determination on the fairness, reasonableness and adequacy of the settlement terms. See id. “Where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval, preliminary approval is granted.” In re NASDAQ MarketMakers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997) (citing Manual for Complex Litigation, Third, § 30.41 (West 1995)); see also Freebird, Inc. v. Merit Energy Co., 2012 U.S. Dist. LEXIS 173075, No. 10-1154-KHV, 2012 WL 6085135, at *5 (D. Kan. Dec. 6, 2012) (“[The Court] will ordinarily grant preliminary approval where the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies,
5

Case 2:16-cv-02268-JAR-KGG Document 25 Filed 06/16/17 Page 6 of 10
does not improperly grant preferential treatment to class representatives or segments of the class and falls within the range of possible approval.”) (citations omitted).
Moreover, it is well established that there is an overriding public interest in settling and quieting litigation, particularly in the context of a class action. See In re Bank of Am. Wage & Hour Empl. Litig., 740 F. Supp. 2d 1207, 1219 (D. Kan. 2010); see also Newberg on Class Actions § 11:41, at 87 (4th ed. 2002) (“The compromise of complex litigation is encouraged by the courts and favored by public policy.”). In furtherance of this public interest, in considering a proposed settlement, the trial court need not reach any ultimate conclusion on the substantive factual or legal issues of plaintiffs’ claims. See FreeBird, Inc., 2012 U.S. Dist. LEXIS 173075 at *13, 2012 WL 6085135, at *5. “We recognize that since ‘[t]he very purpose of a compromise is to avoid the trial of sharply disputed issues and to dispense with wasteful litigation,’ the court must not turn the settlement hearing ‘into a trial or a rehearsal of the trial’; and that the court ‘is concerned with the likelihood of success or failure and ought, therefore, to avoid any actual determination of the merits.’” Saylor v. Lindsley, 456 F.2d 896, 904 (2d Cir. 1972) (citation omitted). Instead, the court’s primary concern should be whether the proposed settlement is fair, reasonable and adequate. See Cotton v. Hinton, 559 F.2d 1326, 1330-31 (5th Cir. 1997).
The proposed settlement, as set forth in the attached Consent Decree, is fair, reasonable, and adequate. The attached Consent Decree is the product of extensive, arm’s-length negotiations between experienced counsel, who have concluded that the proposed settlement strikes a reasonable balance between the constitutional rights of the Settlement Class and the legitimate security concerns of the Defendant Sheriff, and is in the best interests of their respective clients and the Settlement Class as a whole. See Reed v. General Motors Corp., 703 F.2d 170, 175 (5th Cir. 1983) (“[T]he value of the assessment of able counsel negotiating at
6

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arm’s length cannot be gainsaid. Lawyers know their strengths and they know where the bones are buried.”); see also In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 359, 380 (N.D. Ohio 2001) (“[W]hen a settlement is the result of extensive negotiations by experienced counsel, the Court should presume it is fair.”) (citations omitted).
Furthermore, the proposed Consent Decree has no obvious deficiencies, and does not mandate preferential treatment to class representatives or segments of the class. See FreeBird, Inc., 2012 U.S. Dist. LEXIS 173075 at *12, 2012 WL 6085135, at *5. The proposed Consent Decree constitutes a complete resolution of all claims against the Defendant Sheriff by all Plaintiffs, including named Plaintiffs Russell K. Ogden, Beatrice Hammer, and John Smith, involving all alleged violations of their First Amendment rights, and no member of the Settlement Class, including the named Plaintiffs, will receive any monetary payment or additional relief as part of the relief contained therein. As such, the settlement terms as set forth in the attached Consent Decree merit preliminary approval by this Court and submission to the Settlement Class for consideration.
B. Notice “If the court preliminarily approves the settlement, it must direct the preparation of notice of the certification of the settlement class, the proposed settlement and the date of the final fairness hearing.” Manual for Complex Litigation, Fourth, § 21.632-21.635 (West 2004); see also Fed. R. Civ. P. 23(e)(1) (“The court must direct notice in a reasonable manner to all class members who would be bound by the [proposed settlement, voluntary dismissal, or compromise].”). The standard for the adequacy of a settlement notice in a class action is measured by reasonableness. See Faught v. American Home Shield Corp., 668 F.3d 1233, 1239 (11th Cir. 2011). “There are no rigid rules to determine whether a settlement notice to the class
7

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satisfies constitutional or Rule 23(e) requirements; the settlement notice must fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005) (internal quotation marks and citations omitted).
The attached Notice submitted by the Parties clearly meets this reasonableness standard in all respects. The attached Notice (1) describes the nature, history, and status of the litigation; (2) sets forth a clear definition of the proposed Settlement Class; (3) sets forth the basic terms of the proposed Consent Decree; and (4) advises members of the Settlement Class of the method to object to the proposed Consent Decree, if desired. In addition, the proposed Notice provides contact information for Class Counsel, discloses the date, time and place of the formal Fairness Hearing, and provides a method for members of the Settlement Class to obtain full copies of the proposed Consent Decree.
In granting preliminary settlement approval, the Court should also approve the Parties’ proposed form and method of providing notice to members of the Settlement Class, as set forth in the attached Notice.
WHEREFORE the Parties jointly request the Court’s entry of an Order: (1) granting preliminary approval of the proposed settlement as set forth in the attached Consent Decree (Exhibit A); (2) preliminarily certifying the proposed Settlement Class pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure; (3) directing that members of the Settlement Class be given notice of the pendency of this action and the proposed settlement in the form and manner proposed by the Parties in the attached Consent Decree (Exhibit A) and Notice (Exhibit B); and
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(4) scheduling a hearing at which the Court will consider final approval of the settlement
and entry of the attached Consent Decree.
Respectfully submitted,
By: /s/ Joshua A. Glickman Joshua A. Glickman, Esq. Kansas Bar No. 25889 Social Justice Law Collective, PL 6709 W. 119th St., #198 Overland Park, KS 66209 Tel. (913) 213-3064 Fax: (866) 893-0416 Email: josh@sjlawcollective.com
Stephen Douglas Bonney, KS No. 12322 ACLU Foundation of Kansas 6701 W. 64th Street, Suite 210 Overland Park, KS 66202 Tel. (913) 490-4102 Fax: (913) 490-4119 E-mail: dbonney@aclukansas.org
Attorneys for the Plaintiffs
By: /s/ Terelle A. Mock . Terelle A. Mock, Esq. Kansas Bar No. 21465 Andrew D. Holder Kansas Bar No. 25456 Fisher, Patterson, Sayler & Smith, LLP 3550 S.W. 5th Street Topeka, Kansas 66606 Tel. (785) 232-7761 Fax: (785) 232-6604 Email: tmock@fisherpatterson.com
aholder@fisherpatterson.com
Attorneys for the Defendant
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court using the CM/ECF system, on this 16th day of June, 2017, which will send a notice of electronic filing to all attorneys of record.

/s/ Joshua A. Glickman

.

Joshua A. Glickman, Esq.

10

 
 Case 2:16-cv-02268-JAR-KGG Document 29 Filed 11/03/17 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RUSSELL K. OGDEN, ET AL.,

Plaintiffs,

v.

Case No. 2:16-CV-02268-JAR

PETE FIGGINS, In his Official Capacity as Sheriff for Wilson County, Kansas,

Defendant.

MEMORANDUM & ORDER Plaintiffs Russell K. Ogden, Beatrice Hammer, and John Smith filed this class action asserting claims, individually and on behalf of others similarly situated, under 42 U.S.C. § 1983 for declaratory and injunctive relief against Defendant Pete Figgins in his official capacity as Sheriff of Wilson County, Kansas. Plaintiffs allege that Defendant’s postcard-only mail policy is an unconstitutional violation of the First and Fourteenth Amendment rights of inmates at the Wilson County Correctional Facility and their friends and family members. In an Order dated July 19, 2016,1 the Court preliminarily approved the parties’ proposed Settlement Agreement and Consent Decree (“Agreement”).2 After notice to Settlement Class members and a fairness hearing, the Court now considers the Agreement for final approval and entry. Because the Court finds that the Agreement is fair, reasonable, and adequate, it adopts and enters the Agreement. I. Factual and Procedural Background On April 28, 2016, Plaintiffs filed this class action suit challenging Defendant’s postcardonly mail policy as an unconstitutional violation of the First and Fourteenth Amendment rights

1 Doc. 26. 2 Doc. 25-1.

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of inmates and their friends and family members. Plaintiffs, whose family members are incarcerated at the Wilson County Correctional Facility in Fredonia, Kansas, allege that the jail’s policy of prohibiting inmates and their correspondents from sending letters enclosed in envelopes and requiring them to instead conduct all correspondence on pre-paid U.S. Postal cards impermissibly restricts inmates and their outside correspondents from exercising their right to communicate in writing in violation of the First Amendment. Plaintiffs further contend that the jail’s postcard-only policy violates the due process protections of the Fourteenth Amendment because it does not afford either the sender or the intended recipient any notice of a rejected communication or provide them with an opportunity to challenge that determination.
In an Order dated August 4, 2016, the Court certified the Settlement Class as follows: All current and former outside correspondents who wish to write letters to, and/or receive letters from, inmates in the Wilson County Correctional Facility and who are subjected to or affected by the Postcard-Only Mail Policy.3
On November 8, 2016, the parties filed a Joint Notice of Settlement,4 and on June 16, 2017, the parties filed a Joint Motion for Preliminary Approval of Class Action Settlement,5 which included the Agreement reached by the parties.
The Court reviewed and preliminarily approved the terms of the Agreement on July 19, 2016, with instruction to give notice to the Settlement Class.6 The Notice proposed by the
3 Doc. 11 at 5. This case is similar to a previous prisoner civil rights class action lawsuit before Judge Melgren of this District, Jackson, et al. v. Ash. In that case, brought by the same Plaintiffs’ counsel, Judge Melgren issued a final Memorandum and Order approving a class action settlement on February 23, 2105. Jackson, et al. v. Ash, No. 13-2504-EFM-JPO, 2015 WL 751835 (D. Kan. Feb. 23, 2015). In the Jackson case, plaintiffs sought declaratory and injunctive relief pursuant to § 1983 to enjoin the Wyandotte County Sherriff from enforcing a postcard-only mail policy at the Wyandotte County Adult Detention Center. The case involved two plaintiff classes, one comprised of inmates and one comprised of outside correspondents.
4 Doc. 21. 5 Doc. 25. 6 Doc. 26.
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parties and adopted by the Court included a brief explanation of the lawsuit, a description of the proposed terms of the Agreement, instructions for objecting, and the date of the final fairness hearing. Members of the Settlement Class received notice by a posting in each pod and visitation area at the Wilson County Detention Center, publication in the Wilson County Citizen, and by posting on a website associated with the Wilson County Sheriff’s Department. Notice was posted and published in both English and Spanish. Settlement Class members were given 60 days to object. The Court received no objections. Following the end of the objection period, the Court held a fairness hearing under Federal Rule of Civil Procedure 23(e)(2) on October 25, 2017. II. Analysis
Federal Rule of Civil Procedure 23(e) authorizes a court to approve a class action settlement after notice, a hearing, and "on finding that [the settlement] is fair, reasonable, and adequate." Tenth Circuit courts determine whether a proposed settlement is fair, reasonable, and adequate by considering:
(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable.7 The evidence presented to the Court supports approval and adoption of the Agreement.
7 Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002) (quoting Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir. 1993), abrogated on other grounds by Devlin v. Scardelletti, 536 U.S. 1 (2002)).
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First, the Court finds that the parties fairly and honestly negotiated the Agreement. “With regard to this first factor, the Court is concerned with the protection of class members whose rights may not have been given ‘adequate consideration during the settlement negotiations.’”8 The Court is to “ensure that the agreement is not illegal, a product of collusion, or against the public interest.”9 “The fairness of the negotiating process is to be examined ‘in light of the experience of counsel, the vigor with which the case was prosecuted, and [any] coercion or collusion that may have marred the negotiations themselves.’”10 The record demonstrates that the Agreement is the result of cooperative, good-faith, and arms’-length negotiation by skilled counsel who are familiar with litigating civil rights claims. The Agreement was reached following both parties’ deliberate consideration of the action’s merits and uncertainties and a balancing of Plaintiffs’ constitutional rights with Defendant’s legitimate security interests in operating the jail. The Agreement does not provide preferential treatment to class representatives or segments of the Settlement Class, and constitutes a complete resolution of all claims against Defendant by all Plaintiffs. The Court is convinced that the first factor favors approving the Agreement.
Under the second factor, the Court must examine “whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt. The presence of such doubt augurs in favor of settlement because settlement creates a certainty of some recovery, and eliminates doubt, meaning the possibility of no recovery after long and expensive litigation.”11
8 McNeely v. Nat’l Mobile Healthcare, LLC, No. CIV-07-933-M, 2008 WL 4816510, at *11 (W.D. Okla. Oct. 27, 2008) (quoting Wilkerson v. Martin Marietta Corp., 171 F.R.D. 273, 283 (D. Colo. 1997)). 9 Id. at *11 (quoting United States v. Colo., 937 F.3d 505, 509 (10th Cir. 1991)). 10 Ashley v. Regional Transp. Dist. & Amalgamated Transit Union Div. 1001 Pension Trust Fund, Civil No. 05-cv01567-WYD-BNB, 2008 WL 384579, at *5 (D. Colo. Feb. 11, 2008) (quoting Malchman v. Davis, 706 F.2d 426, 433 (2d Cir. 1983)). 11 Id. at *6 (quoting In re Qwest Commc’ns Int’l, Inc. Sec. Litig., 625 F. Supp. 2d 1133, 1138 (D. Colo. 2009)).
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In this case, the parties appropriately estimate that serious legal and factual uncertainties obscure the ultimate outcome of this action. Both parties possess valid legal arguments and a large body of favorable evidence. As counsel indicated at the fairness hearing on October 25, 2017, authority does not definitively resolve the constitutionality of Defendant's postcard-only mail policy. Neither the United States Supreme Court nor the Tenth Circuit has directly addressed the issue. Those courts that have evaluated the constitutionality of postcard-only policies remain divided.12 The unresolved nature of this legal issue undermines any certainty regarding the outcome of this litigation. The second factor therefore favors approving the Agreement.
Under the third factor, the Court must examine whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted litigation.13 The Court is satisfied that the Agreement provides meaningful, immediate recovery to all Settlement Class members that might otherwise be unrecoverable after a decision on the merits. The Agreement addresses the two core concerns of all class members—privacy and length of correspondence. Plaintiffs allege that Defendant's postcard-only policy unconstitutionally limits the content and amount of their speech to the material that one can comfortably and legibly disclose on the exposed back of a postcard. Plaintiffs further allege that this policy has so effectively restricted their ability to communicate meaningfully that the policy interferes with their fundamental right to free speech. By permitting envelope correspondence that allows for an unlimited number of pages and letters, the Agreement enhances the privacy and length of communications between
12 See Jackson, et al. v. Ash, No. 13-2504-EFM-JPO, 2015 WL 751835, at *2 n.13 (D. Kan. Feb. 23, 2015) (discussing divided authority on constitutionality of postcard-only mail policies).
13 See id. at *2 (“The value of the settlement must be weighed against ‘the possibility of some greater relief at a later time, taking into consideration the additional risks and costs that go hand in hand with protracted litigation.’”) (quoting In re Sprint Corp. ERISA Litig., 443 F. Supp. 2d 1249, 1261 (D. Kan. 2006)); see also Lopez v. City of Santa Fe, 206 F.R.D. 285, 292 (D. N.M. 2002) (finding value of immediate injunctive relief through settlement outweighed possibility of future relief where “[p]laintiffs could not have received a better resolution had there been protracted litigation”).
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Settlement Class members and jail detainees. As such, the additional privacy and permitted length of correspondence represent a substantial gain for Settlement Class members.
Further, the Court finds that immediately securing these gains is worth forgoing the expense and uncertainty of further litigation. For the reasons discussed under factor two, it is likely that ultimately resolving this case would require further motions, possibly trial, and almost certainly appeals. Not only would further litigation delay Settlement Class members’ relief for a substantial period of time, but the ultimate resolution of this case may forever deny them any relief. Considering the division of authority on the constitutionality of postcard-only mail policies, Plaintiffs risk much in pursuing a decision on the merits. This risk is unmitigated, moreover, by the uncertain prospect of obtaining more meaningful relief. The Court is therefore satisfied that the third factor also favors approving the Agreement.
Under the fourth factor, the Court must evaluate whether the parties believe that the settlement is fair and reasonable. In doing so, the Court should “defer to the judgment of experienced counsel who has competently evaluated the strength of his proofs.”14 “When a settlement is reached by experienced counsel after negotiations in an adversarial setting, there is an initial presumption that the settlement is fair and reasonable.”15 Here, both parties endorse the Agreement as justly resolving Plaintiffs’ claims. In addition to saving both parties the expense and efforts of further litigation, the Agreement represents a compromise of both parties’ interests. As discussed above, the Agreement reforms the jail’s mail policy to accommodate Settlement Class members’ demands for more private and lengthy correspondence. But the
14 Williams v. Vukovich, 720 F.2d 909, 922–23 (6th Cir. 1983); see also Marcus v. Kan. Dept. of Revenue, 209 F.Supp.2d 1179, 1183 (D. Kan. 2002) (“Counsel’s judgment as to the fairness of the agreement is entitled to considerable weight”); Lopez, 206 F.R.D. at 292 (noting that “the trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel”) (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)).
15 Marcus, 209 F. Supp. 2d at 1183 (citing Trief v. Dun & Bradstreet Corp., 840 F. Supp. 277 (S.D.N.Y. 1993)).
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Agreement also preserves the jail’s security interests by: 1) providing that Defendant may restrict the volume of mail sent or received when there is clear evidence that such correspondence threatens jail safety or regards the conducting of criminal activity; 2) prohibiting inmates from corresponding with other inmates or with individuals listed as non-contact by a court or law enforcement agency; and 3) maintaining Defendant’s authority to regulate the content of envelope correspondence. The Agreement also limits Defendant’s exposure to Plaintiffs’ attorneys’ fees, which are recoverable by a prevailing party in a suit brought pursuant to 42 U.S.C. § 1983.16 Specifically, the record shows that Plaintiffs’ counsel significantly reduced their attorneys’ fees to gain this settlement, recovering well below a reasonable lodestar amount with fees of less than $100 per hour. This is a significant concession by Plaintiffs to Defendant. For all of these reasons, the Court finds that these compromises confer fair and reasonable benefits to both parties that might be lost in the absence of settlement. Thus, the fourth factor also supports the Agreement.
Finally, the Prison Litigation Reform Act (“PLRA”) requires that, before approving a class settlement in a prison conditions case, the Court must find that the proposed relief “is narrowly drawn.”17 Under PLRA, relief is narrowly drawn if it “extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.”18 In determining whether the proposed relief is narrowly drawn, “the court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.”19 The Court finds that the
16 42 U.S.C. § 1988. 17 18 U.S.C. §§ 3626(a)(1), (c)(1). 18 18 U.S.C. §§ 3626(a)(1). 19 Id.
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Agreement corrects the alleged constitutional violations caused by Defendant’s postcard-only policy through narrowly drawn means. Under the Agreement, envelope correspondence is a necessary means of relief. Although screening envelope correspondence for contraband requires additional jail resources, screening envelope correspondence is minimally intrusive under the Agreement’s terms. Further, the Agreement maintains the safety-based limitations on prison correspondence discussed above to protect the jail’s security interests. Thus, the Agreement complies with PLRA.
In conclusion, the Court finds that the Agreement proposed by the parties is fair, reasonable, and adequate. For the preceding reasons, the Agreement is approved. The Court adopts and enters the Agreement as part of the judgment in this case and instructs the Clerk of the Court to dismiss Plaintiffs’ claims with prejudice.
IT IS THEREFORE ORDERED that the parties’ Settlement Agreement and Consent Decree (Doc. 25-1) is hereby approved under Federal Rule of Civil Procedure 23(e)(2) and is entered as part of the judgment in this case.
IT IS FURTHER ORDERED that according to Federal Rule of Civil Procedure 41(a)(2), plaintiffs’ claims are dismissed with prejudice.

Dated: November 2, 2017

S/ Julie A. Robinson JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

8

 
 Case 2:16-cv-02268-JAR-KGG Document 25-1 Filed 06/16/17 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

RUSSELL K. OGDEN, BEATRICE HAMMER, and JOHN SMITH, on behalf of themselves and on behalf of a class of persons similarly situated;

Plaintiffs, v.

Case No. 2:16-cv-02268-JAR-KGG CLASS ACTION

PETE FIGGINS, in his official capacity as Sheriff for Wilson County, Kansas,

Defendant. /

SETTLEMENT AGREEMENT AND CONSENT DECREE

Plaintiffs Russell K Ogden, Beatrice Hammer, and John Smith, individually and on

behalf of the Settlement Class defined below (“Plaintiffs”), and Defendant Pete Figgins, in his

official capacity as Sheriff for Wilson County, Kansas (“Defendant Sheriff” and collectively

referred to as the “Parties”), hereby agree to and submit the following Settlement Agreement and

Consent Decree (“Consent Decree”) for adoption and entry by the Court.

I. RECITALS

A. WHEREAS Plaintiffs filed this action on April 28, 2016, seeking declaratory and

injunctive relief pursuant to 42 U.S.C. § 1983, and seeking to enjoin the Defendant Sheriff from

forbidding inmates housed in the Wilson County Correctional Facility (“Jail”), and their parents,

children, spouses, relatives, friends, and other correspondents, in violation of the First and

Fourteenth Amendments to the U.S. Constitution, from sending letters enclosed in envelopes to

and from the Jail (“Postcard-Only Mail Policy”); and

EXHIBIT A

Case 2:16-cv-02268-JAR-KGG Document 25-1 Filed 06/16/17 Page 2 of 15
B. WHEREAS the United States District Court for the District of Kansas has subject matter jurisdiction over this dispute; see 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343(a)(3) (civil rights); and
C. WHEREAS the Parties, in an effort to avoid the burden, costs, and inherent risks of further litigation, agree that settlement is in their best interests; and
D. WHEREAS the Parties have engaged in formal and informal discovery in this matter, including the exchange of information and documents; and
E. WHEREAS this action has been certified by the Court, pursuant to Rule 23, Federal Rules of Civil Procedure, as a class action on behalf of all current and future outside correspondents who wish to write letters to, and/or receive letters from, inmates in the Jail and who are subject to or affected by the Postcard-Only Mail Policy; and
F. WHEREAS by agreeing to this Consent Decree, the Defendant Sheriff does not admit to liability; and
G. WHEREAS the signatories to this Consent Decree represent that they are authorized to enter into this Consent Decree and promise to carry out the various promises and representations made in it; and
H. WHEREAS this Consent Decree includes a general release and, upon execution by the Defendant Sheriff of the promises and representations made and the Court’s entry of this Consent Decree, the Defendant Sheriff will be released from all claims and liability as stated in this Consent Decree; and
I. WHEREAS the Parties agree that the relief provided in this Consent Decree is narrowly drawn and extends no further than necessary to correct the alleged violation of
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Plaintiffs’ constitutional rights, and is the least intrusive means necessary to correct the alleged violation of Plaintiffs’ constitutional rights, 18 U.S.C. § 3626(a)(1)(A); and
J. WHEREAS the Parties agree that the terms and conditions of this Consent Decree constitute a fair, reasonable, and adequate resolution for the Plaintiffs under Rule 23(e)(2), Federal Rules of Civil Procedure.
NOW, THEREFORE, the Parties agree, subject to the Court’s entry of this Consent Decree, as follows:
II. DEFINITIONS 1. The following terms as used in this Consent Decree have the meanings set forth below. In construing these definitions, the singular shall include the plural and the plural shall include the singular:
(a) “Envelope Correspondence” means a letter enclosed in an envelope. Such correspondence includes, but is not limited to, letters, paperwork, newspaper clippings, photographs, drawings, or a combination of one or more of these items.
(b) “Privileged” describes a piece of correspondence that is sent to or from attorneys, the courts, officials of the confining authority, state or local chief executive officers, administrators of grievance systems, members of the paroling authority and public officials, and local, state, and federal government correspondence.
(c) “Non-Privileged” describes all other correspondence that is not otherwise Privileged.
(d) “Jail” refers to the Wilson County Correctional Center. III. SETTLEMENT CLASS
2. The Settlement Class, as used herein, will hereby be defined as:
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All current and future outside correspondents who wish to write letters to, and/or receive

letters from, inmates in the Wilson County Correctional Facility and who are subject to or

affected by the Postcard-Only Mail Policy.

IV.

TERMS AND EFFECT OF CONSENT DECREE

3. Full Resolution. This Consent Decree resolves in full all claims against the

Defendant Sheriff by all Plaintiffs, including named Plaintiffs Russell K. Ogden, Beatrice

Hammer, and John Smith and all members of the settlement class, involving alleged violations of

their First and Fourteenth Amendment rights, or of any other federal, state or local law,

regulation, duty, or obligation which are based upon or could be based upon or arise from

Defendant Sheriff’s Postcard-Only Mail Policy and from the facts alleged in Case No. 2:16-cv-

02268-JAR-KGG, filed in the United States District Court, District of Kansas.

4. Release. Upon execution by the Defendant Sheriff of the promises and

representations made herein and the Court’s entry of this Consent Decree, the Plaintiffs agree

that the Defendant Sheriff is released from any and all liability, claim, action or demand of

whatever kind or sort which any of them might have against the Defendant Sheriff, and that they

release Defendant Sheriff from any and all grievances, suits, causes of action, and claims of any

nature whatsoever, whether known or unknown, including but not limited to all claims asserted

in this action together with any and all charges, complaints and claims, which are based on

actions, facts or occurrences that relate to the facts alleged in the Complaint.

5. Merger. This Consent Decree contains all the terms and conditions agreed upon

by the Parties hereto regarding the subject matter of the instant proceeding, and no oral

agreement entered into at any time nor any written agreement entered into prior to the execution

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of this Consent Decree shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except as expressly provided herein.
6. Liability. Nothing contained in this Consent Decree, nor any order entered by the Court adopting this Consent Decree, is or shall be construed as an admission by the Defendant Sheriff of the truth of any allegations or the validity of any claim asserted in the Complaint, or of the Defendant Sheriff’s liability therefor, nor as a concession or an admission of any fault or omission, of any act or failure to act, or of any statement, written document, or report heretofore filed or made by the Defendant Sheriff. Nor shall this Consent Decree nor any confidential papers related hereto and created for settlement purposes only, nor any of the terms of either, be offered or received as evidence in any civil, criminal or administrative action or proceeding against the Defendant Sheriff, nor shall they be construed by anyone for any purpose whatsoever as an admission or presumption of any wrongdoing on the part of the Defendant Sheriff, nor as an admission of the Defendant Sheriff that the modifications or concessions given hereunder represents the relief that could be recovered at trial. However, nothing herein shall be construed to preclude the use of this Consent Decree in order to effectuate the consummation, enforcement, or modification of its terms.
7. Assignment. This Consent Decree shall apply to all persons who are members of the Settlement Class. This Consent Decree creates no rights in favor of any other person and creates no obligations or duties on the part of the Defendant Sheriff beyond the terms of this Consent Decree. This Consent Decree shall bind all parties to this action as well as the successors in office to the Defendant Sheriff, and to any other person or entity who in the future operates the Jail. The Defendant Sheriff agrees to use his best efforts to make the requirements of this Consent Decree known to each of his employees, deputies, and agents who are
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responsible for operation of the Jail. Nothing set forth in this particular Paragraph shall bar or limit the Court’s power to enforce the terms of this Consent Decree or the right of the Defendant Sheriff or any successor Sheriff or any other person or entity who in the future operates the Jail to petition the Court for modification of this Consent Decree.
8. Enforcement. Except as otherwise provided in this Consent Decree, if class counsel believes that there has been a failure to comply with the terms of this Consent Decree, before moving the Court to redress the non-compliance, class counsel must notify the Defendant Sheriff and his counsel in writing of the alleged non-compliance and include in the notice sufficient specificity so that the Defendant Sheriff can identify the nature of the allegation, including describing with particularity the terms of the Consent Decree that are alleged to have been violated, the specific errors or omissions upon which the alleged violations are based, and the corrective action sought. Upon class counsel’s request, the Defendant Sheriff shall provide additional, relevant information pertinent to the alleged violations. The Parties then have twentyeight (28) days from the date of written notification to meet and confer to attempt to resolve the issues. If the Parties are unable to resolve the dispute within twenty-eight (28) days, class counsel may file a motion or notice with the Court seeking appropriate relief. Class counsel may file such a motion without substituting new named representative plaintiffs, if the named plaintiffs at the time of the entry of this Consent Decree are no longer members of the class at the time of the filing of such a motion.
9. Costs, Expenses, and Attorneys’ Fees. In settlement of all claims for attorneys’ fees, taxable costs, and non-taxable litigation expenses incurred through the date of entry of the proposed Consent Decree, the Defendant Sheriff agrees to tender to Class Counsel the gross sum of TEN THOUSAND DOLLARS ($10,000.00), via check made payable to the Social Justice
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Law Collective Trust Account (Fed. Tax ID No. 46-0961071) (the “Settlement Amount”), within fourteen (14) days of the Court’s final entry of this Consent Decree. The Parties agree that this Settlement Amount includes the resolution and payment in full of all of Plaintiffs’ claims for reasonable attorneys’ fees and costs.
10. Court Approval. The Parties agree that they will take all necessary and appropriate steps to obtain preliminary approval from the Court of this Consent Decree, final approval and entry by the Court of this Consent Decree, and dismissal of the action with prejudice, subject to the Court’s jurisdiction to enforce this Consent Decree and adjudicate any dispute over Plaintiffs’ attorney fees, costs, and litigation expenses.
11. Effective Date. This Consent Decree shall be effective immediately upon its entry by the Court.
12. Settlement Contingent on Court Adoption. The Parties agree that this Consent Decree is subject to and conditioned upon the Court’s entry of this Consent Decree. In the event that the Court declines to approve or enter this Consent Decree, the Parties agree that this Consent Decree shall be null and void and without prejudice to the Parties’ rights.
13. Waiver of Appeal. Upon the Court’s entry of this Consent Decree, the Parties waive their rights to appeal any existing order, decision, or ruling in this action. The Parties further waive their rights to appeal the Court’s entry of this Consent Decree.
14. Default. Subject to the foregoing terms, and following the Court’s entry of this Consent Decree, no default by any person or party to this Consent Decree in the performance of any of the covenants or obligations under this Consent Decree, or any judgment or order entered in conjunction with it, shall affect the dismissal of the Complaint, the preclusion of prosecution of actions, the discharge and release of the Defendant Sheriff, or the judgment entered approving
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these provisions. Nothing in the preceding sentence shall be construed to affect the Court’s jurisdiction to enforce this Consent Decree on a motion for contempt or any other motion seeking appropriate relief.
15. Captions. The captions of this Consent Decree are for convenience of reference only and in no way define, limit, or describe the scope or intent of this Consent Decree.
16. Severability. This Consent Decree is subject to the restrictions, limitations, terms and conditions of all applicable government regulations, approval, and clearances. If any term or provision of this Consent Decree is held invalid, illegal, or unenforceable in any respect for any reason, that invalidity, illegality, or unenforceability shall not affect any other term or provision hereof, and this Consent Decree shall be interpreted and construed as if such term or provision, to the extent the same shall have been held to be invalid, illegal, or unenforceable, had never been contained herein.
17. Recitals. The parties agree that recitals set forth above are true and that they constitute a part of this settlement.
V. INMATE MAIL PROVISIONS 18. The Defendant Sheriff’s specific obligations regarding Jail policies and practices under this Consent Decree are as follows: (a) Inmates May Send Letters. The Defendant Sheriff will not prohibit or restrict
Jail inmates from mailing Non-Privileged Envelope Correspondence to correspondents outside the Jail, except as set forth in this paragraph. (b) Inmates May Receive Letters. The Defendant Sheriff will not prohibit or restrict Jail inmates from receiving Non-Privileged Envelope Correspondence from correspondents outside the Jail, except as set forth in this paragraph.
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(c) No Volume Restrictions on Mail. The Defendant Sheriff will not restrict the number of pieces of Envelope Correspondence or Postcards that a Jail inmate can send or receive unless there is clear evidence that such correspondence (i) poses a safety threat to the Jail, its inmates and/or staff; or (ii) regards the conducting and/or encouraging of criminal activity. Additionally, Jail inmates may not correspond with (i) other inmates within the Jail or another correctional facility; or (ii) any individual that is listed as non-contact by a court or law enforcement agency due to domestic violence, endorsed witnesses, or victims of a crime.
(d) Content regulation not covered. This Consent Decree is not intended to restrict any authority the Defendant Sheriff may have to regulate the content of Envelope Correspondence.
19. Within twenty-one (21) days from the Court’s entry of this Consent Decree, the Defendant Sheriff shall revise all written policies, procedures, orders, regulations, and rules to conform to the above specific injunctive relief, including, but not limited to, the Postcard-Only Mail Policy, and shall provide copies of all such revised policies, procedures, orders, regulations, and rules to class counsel.
VI. NOTICE 20. Pursuant to Rule 23(e), Federal Rules of Civil Procedure, the Defendant Sheriff, within fourteen (14) days of the Court’s preliminary approval of the Notice of Proposed Settlement (hereinafter “Notice”) attached to this Consent Decree as Exhibit A, shall provide the Notice to those members of the Settlement Class as presently constituted by publication in the Wilson County Citizen. Additionally, the Defendant Sheriff shall post a copy of the attached Notice in each pod and visitation area in the Jail, to remain posted for no less than sixty (60)
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 Case 2:16-cv-02268-JAR-KGG Document 25-2 Filed 06/16/17 Page 1 of 3
Notice of Proposed Settlement
of Class Action Lawsuit Concerning the Postcard-Only Mail Policy at the Wilson County Correctional Facility
Ogden, et al. v. Figgins, No. 2:16-cv-02268 U.S. District Court for the District of Kansas
Purpose of This Notice
This notice gives information about the settlement of a lawsuit challenging the policy of the Wilson County Correctional Facility (“Jail”) that requires non-privileged mail, sent by or to inmates, to be written on postcards.
Background
This class action lawsuit was filed in April 2016 against the Sheriff of Wilson County, alleging that the Sheriff’s Postcard-Only Mail Policy violates the constitutional rights of inmates and their correspondents. In August 2016, the U.S. District Court for the District of Kansas certified the lawsuit as a class action.
Summary of the Proposed Settlement
The Wilson County Sheriff and Class Representatives Russell K. Ogden, Beatrice Hammer, and John Smith, acting on behalf of detainees at the Jail and their correspondents, have now reached a settlement in the case, which must be approved by the Court before it takes effect.
The proposed settlement has been reached on behalf of the following plaintiff class:
All current and future outside correspondents who wish to write letters to, and/or receive letters from, inmates in the Wilson County Correctional Facility and who are subject to or affected by the Postcard-Only Mail Policy.
The terms of the Settlement are as follows:
Inmates May Send Letters: The Sheriff will not prohibit or restrict Jail inmates from mailing non-privileged letters in envelopes to correspondents outside the Jail, except as set forth in this Notice.
Inmates May Receive Letters: The Sheriff will not prohibit or restrict Jail inmates from receiving non-privileged letters in envelopes from correspondents outside the Jail, except as set forth in this Notice.
No Volume Restrictions on Mail: The Sheriff will not restrict the number of letters or postcards that an inmate can send or receive, unless there is clear evidence that such correspondence (i) poses a safety threat to the Jail, its inmates and/or staff; or (ii) reads of conducting and/or encouraging criminal activity. Additionally, Jail inmates may not correspond with (i) other inmates within the Jail or another correctional facility; or (ii) any individual that is listed as non-contact by a court or law enforcement agency due to domestic violence, endorsed witnesses, or victims of a crime.
Content Regulation Not Covered: This settlement is not intended to restrict any authority the Defendant Sheriff may have to regulate the content of correspondence.
EXHIBIT B

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Attorneys’ Fees: The Sheriff will pay the Plaintiffs’ reasonable attorneys' fees, costs, and litigation expenses, which have been mutually agreed upon, and for which the Parties seek final approval from the Court.
No Monetary Payments to Class Members: No Class Member will receive any monetary payment as part of this Settlement. The Class Representatives, Russell K. Ogden, Beatrice Hammer, and John Smith, will not receive any monetary payment.
Right to Object
The Court has reviewed the proposed Settlement and preliminarily approved it subject to a final Fairness Hearing to consider objections and comments to the Settlement. The Court has set a Fairness Hearing for this purpose, on ________, 2017, at ___ __.m. in Courtroom _______ of the United States District Court, 500 State Avenue, Kansas City, KS 66101. If there are timely filed, written objections, the Court will consider them, and the Court will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether or not to approve the Settlement.
If you are a member of the settlement class listed above, you can comment or object to the proposed Settlement. You can tell the Court that you do not like the Settlement, or some part of it. The Court will consider your views, but may approve the Settlement anyway or modify it with approval of the parties.
To object or comment on the proposed Settlement, you must submit a written Statement of Objection or Comment that: (a) identifies the case, Ogden, et al. v. Figgins, (b) contains your name and address; (c) describes each objection or comment you have and explains the basis of each objection or comment by providing facts and law. You may submit copies of any documents that support your objections or comments with the Statement of Objection or Comment. If you or a lawyer on your behalf wishes to appear and present such objection or comment at the Fairness Hearing, you must also submit a Notice of Intention to Appear that identifies the case, contains your name and address, and explains the reason the appearance is desired.
Your Statement of Objection and Notice of Intention to Appear must be sent to the Court at the address below and postmarked or received no later than ____________, 2017.
Honorable Julie A. Robinson U.S. District Judge U.S. District Court for the District of Kansas 500 State Avenue, Suite 511 Kansas City, KS 66101
Contact Information for Class Counsel:
For Further Information: Copies of the entire proposed Settlement and other relevant filings with the Court may be obtained from: (1) The ACLU of Kansas’s website: http://www.aclukansas.org; and (2) Class Counsel, upon request, at the addresses below.

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Stephen Douglas Bonney ACLU Foundation of Kansas 6701 W. 64th St., Suite 210 Overland Park, KS 66202 dbonney@aclukansas.org Tel. (913) 490-4102 Fax: (816) 756-0136

Joshua A. Glickman Social Justice Law Collective, PL 6709 W. 119th St., #198 Overland Park, KS 66209 josh@sjlawcollective.com Tel. (913) 213-3064 Fax: (866) 893-0416