Case 1:10-cv-01840-WYD -BNB Document 1 Filed 08/03/10 USDC Colorado Page 1 of 13
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.________________
David Clay; Matthew Deherrera; Lamont Morgan; William LaFontaine; and Cynthia Shaw-Pierce, on behalf of themselves and all others similarly situated,
Plaintiffs, v. Joe Pelle, in his official capacity as Boulder County Sheriff, and Larry R. Hank, in his official capacity as administrator of the Boulder County Jail and Division Chief of the Boulder County Sheriff Office,
Defendants.
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION 1. In this action, plaintiffs challenge a new policy of the Boulder County Jail— imposed earlier this year—that forbids prisoners to write letters to their parents, children, spouses, domestic partners, fiancées, sweethearts, friends, or to anyone else in the free world who does not fall within the jail’s narrow exception to the newly-imposed ban on outgoing letters. Under the challenged policy, prisoners’ outgoing correspondence is restricted to postcards supplied by the jail. This new policy severely restricts prisoners’ ability to communicate with persons outside the jail, in violation of their rights under the First and
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Fourteenth Amendments to the United States Constitution and Article II, Sections 10 and 25 of the Colorado Constitution.
2. On behalf of a class of similarly-situated prisoners of the Boulder County Jail, the plaintiffs ask this Court to enjoin the postcard-only policy and declare that it violates their constitutional rights as well as the rights of their free-world correspondents.
JURISDICTION AND VENUE 3. This action arises under the Constitution and laws of the United States, including the First and Fourteenth Amendments and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over the claims based on Colorado law pursuant to 28 U.S.C. § 1367. 4. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202. 5. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All parties reside within the District of Colorado, and the events described in this Complaint occurred in the District of Colorado.
PARTIES 6. Plaintiff David Clay is a prisoner in the Boulder County Jail. 7. Plaintiff Matthew Deherrera is a prisoner in the Boulder County Jail. 8. Plaintiff Lamont Morgan is a prisoner in the Boulder County Jail. 9. Plaintiff William LaFontaine is a prisoner in the Boulder County Jail. 10. Plaintiff Cynthia Shaw-Pierce is a prisoner in the Boulder County Jail. 11. Defendant Joe Pelle is the Sheriff of Boulder County and head of the Boulder County Sheriff Office. He exercises overall responsibility for the policies and practices of the
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Boulder County Jail, including the policy challenged in this case. He is sued in his official capacity.
12. Defendant Larry R. Hank is an employee of the Boulder County Sheriff Office, holding the rank of Division Chief. He is the administrator and chief policymaker for the Boulder County Jail and is responsible for the formulation and operation of the policy challenged in this case. He is sued in his official capacity.
13. Deputies and their supervisors working in the Boulder County Jail are agents and employees of defendants Pelle and Hank.
14. All actions of defendants and their agents and employees at issue here are carried out under color of state law.
FACTS 15. The Boulder County Jail is located in Boulder, Colorado. It houses both convicted prisoners and pretrial detainees. Its average daily population is approximately 400. 16. Until March, 2010, prisoners in the Boulder County Jail were able to write five letters each week, with paper, envelope, and postage supplied by the jail. Each letter could contain three sheets of 8.5 x 11 inch paper written on both sides. Prisoners could seal the envelopes and deliver them to deputies for processing and mailing. The jail’s policy provided that deputies might read outgoing mail only if they had facts amounting to reasonable suspicion that a prisoner was using the mail illegally or for a purpose that threatened the safety and security of the jail, a public official, or any person. 17. Beginning in March, 2010, defendants suddenly announced that prisoners’ outgoing correspondence would henceforth be restricted to postcards supplied by the jail. Under the new policy, prisoners are allowed to send five postcards per week at jail expense. Prisoners can
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write letters that will be enclosed and mailed out in envelopes only when sending mail that fits into narrow categories that the jail defines as “legal mail” or “official mail.”
18. The challenged policy significantly limits the ability of prisoners to express themselves, allowing prisoners less then one-twelfth the amount of writing space permitted under the former policy. In addition, the postcards expose the content of the prisoners’ communications to anyone who handles or processes the postcards, both within the jail and after the postcards leave the facility. The policy either chills prisoners from writing about sensitive personal matters entirely, or it requires them to expose their communications to a host of strangers or unintended recipients—such as postal employees, an office secretary, or a child who retrieves from the mailbox a postcard that discusses sensitive details intended only for the parent’s eyes. The new policy also categorically prohibits prisoners from enclosing expressive or artistic drawings they have made, newspaper or magazine clippings, religious literature, or other writings they wish to share. Prisoners cannot use an envelope to write a letter-to-theeditor, to seek spiritual guidance from clergy, to provide information to investigative reporters, or even to submit their own writings to such periodicals as the Denver Voice or Prison Legal News.
19. The postcard-only policy also burdens the First Amendment rights of non-prisoners. As the United States Supreme Court has recognized:
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. … The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners.
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Procunier v. Martinez, 416 U.S. 396, 408-409 (1974).
Plaintiff William LaFontaine
20. Mr. LaFontaine has been an artist his entire life. Art is his passion and his form of expression.
21. Mr. LaFontaine spent some time at the Boulder County Jail before the challenged policy was put into effect. During that time, Mr. LaFontaine was able to share his drawings with persons outside the jail by mailing them out in an envelope. He was able to send his drawings to a website that posted his drawings. He was also able to enclose drawings in his letters and send them to family, friends, and others who followed his art.
22. Pursuant to the challenged policy, however, Mr. LaFontaine cannot mail out his drawings to those who wish to receive them.
23. The challenged policy has also inhibited, chilled, and interfered with Mr. LaFontaine’s communications with his wife and his mother. He has used the jail’s postcards to communicate, but he leaves out details because of the limited space and because of the lack of privacy. He wants to communicate intimate things to his wife, but he does not want to write those intimate details on a postcard for deputies and all the world to see. Because of the postcard-only policy, he finds himself censoring what he writes to his wife and his mother.
Plaintiff David Clay 24. The challenged policy has forced Mr. Clay to choose either to abandon important correspondence or divulge highly confidential information. For example, he needed to write to the optical service that had the prescription for his eyeglasses. He believed he was required to supply his Social Security number and his date of birth. Because of the policy challenged in this case, Mr. Clay put that confidential information on a postcard for all to see.
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25. Mr. Clay has a serious medical condition, and the fact that he suffers from this condition is sensitive private information. He wants to mention or discuss this information in sealed correspondence, not in postcards that can be read by anyone who sees them. For example, he wants to write to his former doctor about his medical condition. He wants to write to several organizations that may be able to help him with counseling and services both during his incarceration and after his release. He would also like to discuss his medical issues, and getting assistance with them, in correspondence with the director of an agency who helped him before he entered the Boulder County Jail. The challenged policy prevents him from sending such correspondence regarding his sensitive medical issues, and categorically prohibits him from sending medical records, news articles he reads about his medical condition, or any other documents.
26. Mr. Clay has written a piece that he wants to submit for publication to the Denver Voice, a publication concerned with the interests of homeless persons. His proposed submission will not fit onto a postcard. The jail’s postcard-only policy prevents Mr. Clay from sending his submission to the Denver Voice.
Plaintiff Matthew Deherrera 27. Mr. Deherrera spent some time in the Boulder County Jail before the challenged policy was put into effect. During that time, Mr. Deherrera wrote letters almost every day, and they were often two to three pages long. The challenged policy, however, has severely inhibited, chilled, and curtailed Mr. Deherrera’s correspondence. 28. Mr. Deherrera has a serious health condition of a private and sensitive nature. Before the challenged policy went into effect, Mr. Deherrera was able to discuss this medical
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issue in correspondence with his parents and in correspondence with a very close personal friend. Now he cannot.
29. Mr. Deherrera has several nieces and nephews who spend a large amount of time at his parents’ house. It is not unusual for one of his nieces or nephews to retrieve the mail from the family mailbox located approximately 15 feet from the house. His nieces and nephews do not know about his sensitive medical issues. Mr. Deherrera does not want to risk one of his nieces or nephews reading a postcard intended solely for his mother and father, and thus he has been unable to discuss these private medical issues in his correspondence with his parents.
30. Mr. Deherrera also has a close personal friend with whom he has discussed his sensitive medical issues. The challenged policy prevents Mr. Deherrera from discussing such personal issues on a postcard, however, because his friend’s mother is living at the same address. She does not know about Mr. Deherrera’s medical issues, and he does not want her to know. There are times when she retrieves the mail for herself and her son, so there is a very real risk that she would see the communications that he intends solely for his friend but that the challenged policy requires be exposed to whoever sees the postcard.
31. Mr. Deherrera also wants to write to his doctor about medical and mental health issues, but he does not want to discuss those sensitive subjects on a postcard.
Plaintiff Lamont Morgan 32. Lamont Morgan is extremely close to his family. He writes every day that he can. The challenged policy has inhibited, chilled, and limited the communications between Mr. Morgan and his wife, children, sister, mother-in-law and father-in-law. 33. Mr. Morgan’s wife and three of his children live together. Mr. Morgan would like to write to his wife about relationship and parenting issues. However, because his children
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often retrieve the mail from the mailbox, Mr. Morgan is worried that they will read a postcard meant only for his wife. Recently, Mr. Morgan wanted to communicate to his wife something he learned about the boyfriend of his oldest daughter. He could not do so in a postcard, however, because he did not want his younger children to see the communication.
34. The lack of space on the jail’s postcards curtails Mr. Morgan’s communications. He cannot write all that he wishes to say. He has to break up his correspondence into installments. Moreover, Mr. Morgan must now rotate through a list of family members to whom he wishes to write. The jail’s former policy would have allowed him to enclose several pages in a single envelope, each for the attention of a different family member.
35. Mr. Morgan enjoys drawing, as do many other inmates at the Boulder County Jail. He would like to send his artwork to his family, but the challenged policy prohibits him from using an envelope, so he cannot enclose any drawings. Mr. Morgan will sometimes draw on the postcard, but the drawing severely limits the already-meager space that is available for writing.
Plaintiff Cynthia Shaw-Pierce 36. It is important to Ms. Shaw-Pierce to maintain her close personal relationships while she is housed in the Boulder County Jail. The challenged policy has interfered with her ability to do so, however, by inhibiting, chilling, and limiting her written communications, particularly with a close personal friend and with her common-law husband of fifteen years. 37. Ms. Shaw-Pierce lives in a very small town in rural Colorado. The residents have to use post office boxes to receive mail. There are only two postal workers in the town, and both know Ms. Shaw-Pierce by name, and she knows them. Ms. Shaw-Pierce is afraid that what she writes on the jail’s postcards will be read by the postal workers and will soon become
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known to the entire town. Thus, when she uses the jail’s postcards to write to her common-law husband, she self-censors her communication to ensure that she writes nothing about their personal life. She reviews the postcard to make sure that she has not said anything too revealing or too emotional. Because of the postcard-only policy, she declines to write about any of her feelings toward her husband or her feelings about being incarcerated. She is forced to eliminate everything personal from her communications with her husband. If she could write letters instead, she would be more far more open, revealing and communicative.
38. The space restrictions of the postcards severely curtail Ms. Shaw-Pierce’s ability to express herself fully. She often writes out full letters first and then must choose what she must omit so that the written communication can fit into the limited space available on the jail’s postcards.
39. Ms. Shaw-Pierce has a close friend who is battling cancer. The friend was recently scheduled to undergo cancer-related surgery. Ms. Shaw-Pierce wanted to write her friend a heartfelt letter to offer comfort and strength as the date of the surgery approached. Because Ms. Shaw-Pierce can fit only about three paragraphs onto one of the jail’s postcards, she was forced to condense what she could say to her friend during this challenging time. The space restrictions of the postcard restricted Ms. Shaw-Pierce’s ability to communicate fully the support she wished to provide to her close friend.
The challenged policy’s effect on the Plaintiff class 40. In numerous ways, the challenged policy has inhibited, infringed, limited, chilled, and suppressed the constitutionally-protected communications between prisoners and their correspondents or intended correspondents.
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41. The challenged policy has forced prisoners to either abandon important correspondence or risk divulging highly confidential, sensitive information. Gay prisoners have been chilled from expressing themselves when writing to their intimate partners. Prisoners with HIV or Hepatitis C have been chilled from corresponding with medical personnel or with family members or intimate associates about their medical conditions. Prisoners who express themselves through drawings or cartoons are forbidden to enclose their art. Those who wish to enclose a religious tract, or a clipping from a newspaper or magazine, are forbidden from doing so. When children may have access to the mailbox, parents are chilled from communicating with their spouses about marital problems, child-raising issues, and other matters they do not wish to disclose to their children. Prisoners have been chilled from corresponding candidly with imams, priests, and other religious or spiritual guides.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 42. Each of the individual plaintiffs has exhausted all available administrative remedies. In addition, in response to grievances filed by prisoners, including the plaintiffs, defendants have responded that the challenged policy is “non-grieveable.” See Attachment A. The jail’s grievance procedure is therefore not an available administrative remedy for the plaintiffs’ objections to the challenged postcard-only policy.
DECLARATORY RELIEF 43. An actual and immediate controversy exists between the parties. 44. Defendants take the position that the challenged policy is valid and constitutional. Plaintiffs assert that the challenged policy violates their rights under the Colorado and United States Constitutions.
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45. In requesting declaratory relief, plaintiffs request an interpretation of the rights, legal status and relationships of the parties under the law and facts.
INJUNCTIVE RELIEF 46. The defendants have acted and are threatening to continue acting 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 the actions and threatened actions of the defendants and the existence, operation, and threat of enforcement of the challenged policy.
CLASS ACTION ALLEGATIONS 47. The individual plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 48. The individual plaintiffs seek to represent a class defined as “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcardonly policy.” 49. The proposed class is so numerous and so fluid that joinder of all members is impracticable. 50. There are questions of law and fact common to the members of the plaintiff class. 51. The claims of the named plaintiffs are typical of the claims of the members of the class. 52. The named plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Plaintiffs are represented by attorneys employed by and working in cooperation with the ACLU Foundation of Colorado and the National Prison Project of the ACLU Foundation, which have extensive experience in class action cases involving federal civil rights claims.
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53. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
FIRST CLAIM FOR RELIEF (First Amendment, Fourteenth Amendment, 42 U.S.C. § 1983) 54. The challenged policy has violated, and threatens to continue violating, the plaintiffs’ rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. 55. Wherefore, the plaintiffs are entitled to a declaratory judgment, injunctive relief, and such additional relief as the Court deems just.
SECOND CLAIM FOR RELIEF (Colorado Constitution, Article II, Sections 10 and 25) 56. The challenged policy has violated, and threatens to continue violating, the plaintiffs’ rights under the Colorado Constitution, Article II, Sections 10 and 25, which protect the right of free expression and the right to due process of law. 57. Wherefore, the plaintiffs are entitled to a declaratory judgment, injunctive relief, and such additional relief as the Court deems just.
PRAYER FOR RELIEF 58. Wherefore, plaintiffs ask that this Court:
a. Certify, pursuant to Fed. R. Civ. P. 23(a) and (b)(2), a class comprising “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcard-only policy;”
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b. Declare that the challenged postcard-only policy violates the rights of the plaintiffs and their correspondents; c. Permanently enjoin the defendants from continuing to enforce the challenged postcard-only policy, or any other policy that limits outgoing mail to postcards, thus restoring the status quo that existed before this controversy began; d. Award plaintiffs their reasonable costs and attorney fees; e. Provide whatever additional relief the Court deems just. Dated August 3, 2010
s/Mark Silverstein ______________ Mark Silverstein Legal Director American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts Attorneys for Plaintiffs
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 Case 1:10-cv-01840-WYD -BNB Document 2 Filed 08/03/10 USDC Colorado Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.________________
David Clay; Matthew Deherrera; Lamont Morgan; William LaFontaine; and Cynthia Shaw-Pierce, on behalf of themselves and all others similarly situated,
Plaintiffs, v. Joe Pelle, in his official capacity as Boulder County Sheriff, and Larry R. Hank, in his official capacity as administrator of the Boulder County Jail and Division Chief of the Boulder County Sheriff Office,
Defendants.
PLAINTIFFS’ MOTION TO CERTIFY CLASS AND APPOINT CLASS COUNSEL
D.C.Colo.LR 7.1 Conference Plaintiffs’ counsel has not consulted opposing counsel with respect to this motion because no counsel has yet appeared.
INTRODUCTION Plaintiffs are prisoners in the Boulder County Jail in Boulder, Colorado. They bring this action to challenge a new jail policy under which, with narrow exceptions, all outgoing mail sent by prisoners must be written on postcards supplied by the jail (hereinafter the “postcard-only policy”). Plaintiffs allege that this policy violates their rights under the First and Fourteenth Amendments to the United States Constitution and
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Article II, Sections 10 and 25 of the Colorado Constitution. They seek injunctive and declaratory relief only; no damages are sought.
Plaintiffs now move this Court to certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class comprising “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcard-only policy.” Plaintiffs also ask the Court to appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g). For the reasons set forth below, the motion should be granted.
ARGUMENT I. Principles applicable to class certification.
In ruling on a motion for class certification, “the district court must determine whether the four threshold requirements of Rule 23(a) are met. If the court determines that they are, it must then examine whether the action falls within one of three categories of suits set forth in Rule 23(b).” Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir. 1988) (footnote omitted).
Class certification is solely a procedural issue, and the court’s inquiry is limited to determining whether the proposed class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). In ruling on the motion for class certification, the court must take the substantive allegations of the complaint as true. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). If the court has some doubt, it should err in favor of certification, since the decision is subject to later modification. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968); see also Anderson v. Boeing Co., 222 F.R.D.
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521, 531 (N.D. Okla. 2004) (same, citing Esplin); Harrington v. City of Albuquerque, 222 F.R.D. 505, 508-09 (D.N.M. 2004) (same). II. The requirements of Rule 23(a) are satisfied.
In order for a class to be certified, the following requirements must be satisfied: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). As plaintiffs demonstrate below, all four requirements of Rule 23(a) are easily met in this case.
A. Impracticability of Joinder – Rule 23(a)(1). Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is impracticable.” There can be no doubt that the proposed class satisfies this requirement. The jail’s average daily population is about 400 prisoners, all of whom are subject to the postcard-only policy. Thus, based only on the number of class members in the jail at any one time, the requirements of Rule 23(a)(1) are satisfied. See Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978) (“Class actions have been deemed viable in instances where as few as 17 to 20 persons are identified as the class”); Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275-76 (10th Cir. 1977) (trial court erred in denying class certification on numerosity grounds where class consisted of between 41 and 46 persons). Moreover, the proposed class includes not only current prisoners, but future prisoners as well. In any given year, the jail books thousands of prisoners, some of whom stay for only a relatively short time. The fluid nature of the class, and the
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inclusion in the class of future prisoners, whose identities obviously cannot now be ascertained, makes joinder of all class members not just impracticable but literally impossible. See Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) (finding certification appropriate for class of current and future prisoners seeking injunctive relief; “[a]s members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable”). The requirements of Rule 23(a)(1) are satisfied.1
B. Commonality – Rule 23(a)(2). Rule 23(a)(2) “requires only a single question of law or fact common to the entire class.” D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010). For that reason, the commonality requirement is “easily met.” 1 Herbert B. Newberg, Newberg on Class Actions § 3.10, at 274 (4th ed. 2002) (hereinafter “Newberg”). In this case, the members of the proposed class are all housed in a single facility, and all of them are subject to defendants’ postcard-only policy. Accordingly, there are questions of fact that are common to the class, including (but not limited to) the following: 1. The scope and nature of defendants’ postcard-only policy. 2. The scope, criteria, and process for invoking the alleged “legal mail”
exception to defendants’ postcard-only policy.
1 See also Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999) (fluidity of class of criminal defendants makes certification particularly appropriate); Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985) (“the fluid composition of a prison population is particularly well-suited for class status”); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (“The fact that the [detention center] population ... is constantly revolving establishes sufficient numerosity to make joinder of the class members impracticable”); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (certifying class of prisoners “in light of the fact that the inmate population at these facilities is constantly revolving”).
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3. The scope, criteria, and process for invoking the alleged “official mail”

exception to defendants’ postcard-only policy.

Questions of law common to the class include (but are not limited to) the

following:

1.

Whether the application of the jail’s postcard-only policy violates

prisoners’ rights under the First and Fourteenth Amendments to the

United States Constitution.

2.

Whether the application of the jail’s postcard-only policy violates

prisoners’ rights under Article II, Sections 10 and 25 of the

Colorado Constitution.

While class members will inevitably be affected in different ways by the postcard-only

policy, “[f]actual differences between class members’ claims do not defeat certification

where common questions of law exist.” Stricklin, 594 F.3d at 1195.

Plaintiffs have alleged that the injuries and threatened injuries detailed in the

Complaint—both those of the named plaintiffs and those of the class—stem from a single

written policy of the defendants: the postcard-only policy. This fact alone requires a

finding of commonality. See Skinner, 209 F.R.D. at 488 (commonality requirement

satisfied where “this case revolves around a common nucleus of operative facts, namely

the policies and customs of the prison regarding inmate-on-inmate violence”).

The controlling questions of fact and law in this case are common to the entire class.

Accordingly, the commonality requirement of Rule 23(a)(2) is satisfied.

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C.

Typicality – Rule 23(a)(3).

Fed. R. Civ. P. 23(a)(3) requires that “the claims or defenses of the representative

parties [be] typical of the claims or defenses of the class.” In this case, the claims

asserted by the class representatives coincide precisely with the claims asserted on behalf

of the class.

Although the challenged policies and practices may affect different class members

in different ways, that does not defeat a finding of typicality. According to the leading

treatise on class actions:

Typicality refers to the nature of the claim or defense of the class representative and not to the specific facts from which it arose or to the relief sought. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.

1 Newberg, § 3.15, at 335. The Tenth Circuit has often reiterated the well-settled

principle that individual factual differences do not defeat typicality. “[T]ypicality exists

where, as here, all class members are at risk of being subjected to the same harmful

practices, regardless of any class member’s individual circumstances.” Stricklin, 594

F.3d at 1199; see also Adamson, 855 F.2d at 676 (“differing fact situations of class

members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class

representative and class members are based on the same legal or remedial theory”). That

is precisely the case here. All class members are at risk of being subjected – indeed, are

subjected – to defendants’ postcard-only policy. The claims of the class representatives

are based on the same legal theory as the claims of the class members – that the policy

violates the free expression guarantees of the United States and Colorado Constitutions.

The typicality requirement is met.

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D. Adequacy of Representation – Rule 23(a)(4). Adequacy of representation 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?” Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)). These criteria are clearly satisfied in this case. There is no conflict between plaintiffs or their counsel and other class members. Plaintiffs are represented by attorneys associated with the ACLU of Colorado and the National Prison Project of the ACLU Foundation, who are experienced in class action cases in general and class action challenges to prison and jail practices in particular. III. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2). Certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) when 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. Fed. R. Civ. P. 23(b)(2). “The writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits that challenge widespread rights violations of people who are individually unable to vindicate their own rights.” Baby Neal v. Casey, 43 F.3d 48, 64 (3d Cir. 1994). Recognizing these principles, the Tenth Circuit has explained that Rule 23(b)(2) is “well suited” to cases in which “plaintiffs attempt to bring suit on behalf of a shifting prison population.” Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004) (Shook I).
The Tenth Circuit recently summarized the requirements of Rule 23(b)(2):
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Rule 23(b)(2) imposes two independent, but related requirements upon those seeking class certification. First, plaintiffs must demonstrate defendants' actions or inactions are based on grounds generally applicable to all class members. Second, plaintiffs must also establish the injunctive relief they have requested is appropriate for the class as a whole. Together these requirements demand cohesiveness among class members with respect to their injuries[.]
This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate the class is sufficiently cohesive that any classwide injunctive relief satisfies Rule 65(d)'s requirement that every injunction “state its terms specifically; and describe in reasonable detail ... the act or acts restrained or required.” Second, cohesiveness also requires that class members' injuries are sufficiently similar that they can be remedied in a single injunction without differentiating between class members. Rule 23(b)(2)'s bottom line, therefore, demands at the class certification stage plaintiffs describe in reasonably particular detail the injunctive relief they seek such that the district court can at least conceive of an injunction that would satisfy Rule 65(d)'s requirements, as well as the requirements of Rule 23(b)(2).
Stricklin, 594 F.3d at 1199-1200 (internal quotation marks, citations, brackets omitted).
These requirements are amply satisfied in this case. All class members
have suffered the same injury: a limitation on their ability to send outgoing
correspondence that is restricted or prohibited by defendants’ postcard-only policy.2
Plaintiffs have described an injunction that would remedy all class members’ injuries,
and that satisfies the strictures of Rule 65(d). See Complaint, Prayer for Relief (asking
2 Of course it is not required that all class members have actually been denied the ability to send a specific piece of outgoing correspondence:
Rule 23(b)(2) does not require Named Plaintiffs to prove [defendant’s] controverted policies or practices actually harm or impose a risk of harm upon every class member at the class certification stage. … [C]ertification is appropriate even if the defendant’s action or inaction “has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory committee note (emphasis added).
Stricklin, 594 F.3d at 1201.
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that the Court “[p]ermanently enjoin the defendants from continuing to enforce the

challenged postcard-only policy, or any other policy that limits outgoing mail to

postcards, thus restoring the status quo that existed before this controversy began”). This

is not a case in which “redressing the class members’ injuries requires time-consuming

inquiry into individual circumstances or characteristics of class members,” Shook v. El Paso County, 543 F.3d 597, 604 (10th Cir. 2008) (Shook II), or in which plaintiffs request

injunctive relief “that simply prescribes ‘adequate’ or appropriate’ levels of services,” Id.

at 606. Rather, consistent with other cases in which (b)(2) certification has been

approved by the Tenth Circuit, plaintiffs here “concretely ask[] that the defendants be

ordered to cease certain behaviors.” Id. at 609. The requirements of Rule 23(b)(2) are

satisfied.

IV.

The Court should appoint the undersigned as class counsel.

Fed. R. Civ. P. 23(g)(1) provides that “unless a statute provides otherwise, a court

that certifies a class must appoint class counsel.”

Factors relevant to the appointment of class counsel are the work counsel has done in identifying or investigating potential claims in the action; counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel's knowledge of the applicable law; and the resources that counsel will commit to representing the class.

Maez v. Springs Automotive Group, LLC, ___ F.R.D. ___, 2010 WL 2543553, at *6 (D.

Colo. 2010).

All of these factors militate in favor of appointing the undersigned as class

counsel. As already noted, the undersigned counsel are associated with the ACLU of

Colorado and the ACLU National Prison Project. They are thoroughly familiar with the

applicable law and have extensive experience in handling class action, civil rights, and

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prisoners’ rights litigation. In addition, the undersigned have already done substantial work investigating and identifying the claims of the plaintiff class.
CONCLUSION For all the reasons set forth above, the motion should be granted.
Respectfully submitted,
s/Mark Silverstein ______________ Mark Silverstein Legal Director American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts
Attorneys for Plaintiffs
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 Case 1:10-cv-01840-WYD -BNB Document 32 Filed 02/17/11 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-01840-WYD-BNB
David Clay; Matthew Deherrera; Lamont Morgan; William LaFontaine; and Cynthia Shaw-Pierce, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
Joe Pelle, in his official capacity as Boulder County Sheriff, and Larry R. Hank, in his official capacity as administrator of the BCJ and Division Chief of the Boulder County Sheriff Office,
Defendants.
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Mark Silverstein, Legal Director Rebecca T. Wallace, Staff Attorney AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
rtwallace@aclu-co.org
David C. Fathi, Director NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in D.C.; practice limited to federal courts Counsel for Plaintiffs

Case 1:10-cv-01840-WYD -BNB Document 32 Filed 02/17/11 USDC Colorado Page 2 of 17
Rule 7.1 Certificate Pursuant to D.C.Colo.L.Civ.R. 7.1, Rebecca T. Wallace, counsel for Plaintiffs, conferred with Andy MacDonald, counsel for Defendants, who opposes this motion.
INTRODUCTION In this case, prisoners mount a facial challenge to the recently-implemented postcard policy of the Boulder County Jail (“Jail” or “BCJ”). Under that policy, prisoners must use postcards for their personal correspondence to friends, family, and loved ones. Prisoners cannot write personal letters unless they are lucky enough to find out about, and lucky enough to successfully apply for, the jail’s “official mail” exception to the postcard policy. The “official mail” exception is not only a standardless exception that Jail officials have unfettered discretion to grant or deny, but the Jail has also deliberately concealed the exception from the Jail population in order to deter letter-writing. In this motion, Plaintiffs seek a preliminary injunction enjoining defendants from enforcing the postcard policy, or any other policy that limits prisoners’ outgoing mail to postcards.1
STATEMENT OF FACTS I. The Jail’s Implementation of the Postcard Policy
Prior to March 8, 2010, BCJ inmates were permitted to write five letters each week, with paper, envelope, and postage supplied by the Jail. Doc. No. 15, Scheduling Order, Statement of Undisputed Facts (hereinafter “Undisputed Facts”), Fact e. Each letter could contain three sheets of 8.5 x 11 inch paper written on both sides. Undisputed Facts, Fact e. Beginning on March 8, 2010, the Jail implemented an outgoing mail policy limiting most inmate correspondence to
1 This is identical to the preliminary injunction this Court entered upon stipulation of the parties in Martinez v. Maketa, No. 10-cv-02242-WYD-KLM, Doc. No. 37, December 20, 2010.
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postcards (hereinafter “postcard policy”). Undisputed Facts, Fact e; see Ex. 1, Hank Depo., 156:12-16. Pursuant to the postcard policy, inmates can write letters that will be enclosed and mailed out in envelopes only if they ask for and are granted permission to send correspondence as “legal mail” or “official mail.” See Statement of Undisputed Facts, Fact g. According to Jail Division Chief Larry Hank, while inmates may “request permission” to send letters enclosed in envelopes to a defined set of individuals under the “official mail” exception to the postcard policy (which the Jail has rewritten no fewer than six times since March 2010), there is no guarantee that permission will be granted. Ex. 1, Hank Depo., 180:8-15.
Chief Hank has explained that the Jail staff who review inmates’ requests to send “official mail” have the “discretion” to grant or deny these requests. See, e.g., Ex. 1, Hank Depo., 123:6-22 (discretion to deny inmate’s official mail request to send a letter professing his innocence), 124:15-125:14 (discretion to deny letter to parents “informing them of life updates”), accord 137:12-138:13,142:21-143:8, 148:1-148:15 (discretion to deny other requests to send official mail). There are no written criteria to guide Jail staff in exercising this discretion, resulting in inconsistency in the Jail’s application of the “official mail” exception. Ex. 1, Hank Depo., 153:2-13.
The Jail takes pains to keep the “official mail” exception secret from prisoners in order to decrease the quantity of requests to send letters. See Ex. 1, Hank Depo., 84:13-95:22 (admitting that one of the benefits of the postcard policy is that it deters inmates from writing letters). To that end, the Jail does not inform inmates about the existence of the “official mail” exception. Ex. 1, Hank Depo., 155:1-7 (admitting that the Jail distributes no documents to inmates that mention the “official mail” exception and that the “official mail” exception is not discussed during inmate orientation); accord Ex. 2, Black Depo., 60:10-13, 64:17-20, 65:3-8. In fact, the
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only document that the Jail distributes to inmates regarding outgoing mail focuses solely on postcards. See Ex. 3, Boulder County Jail Inmate Rules (revised March 2010). As a result, many inmates only learn of the official mail exception through Plaintiffs’ counsel, rather than through the Jail. See, e.g., Ex. 4, Abeyta Decl., ¶ 7; Ex. 5, Rios Decl., ¶ 10.
II. The Jail Interests Purportedly Served by the Postcard Policy Defendants state that they implemented the postcard policy in response to an incident in
2009 involving two Jail detainees, Gino Rael and Damien Whitehead. With the apparent help of a third party outside of the Jail, these two inmates sent letters to a number of young girls in the Boulder/Longmont community (hereinafter “Rael/Whitehead Incident”).2 Ex. 1, Hank Depo., 18:18-19:5; Ex. 2, Black Depo., 154:12-19. Chief Hank confirmed that the Jail’s postcard policy serves no important governmental interest other than to prevent the type of third party mailings implicated in the Rael/Whitehead Incident. Ex. 1, Hank Depo., 67:11-68:9, 83:20-85:25.
At the time of the Rael/Whitehead Incident, the Jail allowed prisoners to seal their own personal letters before giving them to a jail staff for mailing, Ex. 2, Black Depo., 76:22-77:7, and the Jail did not require that envelopes given to prisoners be stamped with the Jail’s return address, Ex. 2, Black Depo., 69:6-19. Chief Hank and Commander Black explained that, as a result of the Jail’s outgoing mail policy at the time, inmates were easily able to send letters through intermediaries who then forwarded them on to girls in the community who were unaware that the letters they received were coming from prisoners. Ex. 1, Hank Depo., 59:16-23 (admitting that prior policy was “flawed”); Ex. 2, Black Depo., 115:14-116:1.
2 These letters (hereinafter collectively referred to as “the Rael/Whitehead incident”) contained no sexual content. Ex. 1, Hank Depo., 25:8-10. They did not violate any BCJ rules or criminal laws. Ex. 1, Hankd Depo., 23:7-13. The letters did not result in any monetary loss, physical harm, or sexual contact or abuse. Ex. 1 Hank Depo., 28:5-21.
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III. The Effects of the Postcard Policy on Prisoners and their Loved Ones Joshua Nemnich, Vincent Abeyta, George Rios, and John A. Smith were incarcerated in the Jail before the postcard policy was adopted, and each has spent additional time in the Jail after it went into effect. All have found their communications dramatically stifled by the postcard policy. Prior to the postcard policy, Mr. Nemnich wrote letters almost daily to his children, exwife, mother, and friends. Ex. 6, Nemnich Decl., ¶ 2. Once the postcard policy came into effect, he “rarely” corresponded with the outside world and did not write “anything personal on postcards” out of fear that inmates, jail officials or members of the public may read his personal thoughts and feelings. Ex. 6, Nemnich Decl., ¶ 2. When Mr. Nemnich attempted to use the “official mail” exception to send a letter to his wife, Commander Torres “angrily yelled at” him for attempting to help the ACLU in its “bullshit” lawsuit against the Jail. Ex. 6, Nemnich Decl., ¶ 5. As a result of this incident, Mr. Nemnich “feel[s] completely discouraged from attempting to communicate with [his] family by letter.” Ex. 6, Nemnich Decl., ¶ 8. Prior to the postcard policy, Mr. Abeyta sent three to five, multiple-page letters every week to his girlfriend and eight-year old son. Ex. 4, Abeyta Decl., ¶ 4. Since the postcard policy was implemented, Mr. Abeyta corresponds infrequently because the postcards provide little writing space, do not provide privacy, and do not allow him to send pictures he has drawn for his son. Ex. 4, Abeyta Decl. ¶ 5. After learning of the “official mail” exception through Plaintiffs’ counsel, Mr. Abeyta requested to send his personal letters as official mail. Ex. 4, Abeyta Decl. ¶ 8. Commander Torres denied Mr. Abeyta’s request and angrily reprimanded him, as well as other inmates who wrote similar requests. Ex. 4, Abeyta Decl., ¶ 8. Commander Torres warned that the attempt to use the official mail exception to send personal letters was not
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“Phoenix behavior.” Ex. 4, Abeyta Decl., ¶ 8.3 Mr. Abeyta understood Commander Torres’ statement to mean that further attempts to use the “official mail” exception to send personal letters could result in his transfer out of Phoenix. Ex. 4, Abeyta Decl. ¶ 9. As a result, Mr. Abeyta has not attempted to use the official mail exception to send out the numerous personal letters he wishes to send to his girlfriend and son. Ex. 4, Abeyta Decl. ¶¶ 9, 12.
Prior to the postcard policy, Mr. Smith wrote weekly, lengthy, personal letters to his wife and child, who live in Japan. Ex. 7, Smith Decl., ¶¶ 3-4. When Mr. Smith attempted to send a personal letter to his wife through the “official mail” exception, Commander Torres refused to grant the request unless Mr. Smith “disguise[d]” the letter as official mail by indicating in the letter that he needed a copy of his son’s birth certificate from his wife. Ex. 7, Smith Decl., ¶ 5. Mr. Smith followed Commander Torres’ instruction, and Commander Torres allowed the letter to go out as a “one-time exception” to the postcard policy. Ex. 7, Smith Decl., ¶ 5. Since that time, both Commander Torres and Commander Hill have told Mr. Smith that if he wants to correspond with his family in Japan, he must do so on a postcard. Ex. 7, Smith Decl., ¶ 6.
Prior to the postcard policy, Mr. Rios wrote multi-page, personal letters to his children and business partner to “keep [his] sanity” and maintain “connections with the world outside of jail.” Ex. 5, Rios Decl., ¶¶ 2, 8-9. Since the postcard policy came into effect, Mr. Rios corresponds with the outside world much less often, due to the “tiny writing space and the lack of privacy that postcards provide.” Ex. 5, Rios Decl., ¶ 5. Although Mr. Rios learned of the “official mail” exception through Plaintiffs’ counsel, he has not attempted to use the exception to send personal letters, because he witnessed Commander Torres harshly reprimand three other inmates who attempted to do so. Ex. 5, Rios Decl., ¶ 12. Mr. Rios explains:
3 Mr. Abeyta is currently incarcerated in the Phoenix Pod, a therapeutic community which is considered a privilege that can be revoked. Ex. 4, Abeyta Decl. ¶ 3.
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After that experience, I felt the Boulder County Jail had made very clear that personal letters could not qualify as “official mail.” More importantly, it was clear to me that if I asked permission to use the official mail exception to write personal letters, I would be retaliated against by the jail staff. I am currently in the Phoenix Program at Boulder County Jail, where I am receiving really great therapy and classes. I do not want to risk losing these programs by trying to do what Joshua Nemnich and Vinnie Abeyta did – asking permission to send personal letters through the official mail exception.

Ex. 5, Rios Decl., ¶13.

ARGUMENT

To obtain interim injunctive relief, the moving party must generally demonstrate “(1) a

likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm

in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor;

and (4) that the injunction is in the public interest.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). The plaintiffs here easily satisfy this test.4

I. Plaintiffs are Substantially Likely to Succeed on the Merits of Their Constitutional Claims

“Correspondence between a prisoner and an outsider implicates the guarantee of freedom

of speech under the First Amendment and a qualified liberty interest under the Fourteenth

Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996) (citing Procunier v. Martinez,

4 Three types of “disfavored” injunctions require a heightened standard: “(1) preliminary injunctions that alter the status quo, (2) mandatory preliminary injunctions, and (3) preliminary injunctions that give the movant all the relief it would be entitled to if it prevailed in a full trial.” Id. at 1208 n.3. The proposed injunction does not fall into any of the three disfavored categories. By temporarily enjoining the postcard rule, plaintiffs merely seek to return defendants’ mail policy to the “last peaceable uncontested status existing between the parties before the dispute developed.” See Schrier v. University of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005). Similarly, the proposed injunction is prohibitory rather than mandatory because enjoining the postcard policy “does not compel [the defendant] to do something it was not already doing during the last uncontested period preceding the injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). Finally, the proposed injunction would not give plaintiffs all the relief they would be entitled to if they prevail in a full trial: it merely provides temporary, not permanent, protection for their First Amendment rights. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1247-48 (10th Cir. 2001).
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416 U.S. 396 (1974)). Unlike regulations on incoming mail, which are subject to the less stringent test set forth in Turner v. Safley, 482 U.S. 78 (1987) (regulation valid if it is reasonably related to legitimate penological interests), regulations that infringe upon First Amendment rights in prisoners’ outgoing mail are subject to the stricter test set forth in Martinez. Treff, 74 F.3d at 194-95; see also Jordan v. Pugh, 504 F.Supp.2d 1109, 1120 (D. Colo. 2007) (invalidating outgoing mail regulation under Martinez test). The reason for this distinction is that “outgoing personal correspondence from prisoners . . . [does] not, by its very nature, pose a serious threat to prison order and security.” Thornburgh v. Abbott, 490 U.S. 401, 411 (1989).
Under the Martinez test, a valid limitation on a prisoner’s outgoing mail must meet two requirements. First, the “limitations on a prisoner’s First Amendment rights in his outgoing mail ‘must further an important or substantial governmental interest unrelated to the suppression of expression.’” Treff, 74 F.3d at 195 (quoting Martinez, 416 U.S. at 413). More specifically, the limitation must further “one or more of the substantial governmental interests of security, order, and rehabilitation.” Martinez, 416 U.S. at 413. Second, “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416 U.S. at 413; Treff, 74 F.3d at 195. 5
A. The Postcard Policy Substantially Burdens the First Amendment Rights of Both Prisoners and Their Free-World Correspondents
It is undisputed that the postcard policy significantly limits the amount of written correspondence prisoners can send, Ex. 1, Hank Depo., 99:8-13, and that it may chill prisoners from writing about personal subjects, Ex. 2, Black Depo., 123:22-124:1. And it is obvious that a
5 Article II, section 10 of the Colorado Constitution provides broader protection of speech than the First Amendment. See Bock v. Westminster Mall Company, 819 P.2d 55, 59-60 (Colo. 1991). Thus, while this brief discusses only plaintiffs’ claims under the First Amendment, a policy that violates the First Amendment a fortiori violates Art. II, sec. 10.
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prisoner who is allowed to send only a postcard cannot enclose drawings, newspaper clippings, religious tracts, or other expressive materials. The Supreme Court has explained that such restrictions on prisoners’ written communications infringe not only the prisoners’ First Amendment rights, but also the rights of family members and others who wish to receive the prisoners’ correspondence:
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. . . . The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Martinez, 416 U.S. at 408-09. Thus, the restrictions challenged here substantially implicate the First Amendment rights of the individual plaintiffs, all current and future jail prisoners, and all persons in the outside world who wish to read what the prisoners would like to communicate.
B. The Postcard Policy is Neither Necessary Nor Essential to Advance Any Important or Substantial Governmental Interest
In this case, Defendants identify only one interest that purportedly justifies the postcard policy: preventing the kind of third-party mailings involved in the Rael/Whitehead Incident. Ex. 1, Hank Depo., 67:11-68:9, 83:20-85:25. Plaintiffs agree that preventing such misuse of the mail is an important governmental interest. See Martinez, 416 U.S. at 413. However, restricting outgoing prisoner mail to postcards instead of letters is neither necessary nor essential to serve that interest.
As a threshold matter, it is important to note that until 2010, the Jail freely allowed prisoners to send personal mail in envelopes. Indeed, until 2010, no jail in Colorado limited prisoners’ outgoing mail to postcards, and no other Colorado jail currently does so. Ex. 8,
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Martin Decl., ¶ 16. Neither the Colorado Department of Corrections nor the Federal Bureau of Prisons limits outgoing mail to postcards. Ex. 8, Martin Decl., ¶ 15. The federal “supermax” prison in Florence, Colorado, which confines prisoners with the highest security classifications in the United States, does not limit outgoing mail to postcards. Ex. 8, Martin Decl., ¶ 15. Thus, while all these jails and prisons presumably share the defendants’ interest in preventing inappropriate use of outgoing mail, not one of them resorts to the Jail’s drastic “solution.”
These facts alone argue powerfully against a finding that the postcard policy is “necessary or essential” to protect the defendants’ asserted interest. See Martinez, 416 U.S. at 414 n. 14 (“While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction”); Ex. 2, Black Depo., 161:12-15 (BCJ does not face any special security concerns related to outgoing mail that other jails of similar size do not face); Ex. 1, Hank Depo., 86:11-14 (same).6
Steve J. Martin is an expert with over 38 years of experience in correctional administration, including substantial experience in implementation and management of correspondence rules and regulations in jails and prisons. See Ex. 8, Martin Decl., ¶¶ 2-4. After reviewing voluminous materials in this case, he concludes that the postcard policy is neither necessary nor essential to further the Jail’s interests:
6 Not surprisingly, the postcard policy has not halted inappropriate use of outgoing mail by jail detainees; at least one detainee was able to send numerous postcards to his former domestic partner, in violation of a protective order. See Ex. 9, Grimaldo Police Reports, p. 6. Indeed, Commander Black is aware of no evidence that inmate misconduct related to the use of outgoing mail has decreased since implementation of the postcard policy, Black Depo., 161:3-7, and Chief Hank concedes that if Rael and Whitehead were currently in the Jail, the postcard policy would not prevent them from writing to young girls, Hank Depo., 54:7-12. Thus, even if defendants were to assert a broader interest in preventing inappropriate use of outgoing mail, these admissions make clear that the postcard policy is not “necessary or essential”—or even effective – to advance that interest.
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The BCJ policy that limits outgoing, non-legal mail to 5.5" x 8.5" postcards is not necessary or essential to further any legitimate interests in security or order. Such a policy unnecessarily limits inmate opportunities to engage in lawful and routinely accepted correspondence practices. Moreover, such a policy is not necessary or essential to address the correspondence issues evident in the Rael/Whitehead incident….
Ex. 8, Martin Decl., ¶ 14.
Indeed, defendants admit that the following alternatives to the postcard policy would
have addressed the concerns raised by the Rael/Whitehead incident: (1) pre-stamping envelopes
given to detainees with BCJ’s return address, Ex. 2, Black Depo., 115:14-21; (2) watermarking
the writing paper given to detainees, Ex. 1, Hank Depo., 57:25-58:6; and (3) hand-searching
outgoing mail, Ex. 1, Hank Depo., 64:21-65:4. However, defendants never even considered
these or any other alternatives to the postcard policy. Black Depo, 158:1-10. Asked why the
Jail did not consider watermarking as an alternative, defendant Hank replied, “I believe this
policy is constitutional. I’m satisfied with this policy.” Ex. 1, Hank Depo., 58:10-11, 94:10-12
(“You’ve talked about other policies that you believe are alternatives. I agree that they’re
alternatives. This is the one I prefer”).7
7 Other less restrictive alternatives also exist. It is settled law that jail officials may inspect outgoing letters to determine whether they “fall[] into a category which poses a threat, including escape plans, plans related to ongoing criminal activity, and threats of blackmail or extortion.” Beville v. Ednie, 74 F.3d 210, 213-14 (10th Cir. 1996) (internal citations and quotations omitted). They may also require that outgoing envelopes be left unsealed to facilitate this inspection. See Stow v. Grimaldi, 993 F.2d 1002, 1004 (1st Cir. 1993). Thus, defendants here can inspect all outgoing letters; outgoing letters sent by high-risk prisoners; outgoing letters they believe may pose a security risk; or a random sample of outgoing letters. Defendants have not explained – and they will not be able to demonstrate with evidence – why these alternatives do not fully satisfy security needs. See Beerheide v. Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002) (even under the more deferential Turner test, “[i]n order to warrant deference, prison officials must present credible evidence to support their stated penological goals”) (emphasis in original). See also Johnson v. Smith, 2011 WL 344085 (N.D. Ga., Feb. 1, 2011), at *5 (prisoner’s challenge to jail policy limiting outgoing mail to postcards states First Amendment claim; “Plaintiff may argue that Jail officials could address their concerns by the less restrictive measure of requiring that general outgoing mail be placed in unsealed envelopes . . . instead of altogether limiting the type and size of the medium used for such mail”).
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C. Defendant’s Secret “Official Mail” Exception to the Postcard Policy Does Not Cure its Deficiencies
Defendants may contend that their addition of an “official mail” exception to the postcard policy cures its constitutional deficiencies. This claim fails for four independent reasons.
First, the very existence of the “official mail” exception is concealed from BCJ detainees. See pp. 2-3, supra. As Judge Krieger cogently explained in Jordan v. Pugh, 504 F. Supp. 2d 1109, 1117-18 & n.23 (D. Colo. 2007), such a secret exception cannot undo or counteract the chilling effect of the policy that is actually publicized and communicated to the inmate population. In Jordan, the prisoner plaintiff challenged a regulation that was described as the “Byline Regulation.” The court properly analyzed it as chilling the expression not only of the plaintiff, but also of numerous other prisoners who were not before the court. Defendants asked that the court consider the challenged regulation in light of two additional documents they created in response to the lawsuit: the “ADX Institution Supplement” and “the Kenney Memorandum.” In reasoning that clearly applies to this case, the court explained that neither document fundamentally alters “the chilling effect of the Byline Regulation upon an inmate’s freedom of expression of ideas to news media.” 504 F. Supp. 2d at 1118. The court explained:
The Institution Supplement and the Kenney Memorandum were adopted in response to this lawsuit. They do not, and cannot, change or replace the unequivocal language of the Byline Regulation. They can be withdrawn or further revised at any time. In addition, neither the Institution Supplement nor the Kenney Memorandum have been published to any inmate other than [the plaintiff]. Id. at 1118. The same considerations apply in this case. It is in response to this controversy and this litigation that Defendants have repeatedly reformulated the “official mail” exception, without informing the prisoners of the changes. This secret exception does not change the “unequivocal language” of the document actually distributed to prisoners, which notes only that
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prisoners are provided postcards on which to send correspondence. See Ex. 3. The secret exception can be withdrawn or further revised at any time. And finally, the secret exception has not been distributed or publicized to the prisoner population. Accordingly, this Court cannot accept defendants’ invitation to regard their secret “official mail” exception as somehow reducing or eliminating the chilling effect of the restrictive postcard policy that has been announced to the prisoners.
Second, even for those prisoners who manage to learn of the secret “official mail” exception, the procedural hurdles to seeking permission to send “official mail” ensure that few prisoners will do so. Under the “official mail” exception, a detainee is required to first write the entire letter he wishes to send and give it to a supervisor before he will know whether his request for an envelope will be granted. Ex. 1, Hank Depo., 77:6-12, 180:8-15. Few detainees will go to the trouble to hand-write a five-page letter if there is a substantial risk they will be denied permission to mail it.
Third, in his deposition, Chief Hank repeatedly stated that BCJ staff have broad “discretion” to deny requests to send letters as official mail. See Ex. 1, Hank Depo., 123:6-22, 124:15-125:14, 137:12-138:13,142:21-143:8, 148:1-148:15. Yet, the “official mail” exception contains no written criteria to guide Jail staff in exercising their discretion to approve or deny these requests. Ex. 1, Hank Depo., 153:2-13. This lack of written criteria allows Jail staff to engage in the standardless exercise of unfettered discretion that has been repeatedly struck down on First Amendment grounds. In Martinez itself, the Supreme Court invalidated the outgoing prisoner mail regulations at issue there, finding that their vague nature “fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for mail censorship.” 416 U.S. at 415. Similarly, in Cofone v. Manson, 409 F. Supp. 1033 (D. Conn.
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1976), the court relied on Martinez to invalidate a mail rule that allowed rejection of publications that “obstruct rehabilitative objectives,” holding that “the first amendment will not allow a catchall regulation which permits the exercise of unbridled discretion.” Id. at 1041.
It should come as no surprise that the exercise of this unbridled discretion by Jail staff to grant or deny “official mail” request has resulted in arbitrary and inexplicable denials of permission to send “official mail.” See, e.g., Exs. 4-7, Inmate Decls.; see also Ex. 1, Hank Depo., 153:2-13 (admitting that failures in training and supervision as well as lack of written criteria have resulted in inconsistent application of the Jail’s “official mail” exception).
Finally, Chief Hank’s testimony makes clear that, notwithstanding the existence of the “official mail” exception, the postcard policy continues to result in censorship of core First Amendment-protected speech. Chief Hank confirmed that Jail staff were acting consistently with Jail policy when denying multiple “official mail” requests based on the content of the prisoners’ proposed letters:
Q: So is it fair to say that pursuant to Boulder County Sheriff’s Office official policy, Commander Torres had the discretion to deny an inmate’s official mail request to send a letter professing his innocence? A: Yes, he has that discretion. Ex. 1, Hank Depo., p. 123; see also id. at 123:6-22, 124:15-125:14, 137:12-138:13,142:21-143:8, 148:1-148:15. For all of these reasons, plaintiffs are substantially likely to succeed on the merits of their First Amendment claims. II. Plaintiffs Will Suffer Irreparable Injury if the Preliminary Injunction is Denied “When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Howard v. United States, 864 F. Supp. 1019, 1028 (D. Colo. 1994). More specifically, “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Pacific Frontier v.
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Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005) ((quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (holding that even a “minimal restriction” on the manner in which dancers may convey their artistic message constitutes irreparable injury). Accordingly, when government action threatens First Amendment rights, as in this case, there is a presumption of sufficient irreparable injury to warrant a preliminary injunction. Cmty. Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981). III. The Balance of Equities Tips Sharply in Plaintiffs’ Favor
In this case, the balance of equities clearly favors the plaintiffs. The postcard policy heavily burdens the First Amendment rights of both prisoners and their free-world correspondents – a burden that constitutes irreparable injury as a matter of law. By contrast, the defendants will suffer no significant harm if the policy is temporarily enjoined. The preliminary injunction would merely bar the Jail from restricting outgoing prisoner mail to postcards; the Jail would remain free to implement any or all of the less restrictive alternatives defendants concede would address their security concerns. See p. 10, supra. Accordingly, the balance of equities tips sharply in plaintiffs’ favor. See American Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (“the threatened injury to Plaintiffs' constitutionally protected speech outweighs whatever damage the preliminary injunction may cause Defendants' inability to enforce what appears to be an unconstitutional statute”). IV. The Injunction is in the Public Interest
“[A]s far as the public interest is concerned, it is axiomatic that the preservation of First Amendment rights serves everyone’s best interest.” Local Org. Comm., Denver Chap., Million Man March v. Cook, 922 F. Supp. 1494, 1501 (D. Colo. 1996); accord Elam Constr. v. Reg. Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997) (“The public interest . . . favors plaintiffs'
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assertion of their First Amendment rights”); Johnson, 194 F.3d at 1163 (“the preliminary injunction will not be adverse to the public interest as it will protect the free expression” of Internet users). The injunction plaintiffs seek would serve the public interest while leaving Jail officials fully capable of addressing legitimate security concerns. V. No Security Should Be Required
Fed. R. Civ. P. 65(c) provides that a preliminary injunction may issue “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.” However, “trial courts have wide discretion under Rule 65(c) in determining whether to require security,” RoDa Drilling Co., 552 F.3d at 1215 (internal quotations omitted), and may decline to require security in appropriate cases. See, e.g., Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003) (no bond necessary where there was no showing of harm from injunction); Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (finding no bond necessary where plaintiff had strong likelihood of success on merits). This is a case in which plaintiffs have a strong likelihood of success on the merits, and defendants will suffer no harm from the injunction. Accordingly, no security should be required.
CONCLUSION For the foregoing reasons, the motion for preliminary injunction should be granted. The Court should enjoin the defendants from continuing to enforce the challenged postcard policy, or any other policy that limits outgoing mail to postcards, thus restoring the status quo that existed before this controversy began.
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Respectfully submitted, February 17, 2011.
s/Mark Silverstein___________________ Mark Silverstein Rebecca T. Wallace American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on February 17, 2011 I electronically filed the foregoing PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following address:
Andrew Ross Macdonald Assistant County Attorney BOULDER COUNTY ATTORNEY’S OFFICE PO Box 471 Boulder, CO 80306 Ph: (303) 441-3190 Fax: (303) 441-4794 amacdonald@bouldercounty.org
s/Debra Woods__________
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 Clay v. Pelle, Not Reported in F.Supp.2d (2011)

2011 WL 843920 Only the Westlaw citation is currently available.
United States District Court, D. Colorado.
David CLAY; Matthew DeHerrera; Lamont Morgan; William LaFontaine; and Cynthia Shaw–Pierce, on behalf of themselves and all
others similarly situated, Plaintiff, v.
Joe PELLE, in his official capacity as Boulder County Sheriff; and Larry R. Hank, in his official capacity as administrator of the Boulder County
Jail and Division Chief of the Boulder County Sheriff Office, Defendants.
Civil Action No. 10–cv–01840–WYD–BNB. | March 8, 2011.
Attorneys and Law Firms
David Cyrus Fathi, American Civil Liberties Union, Washington, DC, Mark Silverstein, Rebecca Teitelbaum Wallace, American Civil Liberties Union, Denver, CO, for Plaintiff.
Andrew Ross McDonald, Boulder County Attorney’s Office, Boulder, CO, for Defendants.
Opinion
ORDER
WILEY Y. DANIEL, Chief Judge.
*1 THIS MATTER came before the Court for a hearing on Wednesday, January 26, 2011, on Plaintiffs’ Motion to Certify Class and Appoint Class Counsel [ECF No. 2], filed August 3, 2010. The Court, having reviewed Plaintiffs’ Motion, Defendants’ Response, Plaintiffs’ Reply, and the relevant case law, and having heard counsel’s argument at the hearing, grants Plaintiffs Motion for Class Certification for the reasons set forth herein.
I. BACKGROUND This action is brought by prisoners in the Boulder County Jail, in Boulder, Colorado on behalf of themselves and a

putative class of other inmates at the Boulder County Jail. Plaintiffs and the putative class challenge a new jail policy under which certain outgoing mail sent by prisoners must be written on postcards supplied by the jail. Plaintiffs allege this policy violates their rights under the First and Fourteenth Amendments of the United States Constitution, as well as Article II, Sections 10 and 25 of the Colorado Constitution. They seek injunctive and declaratory relief.
Plaintiffs seek to certify a class defined as “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcard-only policy.” Plaintiffs ask the Court to appoint Mark Silverstein, the Legal Director of the ACLU and David C. Fathi, the director of the National Prison Project of the ACLU Foundation as class counsel pursuant to Fed.R.Civ.P. 23(g).
Defendants argue that Plaintiffs’ Complaint seeks relief that would benefit all inmates, and therefore class certification is not necessary because the relief sought will have the same effect whether the class is certified or not. Accordingly, Defendants argue that the Complaint bars the need for class certification. In the alternative, Defendants argue that Plaintiffs cannot satisfy the requirements of Fed.R.Civ.P. 23.
II. ANALYSIS Fed.R.Civ.P. 23(a) governs class certification. A district court has broad discretion in determining whether a suit should proceed as a class action. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir.1982), cert. denied, 460 U.S. 1069 (1983). In ruling on Plaintiffs’ motion for class certification under Rule 23, my inquiry turns on whether the requirements of Rule 23 have been satisfied. A district court “may not evaluate the strength of a cause of action at the class certification stage” but it must determine “without passing judgment on whether plaintiffs will prevail on the merits” whether plaintiff has satisfied the provisions of Rule 23. Shook v. Bd. of County Comm’rs, 543 F.3d 597, 603 (10th Cir.2008) (Shook II ). Although “no impermeable wall exists between the merits of a case and a district court’s decision whether to certify a class,” the merits of the case “may not serve as the focal point” of a class certification analysis. Vallario v. Vandehey, 554 F.3d 1259, 1266 (10th Cir.2009) (internal quotations omitted). Furthermore, “at the class certification stage a district court must generally accept the substantive, non-conclusory allegations of the complaint as true.” Vallario v. Vandehey, 554 F.3d 1259, 1265 (10th
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Clay v. Pelle, Not Reported in F.Supp.2d (2011)
Cir.2009)(citing Shook v. El Paso County, 386 F.3d 963, 968 (10th Cir.2004) (Shook I ); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n. 7 (10th Cir.1999)). Finally, in deciding whether certification is appropriate, doubts should be resolved in favor of certification. See Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir.1988) (“if there is error to be made, let it be in favor and not against the maintenance of a class action”), cert. denied, 394 U.S. 928 (1969)).
A. The Suit is Brought by Members of the Class *2 Before I analyze the Rule 23(a) requirements, I must first determine whether the suit has been brought by one or more members of the class. See Paton v. N.M. Highlands Univ., 275 F.3d 1274, 1278 (10th Cir.2002). Here, the suit has been brought by five representative Plaintiffs who are members of the putative class. Each representative Plaintiff is—or was at the time that Plaintiffs filed the Motion for Class Certification—an inmate at the Boulder County Jail. Each of the Plaintiffs was subjected to the policy now challenged through this lawsuit.
B. The Requirements of Rule 23(a) are Met A class may be certified only if all four of the following prerequisites are met:
(1) Numerosity: “the class is so numerous that joinder of all members is impracticable”;
(2) Commonality: “there are questions of law or fact that are common to the class”;
(3) Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class”; and
(4) Adequacy of representation: “the representative parties will fairly and adequately represent the interests of the class.”
The party seeking to certify a class bears the “strict” burden of proving that the requirements of Rule 23 have been met. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir.2006). I am required to engage in a “rigorous analysis” into whether the requirements of Rule 23 are satisfied. Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982). If I determine the Rule 23(a) requirements are met, I must also decide whether the action falls within one of the three categories set forth in Rule 23(b). Trevizo v. Adams, 455 F.3d 1155, 1166–62 (10th Cir.2006); Shook

v. El Paso County, 386 F.3d 963, 968 (10th Cir.2004).
1. Numerosity The burden is upon the plaintiff seeking to represent a class to establish that the class is so numerous as to make joinder impracticable. Peterson v. Oklahoma City Housing Authority, 545 F.2d 1270, 1273 (10th Cir.1976); Trevizo, 455 F.3d at 1162. There is “no set formula to determine if the class is so numerous that it should be so certified.” Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir.1978). Because this is a fact-specific inquiry, the district court has wide discretion in making this determination. Johnson by Johnson v. Thompson, 971 F.2d 1487, 1498 (10th Cir.1992); Trevizo, 455 F.3d at 1162.
Plaintiffs argue that this requirement is met because the jail’s average population is 400 prisoners, all of whom are subject to the challenged postcard policy. The named class also includes future prisoners as well—thus increasing the total number of class members. Plaintiffs assert that the given the daily changes in the number of prisoners at the jail, joinder of all class members is not just impracticable, but actually impossible.
The Defendants concede that joinder of “all inmates” is not practicable. They note their belief that the ACLU sent letters to every inmate in the Boulder County Jail, seeking plaintiffs for the lawsuit. They further note that Plaintiffs’ motion is silent as to this point, but they make no legal argument regarding this issue.
*3 I find that Plaintiffs have satisfied the numerosity requirement, given the number of prisoners in the Boulder County Jail, each of whom is subject to the challenged policy. Joinder of all prisoners subject to the challenged policy would be impracticable. Judicial economy favors one class action suit.
2. Commonality Commonality for purposes of Rule 23(a) requires only a single issue common to the class. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir.1999). Further, “ ‘[t]hat the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.’ “ Id. (quotations omitted). The commonality requirement “is satisfied when the legal question linking the class members is substantially related to the resolution of the litigation.” Realmonte v. Reeves, 169 F.3d 1280, 1285 (10th Cir.1999).
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Clay v. Pelle, Not Reported in F.Supp.2d (2011)
Plaintiffs contend that there are numerous questions of fact common to the class, including the scope and nature of the challenged post-card policy, the scope, criteria, and process of invoking the a “legal mail” exception to the policy; and the scope, criteria, and process for invoking the an “official mail” exception to the policy. Pls.’ Mot. to Certify Class 5, ECF No. 2. Plaintiffs likewise contend there are common issues of law, including whether the challenged policy violates prisoners rights under the United States Constitution and the Colorado Constitution. Id.
Defendant’s respond that the commonality of Plaintiffs claims concern the constitutionality of the Jail’s policies, but that there is no need to certify a class challenging a policy as unconstitutional on its face. Defendants further contend that “privacy interests” of Defendants may be violated if representative parties or proposed counsel gain access to copies of their outgoing mail. Defendants cite no authority for this proposition and ineffectively link this argument to the commonality requirement.
I find that Defendant’s arguments are without merit, and that the Plaintiffs have satisfied the commonality requirement of Rule 23(a). Common factual and legal questions are apparent—including whether the challenged postcard policy is constitutional.
3. Typicality Fed. R. Civ. Pro. 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims of defenses of the class.” “Typicality insures that the class representative’s claims resemble the class’s claims to an extent that adequate representation can be expected.” In Re Intelcom Group, Inc. v. Securities Litig., 169 F.R.D. 142, 149 (D.Colo.1996). “The rationale behind the requirement that the class representative’s claims be typical of the class claims is recognition that a plaintiff with claims typical of the class will, in pursuing and defending his own self interest in the litigation, be concomitantly advancing or defending the interests of the class.” Dubin v. Miller, 132 F.R.D. 269, 274 (D.Colo.1990) (citing 1 H. Newberg, Newberg on Class Actions § 3.22, at 199 (2d ed.1985)).
*4 Plaintiffs contend that this requirement is met because “the claims asserted by the class coincide precisely with the claims asserted on behalf of the class.” Pls.’ Mot. 6. Plaintiffs further contend that although the challenged postcard policy may affect different class members in different ways, that does not defeat a finding of typicality. Defendants make no specific arguments regarding the

typicality requirement.
I find that Plaintiffs have met the burden of showing that their claims are typical of those of the class. Plaintiffs’ claims, like those of the entire class, all turn on the constitutionality of the challenged post-card policy. Each claim therefore is based on the same legal theories and involves the same injury suffered by the class. Moreover, “differing fact situations of class members do not defeat typicality under Rule 23(a)(3) so long as the claims of the class representative and class members are based on the same legal or remedial theory.” Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988).
4. Adequacy of representation Rule 23(a)(4) requires that the representative parties “fairly and adequately protect the interests of the class.” The Tenth Circuit holds that adequacy of representation depends on resolution of two questions. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir.2002). These questions are: “ ‘(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?’ “ Id. at 1187–88 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998)).
Plaintiffs contend that there are no conflicts between the named Plaintiffs, their counsel, or the other class members. Furthermore, Plaintiffs contend that they are represented by attorneys associated with the ACLU who are experienced in class actions and have specific experience with class action challenges to prison and jail practices. Defendants make no specific arguments regarding the Rule 23(a)(4) requirements.
Based on the briefing and arguments made during the hearing, I find that Plaintiffs have not been shown to have any conflicts of interest with other class members. I also find that Plaintiffs’ counsel have not been shown to have any conflicts of interest. Finally, I find that Plaintiffs have met their burden of showing that counsel will prosecute the action vigorously on behalf of the class.
C. The Class Satisfies the Requirements of Rule 23(b)(2) In addition to satisfying the requirements of Rule 23(a), the Plaintiffs’ claims must also be maintainable as a class action under one of the three categories of suits described in Rule 23(b). Weinman v. Fid. Capital Appreciation Fund (In re Integra Realty Res., Inc.), 354 F.3d 1246,
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Clay v. Pelle, Not Reported in F.Supp.2d (2011)
1262 (10th Cir.2004). Plaintiffs assert that class certification is proper under Fed.R.Civ.P. 23(b)(2). Under Rule 23(b)(2), a class action may be maintained 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.” Fed.R.Civ.P. 23(b)(2).
*5 The Tenth Circuit has held that Rule 23(b)(2) “imposes two independent, but related requirements” on those seeking class certification. Shook II, 543 F.3d at 604; DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1199 (10th Cir.2010). “First, plaintiffs must demonstrate defendants’ actions or inactions are ‘based on grounds generally applicable to all class members.’ Second, plaintiffs must also establish the injunctive relief they have requested is ‘appropriate for the class as a whole.’ “ Stricklin, 594 F.3d at 1199 (quoting Shook II, 543 F.3d at 604).
The court in Stricklin went further to state that the two independent requirements demand cohesiveness among class members with respect to their injuries and that the requirement of cohesiveness likewise has two elements:
First, plaintiffs must illustrate the class is “sufficiently cohesive that any classwide injunctive relief” satisfies Rule 65(d)’s requirement that every injunction “ ‘state its terms specifically; and describe in reasonable detail ... the act or acts restrained or required.’ “ Id. (quoting Fed.R.Civ.P. 65(d)). Second, cohesiveness also requires that class members’ injuries are “sufficiently similar” that they can be remedied in a single injunction without differentiating between class members. Id. Rule 23(b)(2)’s bottom line, therefore, demands at the class certification stage plaintiffs describe in reasonably particular detail the injunctive relief they seek “such that the district court can at least ‘conceive of an injunction that would satisfy [Rule 65(d)’s] requirements,’ as well as the requirements of Rule 23(b)(2).” Id. at 605 (quoting Monreal v. Potter, 367 F.3d 1224, 1236 (10th Cir.2004)).
DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1199 –1200 (10th Cir.2010).
Plaintiffs assert that the requirements of Rule 23(b)(2) are satisfied because all class members have suffered the same injury and because their Complaint seeks an injunction that would remedy all class members’ injuries and satisfy Rule 65(d). Defendants respond that Plaintiffs cannot satisfy Rule 23(b)(2) because they cannot show that Defendants “acted or refused to act” on grounds generally applicable to the proposed class “such that final

injunctive relief is appropriate as to the class a whole.” Def.s’ Objection to Pl.s’ Mot. 7. Defendants further contend that the injunctive relief requested is “too vague” and that it is “inappropriate and unreasonable” given the reasons the Jail implemented the post-card policy. Defendants also contend that the injunctive relief requested would violate the separation of powers doctrine.
I find that the Plaintiffs have satisfied the requirements of Rule 23(b)(2). Here, the Plaintiffs have alleged that all class members have suffered the same constitutional injury based on the challenged postcard policy. The injunction sought by Plaintiffs in this case is much more specific than the type of injunctions which the Tenth Circuit has held to be too vague. In Vallario, the Tenth Circuit noted that injunctions requiring a defendant to “obey the law” for example, are generally too vague to satisfy Rule 65. Vallario, 554 F.3d at 1268. Here, however, Plaintiffs seek to “permanently enjoin the defendants from continuing to enforce the challenged postcard-only policy, or any other policy that limits outgoing mail to postcards, thus restoring the status quo that existed before this controversy began.” Compl. ¶ 58(c). Plaintiffs therefore seek to enjoin a specific policy currently being enforced by the Defendants.
*6 Furthermore, the injunctive relief sought by the Plaintiffs applies to the proposed class as a whole and does not require differentiation between class members. I do not agree with Defendants that it is necessary to inquire into each class member’s individual circumstances or characteristics given that all class members are subject to the challenged policy. Even through some claims may differ somewhat factually, this is not a bar to certification given the common policy applied to all prisoners. See Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988) (“That the claims of individual class members may differ factually should not preclude certification under Rule 23(b)(2) of a claim seeking the application of a common policy.”).
Unlike the injunction sought by the plaintiffs in Shook II, which the Tenth Circuit agreed failed to satisfy Rule 23(b)(2), the injunction sought in this case would apply to all prisoners alike because it would prohibit prison officials from limiting prisoners outgoing mail to postcards. In Shook II, the court recognized that the relief plaintiffs sought “would require the district court to craft an injunction that distinguishes-based on individual characteristics and circumstancesbetween how prison officials may treat class members, rather than prescribing a standard of conduct applicable to all class members.” Shook II, 543 F.3d at 605. For example, the court in Shook II noted that plaintiffs there sought an injunction
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Clay v. Pelle, Not Reported in F.Supp.2d (2011)
compelling defendants to “cease using restraints, pepper spray, and electroshock weapons (‘tasers’) against prisoners exhibiting signs of mental illness in circumstances that post a substantial risk of serious harm to such prisoners.” Id. This request for relief necessarily asked the court to take into account “the specific circumstances of individual inmates’ plights.” Unlike in Shook, the Plaintiffs here seek an order proscribing a change in policy applicable to all inmates.
Defendants also argue that the class of “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcard-only policy” is too broad. Defendants cite Shook II in arguing that the Tenth Circuit “frowns upon” certification of a class of all “ “current and future” prisoners. The situation in this case, is however, distinguishable from the situation in Shook II. In Shook II, the plaintiffs sought, among other things, an injunction aimed at ensuring “adequate” staffing levels and medication delivery procedures for inmates. Shook II, 543 F.3d at 605. Because the proposed class included not only current, but also future inmates, enforcing an injunction aimed at “adequate” staffing levels required “a wealth of information about the class not necessary in many other Rule 23(b)(2) class actions.” Id. Here, certifying a broad class including current and future inmates does not pose analogous challenges.
*7 Finally, whether the injunction would “unfairly constrain the ability of jail officials ... to respond to legitimate penological interests” as argued by the Defendants, requires an analysis of the merits of Plaintiffs’ claims which is unnecessary to my determination of whether the Rule 23 requirements have been met.
D. Defendants’ Further Arguments Against Certification Defendants further contend that certification is unnecessary because if the Plaintiffs prevail the benefits will inure to all prisoners. Defendants are correct that in some cases class certification is unnecessary where plaintiffs seek relief that will inure to the benefit of all the requested class members. See Kansas Health Care Ass’n, Inc. v. Kan. Dept. of Social and Rehab. Servs., 31 F.3d 1536, 1548 (10th Cir.1994) (“This court has ‘recognized the line of authority indicating that a class certification is unnecessary if all the class members will benefit from an injunction issued on behalf of the named plaintiffs.’ ”)(citing Everhart v. Bowen, 853 F.2d 1532, 1538–39 n. 6 (10th Cir.1988), rev’d on other grounds, 494 U.S. 83, 110 S.Ct. 960, 108 L .Ed.2d 72 (1990); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 1785.2 (1986 & Supp.1994)). Plaintiffs respond that certification is necessary, however, because a detainee will lose standing to seek injunctive and declaratory relief from jail conditions as soon as he or she is transferred or released from the jail. Plaintiffs argue that “given the rapid turnover in jail populations, class certification is essential if injunctive and declaratory relief is ever to be available.” Pls.’ Reply 2. They argue this is true because certification relates back to the filing of the motion, and therefore the class itself has standing to litigate the claims even if the individual claims of the named plaintiffs become moot.
I am cognizant of the Tenth Circuit’s caution against giving undue weight to a claim that Plaintiff will be unable to obtain judicial review of jail practices absent certification of their requested class. Vallario, 554 F.3d at 1269. Injunctive relief is, however, an important remedy against the alleged constitutional harm suffered. Because the practice alleged to be occurring at the Boulder County Jail continues to affect members of the putative class who have a live stake in the controversy, if a class is certified, the claims are not mooted should the named Plaintiffs be transferred or released from the jail. Whereas an individual prisoner’s claim for injunctive relief may become moot before the court can grant relief, class certification, where proper under Rule 23, “ensures the presence of a continuing class of plaintiffs with a live dispute against prison authorities.” Stewart v. Winter, 669 F.2d 328, 334 (5th Cir.1982) (citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980)). Plaintiffs seek system-wide declaratory and injunctive relief that may be unattainable once Plaintiffs are released from the Boulder County Jail. See Neiberger v. Hawkins, 208 F.R.D. 301, 318 (D.Colo.2002) (holding that class certification was appropriate where the named Plaintiffs leave the hospital whose policies were being challenged thus rendering the ordered relief unenforceable). I therefore conclude that class certification is appropriate and that the Plaintiffs have established that the requirements of Rule 23 are satisfied.
E. Appointment of Class Counsel *8 Under Rule 23(g), I must appoint class counsel when a class is certified. Factors relevant to the appointment of class counsel are the work counsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable law; and the resources that counsel will commit to representing the class. Fed.R .Civ.P. 23(g)(1)(A)(i)-(iv)).
5

Clay v. Pelle, Not Reported in F.Supp.2d (2011)
Based on the counsel’s experience in the relevant areas of law, and counsel’s conduct to date in this case, I conclude that Plaintiffs’ counsel satisfies the requirements outlined in Fed.R.Civ.P. 23(g). Plaintiffs’ counsel is amply qualified to act as counsel for the class.
III. CONCLUSION Based upon the foregoing, it is ORDERED that Plaintiffs’ Motion for Class Certification is [ECF No. 2], filed August 3, 2010, is GRANTED. The

above-captioned action is hereby certified as Class Action pursuant to Fed.R.Civ.P. 23(a) and 23(b)(2). It is
FURTHER ORDERED that the Class is defined as “all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants’ postcard-only policy.” It is
FURTHER ORDERED that David C. Fathi and Mark Silverstien shall serve as Appointed Counsel representing all Class Members.
	  

6

 
 Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 1 of 19
EXHIBIT 1

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 2 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. I O-cv-01840- WYD~BNB

David Clay; Matthew Dehcn-era;
Lamont Morgan;
Willam LaFontaine; and
Cynthia Shaw-Pierce, on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

Joe Pelle, in his official capacity as Boulder County Sheriff, and

Larr R. Hank, in his offcial capacity as administrator of
County Shel'ffOffce,

the BeJ and

Division Chief

of the Boulder

Defendants.

SETTLEMENT AND RELEASE AGREEM.ENT

This Settement Agreement is made and entered into this lLi.4day of Apl'l, 201 i between David C. Fathi and Mark Silverstein ofthe American Civil Liberties Union ("ACLU") who are Appointed Counsel representing all Class Members for the class defined as "all current

and future prisoners in the Boulder County Jail who are subjectto or

affected by the defendants'

postcard-only policy," hereinafter referred to as "Releasor" and the Boulder County Sherift~

ii hereinâfter refelTed to as "Releasee.

1

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 3 of 19

RECITALS A. WHEREAS, on August 3, 2010, Releasor fied a lawsuit designated as Civil Action Number 1 0-cv-01840- WYD-BNB in the United States District Court for the District of Colorado against Joe Pelle, in his official capacity as Boulder County Sheriff, and Larry R. Hank, in his offcial capacity as administrator of the Boulder County Jail ("Jail") and Division Chief of the Boulder County Sheriff Office. The lawsuit challenged the portion of Boulder County Jail Inmate Mail Policy Number 15-01-05 that concerned the use of postcards for outgoing non-legal

imnate maiL.
B. WHEREAS, on March 8, 2011, the Court issued an order granting plaintiffs
motion for class ~ei1ification forthe_c;i~ss_1efil1ed as "all_cur~ent and futuE~ prisoners ii~the Boulder County Jail who are subject to or affected by the defendants' postcard-only policy," and ordered that David C. Fathi and Mark Silverstein of the ACLU be Appointed Counsel representing all Class Members.
C. WHEREAS, on March 17,2011 the parties participated in a Settlement Conference

with the Honorable Magistrate Judge Boyd N. Boland. A Memorandum of

Understanding ("MOU")

was prepared to memorialize the settlement terms agreed to by the parties. A copy of

the MOU is

attached as Exhibit 1 and incorporated herein by reference.

C. NOW, THEREFORE, the parties wish to provide for the sett1ement of

all claims for

injunctive relief, declaratory relief, and attorneys' fees, pled or unpled, betweei1 the Releasor and

Rel~asee arising out of

Civil Action NO.1 0-cv-01840- WYD-BNB in the United States District Court

for the District of Colorado.

2

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 4 of 19

WARRANTIES

1. Releasor and Releasee waiTant and represent, each to the other, that they have been
fully informed and have full knowledge of the terms, conditions and effects of this Agreement.

2. Releasor and Releasee warrant and represent, each to the other, that they have, either
personally or through their attorney or attorneys, fully investigated to each party's full satisfaction all
facts surrounding the various claims, controversies, and disputes and are fully satisfied with the terms and effect of this Agreement.

3. Releasor and Releasee warrant and represent, each to the other, that no promise or

inducement has been offered or made except as herein set forth, and that this Agreement is executed

without rel-i-a-n-c-e--upon any statement or representation by any other party or her agent.

4. Releasor and Releasee warrant and represent, each to the other, that they have the

power and authority to execute this Agreement.

AGREEMENT

1. Undertaking of

Releasee.

A. Releasee Boulder County Sheriff, through the. Board of County

Commissioners ofthe County of

Boulder wil tender to Releasor a Boulder County warrant

in the total amount of

Sixty-five Thousand Dollars ($65,000.00), within fourteen (14) days of

the Court's entry of the Stipulated Judgment and Order incorporating the tenns of this

Agreement as an Order of the Court pursuant to paragraph 5 of this Agreement. Releasee

shall tender this amount as payment for Plaintiffs' counsel's costs and attorneys' fees

incurred in this matter.

3

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 5 of 19

B. On April 8,2011, Releasee changed the Jail's Inmate
regarding outgoing non-legal mail to reflect that:

Mail Policy

i. Postcards shall be utilized by inmates, if at all, on a voluntary basis;

and

11. Inmates shall be allowed to write and send personal

letters on paper

designated by the Jail for such use and in envelopes supplied by the Jail without

having to first ask, and/or receive, permission to do so.

C. Releasee agrees that henceforth it wil maintain an inmate outgoing mail
policy that:

1. Does not require inmates to use postcards for their outgoing mail;
and
11. Allows inmates to write persol1alletters on paper designated by the Jail for such use and in envelopes supplied by the Jail without having to first ask,
and/or receive, permission to do so. D. Releasee further agrees that for two years after the execution ofthe MOU, it

wil notify Releasor of any changes to the Releasee's outgoing inmate

mail policy as it relates

to inmates' abilities to send personal

letters on paper and in envelopes.

2. This agreement does not affect Releasee's previously established power under the

law to inspect outgoing mail and to read outgoing non-legal maiL.
3. Release. In consideration for the relief provided for herein, Releasor fully releases, acquits and forever discharges Releasee, and its employees, attorneys, predecessors, successors and assigns, to whom and for whose conduct the parties hereby released may be liable, including, but not
4

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 6 of 19

limited to the Boulder County Sheriff, Division Chief LaITY R. Hank, and the Board of County Commissioners of the County of Boulder, from any and all claims for injunctive and declaratory relief, including class action claims, as well as claims for attorneys' fees, against the Defendants arising out of Civil Action NO.1 0-cv-01840- WYD-BNB. This -release is made by Releasor on behalf of the class certified and defined as "all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants' postcard-only policy."

4. Attorneys' Fees and Costs. Other than as provided for herein, each party shall bear

his/her/its own costs, attorneys' fees, disbursements and expenses of any kind incun-ed in connection

with this matter.

5. Compromise of

Disputed Claims. It is understood and agreed that the acceptance of

the consideration herein mentioned is in full accord and satisfaction of a disputed claim and that the

payment of said sums, the entering into this Agreement or anything recited herein shall

not constitute

an acknowledgment of any liability whatsoever on the part of

the parties or persons released. This

Agreement does not include any finding of a constitutional or statutory violation.

6. Enforcement. Upon execution ofthis Agreement, the parties wil file a Joint Motion

for Entry of Stipulated Judgment and Order, incorporating the terms ofthis Agreement as an Order

of the Court. The Court shall have the power to enforce this Agreement upon appropriate motion.

The prevailing party in any such enforcement action, in addition to any other legal or equitable

remedies, shall be entit1ed to recover attorneys' fees and costs in accordance with the standards set

forth in 42 U.S.C. § 1988 as determined by the Court.

7. Prison Litigation Reform Act Compliance. The Parties stipulate that the
Sett1ement Agreement complies with the Prison Litigation Reform Act, and its terms are
5

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 7 of 19

narrowly drawn, extend no further than necessary to correct the alleged violation of

Plaintiffs'

constitutional rights, are the least intrusive means necessary to correct the alleged violation of

Plaintiffs' constitutional rights, and that the Proposed Order to be submitted to the District Court

pursuant to paragraph 6 of this Settlement Agreement wil include these findings.

8. Compliance with Federal Rules of

Civil Procedure 23(e) and (h)

A. Upon execution of

this agreement, the Parties agree to joint1y request that

the Court set a date for a hearing, pursuant to Rule 23(e)(2), to consider whether the

terms of this Settlement Agreement constitute a fair, reasonable, and adequate resolution

of Plaintiffs' claims in the Action. The Parties agree that the terms ofthis Settlement

Agreement provide all the relief requested in the Complaint. Accordingly, the Parties

agree that the proposed resolution is not only fair to the absent members of

the class, it is

also reasonable and adequate.

B. The Parties agree that, pending the Court's approval and pursuant to Rule

23(e), Releasee shall post notice to class members of

the proposed resolution ofthis case

(attached hereto as Exhibit 2) in a noticeable location in each of

the pods within the

Boulder County Jail (and individually deliver the notice to inmates who are in

segregation, or otherwise do not have ready access to the location in which the 110tice is

posted), within forty-eight (48) hours after the Court sets a date for a hearing, pursuant to

Rule 23(e), to determine whether the resolution is fair, reasonablc, and adequate. The

notice shall remain posted until the date the Court establishes for the Rule 23 ( e) fairness

hearing. The Parties agree that posting the notice in such a manner is a reasonable way to

notify

all class members who would be bound by the proposed resolution of
6

this case.

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 8 of 19

C. The Parties agree that, upon execution of
Federal Rule of Civil Procedure 23(h):

this Agreement, and pursuant to

1. Releasor shall file a motion for reasonable costs and attorneys fees in
this Action in the amount of $65,000;

ii. Releasee agrees that this motion wil be unopposed; and

iii. Releasee does not contest that an award to Plaintiffs' counsel of
$65,000.00 in attorneys' fees and costs is reasonable in this case.

9. DismissaL. Within fifteen (15) days of Court's Entry of Stipulated Judgment and

Order, incorporating the terms ofthis Agreement as an Order ofthe Court, the parties wil fie a
Joint Motion to Dismiss With Prejudice Civil Action NO.1 0-cv-01840- WYD-BNB in the United States District Court for the District of Colorado. The parties agree that the motion shall ask the Court to retain jurisdiction over this Agreement, and that the proposed order of dismissal submitted to the Court shall include such a retention of jurisdiction.
10. Entire Agreement. This Agreement contains the entire contract, understanding and agreement between the Parties, is a full, final and complete compromise settement of all disputed claims, and supersedes any prior understandings or agreements, all of which are by the execution hereof rendered null and void. The parties expressly warrant and represent that they have carefully read this Agreement, reviewed it with counsel as to its meaning and effect, understand that this is a full, complete and final settement of all claims and causes of action arising from Civil Action No.

1 O-cv-O 1840- WYD- BNB, and is forever binding, and have entered into the Agreement as their own
free and voluntary act.

7

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 9 of 19

t 11. CQll1toij;JITJ.Q. Thì8 Settlement Agreemeint may be executed in seveml
i
countcivarts, each of which shall be tin original as against any pnrty who signed tti and all of :.!, 'i
which will constiute one and the same document,

:1

" IN WITNESS 'Y HEREOF, the undersigned have executed this Settement Agl'eement this

i

:1

12__ day of ,.....i3¡.tLl""' 2011. .1

1

i CERTIFY THAT I HAVE FULLY READ AND UNDEI~STAND THE FOREGOING

i

SETTLEjvfÈf!.. T AND RELEASE AGREEMENT and 1 hereby affix my hand ali4~l this J!lY~ day

of ---Llff.j~ 2011 as my Ij"ee and voluntii act. Ç\. \\ "" l' ~~_

APPOINTED COUNSEL REPRESENTING ~ "'t Ll\o' i C-
ALL CLASS MEMBERS,

__~",....(!JJ~~~i._.,~.~.......",.,..",.,,,
Mark Silverstcln, Legal Director
AMERICAN CIVIL LIlERTIES UNION FOUNDAT.ION OF COLORADO
400 Corona Street
Denver, Colm'ado 80218
Telephone: (303) 777.5482
F x: (303) 777..1773
Ei ai. milver2@att. e.

W\\( c.1)Wìrr)'iS~ìOvi 6y;Q(Î~S
(5 - êJ& ' dÔ i ~.-

DEBRA L WOODS Notary Public
State of Colorado
- -

.. -
.
~ ~
~

__ _______"________~___..~!!r/ i (
David C. Fnthl, Direotor*
NATroNAL JJRISON PROJECT OFTI-IE ACLU FOUNDA'llON, INC, 915 lSthStreet NW, 7(hFloor
Washington, D.C. 20005 (202) 548.6603
Emaìl: dfathi@npP'.8c!u.org
*Not ac!mtled in DC,. practice llmited to
federal courts.

8

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 10 of 19
I CERTIFY THAT I HAVE FULLY READ AND UNDERSTAND THE FOREG~G SETTLEMENT AND RELEASE AGREEMENT and I hereby affx my hand and seal this ~ day
of Aø ( ,2011 as my free and voluntary act.
BOULDER COUNTY SHERIFF
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
Subscrbed and sworn to before me this j thday of Å.- ~ \ , 20 i 1 by 10e Pelle
Boulder County Sheriff. . ~
.M~li~~l
9

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 11 of 19

APPROVED AS TO FORM:

BOULDER COUNTY ATTORNEY
BY:~W~y¿~
Rebecca T. Wallace, Staff Attorney Andrew R. Macdonald, Esq. AMERICAN CIVIL LIBERTIES UNION Assistant County Attorney
FOUNDATION OF COLORADO P.O. Box 471
400 Corona Street Boulder, CO 80306 Denver, Colorado 80218 Telephone: (303) 441-3 i 90
Telephone: (303) 777-5482 Fax: (303) 441-4794
Fax: (303) 777-1773 Email: amacdonald@bouldercounty.org
Email: rtwaJJttçe.@aclu-co.org

ATTORNEY FOR RELEASEE

ATTORNEY FOR RELEASOR

10

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 12 of 19
EXHIBIT 1

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 13 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. lO-cv-01840-WYD-BNB

David Clay; Matthew Deherrera;
Lamont Morgan;
Wiliam LaFontaine; and
Cynthia Shaw-Pierce, on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

Joe Pelle, in his official capacity as Boulder County Sheriff, and

Larry R. Hank, in his offcial capacity as administrator of

the BCJ and Division Chief of

the Boulder County Sheriff Office,

Defendants.

MEMORANDUM OF UNDERSTANDING

This Memorandum of

Dnderstanding ("MOD") memorializes the terms of

the

Parties' agreement to resolve this matter.

1. The settlement is a compromise of all disputed claims. Defendants admit no

liabilty in this matter.

2. Within twenty-one (21) days of

the execution ofthis MOD, Defendants shall

change the outgoing mail policy of

the Boulder County Jail so that:

a. Postcards shall be utilzed by inmates, if at all, on a voluntary basis; and

b. Inmates shall be allowed to write and send personal letters on paper
designated by the jail for such use and in envelopes supplied by the jail without having to first ask, and/or receive, permission to do so.

1

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 14 of 19

c. This agreement does not affect Defendants' previously established right to

inspect outgoing mail and to read outgoing non-legal maiL.

3. Defendants agree that henceforth the Boulder County Jail wil maintain an inmate

outgoing mail policy that:

a. Does not require inmates to use postcards for their outgoing mail; and

b. Allows inmates to write personal

letters on paper designated by the jail for

such use and in envelopes supplied by the jail without having to first ask,

and/or receive, permission to do so.

c. This agreement does not affect Defendants' previously established right to

inspect outgoing mail and to read outgoing non-legal maiL.

4. For two years after the execution of

this MOD, Defendants shall notify Plaintiffs

of any changes to the Boulder County Jail's outgoing inmate

mail policy as it

relates to inmates' abilties to send personal

letters on paper and in envelopes.

5. Defendants shall pay Plaintiffs' reasonable costs and attorneys' fees in this matter

in the total amount of sixty five thousand and no dollars ($65,000), subject to final

approval by the Board of

County Commissioners of

Boulder County ("Board"),

which shall vote on this settlement by Tuesday, April 12, 2011.

6. Counsel for Defendants', Andrew Macdonald, warrants that:

a. He has authority from the Board to settle this matter for a total of$65,000

in costs and attorneys' fees;

b. He has a good faith belief

based on facts known to him that the Board wil

approve the terms of this settlement, including an award of costs and

attorneys' fees in the total amount $65,000; and

2

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 15 of 19

c. He and Defendants wil urge the Board to approve all of the terms of this

sett1ement, including an award of costs and attorneys' fees in the total

amount $65,000.

7. The Parties agree to draft and execute a Settlement Agreement ("Settlement

Agreement") containing, inter alia, the following language:

a. This Settlement Agreement does not constitute an admission of liability against the interest of any party. It is a compromise of a disputed claim for the sole purpose of avoiding the expense, hardship and uncertainty of litigation.

b. This Settlement Agreement wil
or statutory violation.

not include any finding of a constitutional

c. Plaintiffs agree to waive and release all claims for injunctive and
declaratory relief, including class action claims, against the Defendants arising out of Civil Action No. 10-cv-01840-WYD-BNB . Plaintiffs wil dismiss their case with prejudice, each party to pay its own fees and costs, except as provided in this Settlement Agreement.

d. The parties stipulate that the terms ofthe Settlement Agreement are

narrowly drawn, extend no further than necessary to correct the alleged

violation of Plaintiffs' constitutional rights, are the least intrusive means

necessary to correct the alleged violation of

Plaintiffs' constitutional

rights, and that the Proposed Order submitted to the District Court

pursuant to (paragraph titled "Enforcement," below) of

this Settlement

Agreement wil include these findings.

e. Enforcement

i. Upon execution ofthis Agreement, the parties wil fie a Joint

Motion for Entry of Stipulated Judgment and Order, incorporating

the terms of

this Settlement Agreement as an Order of

the Court.

ii. The Court shall have the power to enforce this Settlement
Agreement upon appropriate motion, after due notice and hearing. The prevailng party in any such enforcement action, in addition to all other legal or equitable remedies, shall be entitled to recover attorneys' fees and costs in accordance with the standards set forth in 42 U.S.C. § 1988 as determined by the Court.

3

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 16 of 19

8. Pursuant to ~7(e), as soon as practicably possible after execution of

the Settlement

Agreement, the Parties agree to fie with the Court a Joint Motion for Entry of

Stipulated Judgment and Order, requesting that the Court incorporate the terms of

this Settlement Agreement as an Order of

the Court.

Executed by the undersigned attorneys this 18th day of March, 2011.

APPROVED:
~lJ~
Mark Silverstein, Legal Director Rebecca T. Wallace, Staff Attorney
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO
400 Corona Street Denver, Colorado 80i18
Telephone: (303) 777-5482
Fax: (303) 777-1773
Email: msilver2@att.net rtwallace@aclu-co.org
David C. Fathi, Director*
NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC.
915 15th Street NW, ih Floor Washington, D.C. 20005 (202) 548-6603 Email: dtàthi@npp-aclu.org

âkre~~.
Andrew Ross Macdonald Assistant County Attorney
BOULDER COUNTY ATTORNEY'S OFFICE PO Box 471
Boulder, CO 80306 Ph: (303) 441-3190 Fax: (303) 441-4794 amacdonald(¿i1bouldercounty .org
Counsel for Defendants

Counsel for Plaintif
* Not admitted in DC; practice limited to
federal courts.
Attorneys for Plaintiffs

4

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 17 of 19
EXHIBIT 2

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 18 of 19

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-01840-WYD-BNB

David Clay; Matthew Deherrera; Lamoiit Morgan; William LaFontaine; and
Cynthia Shaw-Pierce, on behalf of

themselves and all others similarly situated,

Plaintiffs,

v.

Joe Pelle, in his official capacity as Boulder County Sheriff, and
Larry R. Hank, iii his offcial capacity as administrator of the BCJ and Divisioii Chief of the
Boulder County Sheriff Office,

Defendants.

NOTICE TO BOULDER COUNTY JAIL PRISONERS

1. In March, 2010, the Boulder County Jail ("Jail") implemented a new policy that limited

most outgoing inmate

mail to postcards.

2. On August 3, 20 i 0, five inmates filed a legal challenge to that policy, arguing that the

policy violated inmates' First Amendment rights: Clay, et aI. v. Pelle, et aI., case number 10-cv-

01840-WYD-BNB, United States District Court, District of
fied a motion to certify the case as a class action.

Colorado. The inmate-plaintiffs also

3. The lawsuit seeks a declaratory judgment and an injunction ordering the Jail to stop

what the lawsuit called the "postcard-only" policy. The lawsuit does not seek monetary damages on

behalf of any prisoners.

4. On March 8, 2011, the Court issued an order granting plaintiffs' motion for class certification for the class defined as "all current and future prisoners in the Boulder County Jail who

Case 1:10-cv-01840-WYD -BNB Document 48-1 Filed 04/27/11 USDC Colorado Page 19 of 19

are subject to or affected by the defendaiits' postcard-only policy." The Court appointed attorneys

workiiig for the American Civil Liberties Union ("ACLU") of Colorado and the ACLU National

Prison Project to serve as counsel for the class.

5. On April 8,2011, the Jail rescinded the postcard-only policy and allowed inmates to

write and send personal

letters on paper designated by the Jail for such use and in envelopes

supplied by the Jail without having to first ask, and/or receive, permission to do so.

6. The parties have now agreed to a proposed settlement that wil resolve all issues in the

case. Pursuant to Fed. R. Civ. P. 23(e), this notice is provided to class members to advise them of

the tenus of the proposed settlement, which are summarized as follows:

a. The Jail wil henceforth maintain an inmate outgoing mail policy that: (1) does

not require inmates to use postcards for their outgoing mail; and (2) allows

inmates to write personal

letters on paper designated by the Jail for such use and

in envelopes supplied by the Jail without having to first ask, and/or receive,

permission to do so.

b. This settlement does not affect the Jail's previously established power under the

law to inspect outgoing mail and to read outgoing non-legal maiL.

c. Counsel for Plaintiffs are entitled to an award of

reasonable attorney's fees and

costs to be paid by the Defendant. The parties have agreed that $65,000

represents a reasonable amount.

7. The Court has set a date of for a hearing to determine whether the
settlement is fair, reasonable, and adequate. Any class member who objects to the proposed settlement may submit an objection. Objections must be postmarked no later than , 2011 and
should be sent to:

 
 Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 1 of 7
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:10−cv−01840−WYD−BNB

Clay et al v. Pelle et al Assigned to: Chief Judge Wiley Y. Daniel Referred to: Magistrate Judge Boyd N. Boland Cause: 42:1983 Prisoner Civil Rights Plaintiff David Clay
Plaintiff Matthew Deherrera
Plaintiff Lamont Morgan

Date Filed: 08/03/2010 Date Terminated: 08/25/2011 Jury Demand: None Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question
represented by David Cyrus Fathi American Civil Liberties Union−DC 915 15th Street, N.W. 7th Floor Washington, DC 20005 202−548−6603 Fax: 202−393−4931 Email: dfathi@npp−aclu.org ATTORNEY TO BE NOTICED
Mark Silverstein American Civil Liberties Union−Denver 400 Corona Street Denver, CO 80218 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace American Civil Liberties Union−Denver P.O. Box 18986 400 Corona Street Denver, CO 80218−0986 303−777−5482 Fax: 303−777−1773 Email: rtwallace@aclu−co.org ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 2 of 7

Plaintiff William LaFontaine
Plaintiff Cynthia Shaw−Pierce on behalf of themselves and all others similarly situated

Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Joe Pelle in his official capacity as Boulder County Sheriff
Defendant Larry R. Hank in his official capacity as administrator of the Boulder County Jail and Division Chief of the Boulder County Sheriff Office

represented by Andrew Ross Macdonald Boulder County Attorney's Office P.O. Box 471 1325 Pearl Street 5th floor Boulder, CO 80306 303−441−3190 Fax: 303−441−4794 Email: amacdonald@bouldercounty.org TERMINATED: 04/26/2011
David Evan Hughes Boulder County Attorney's Office P.O. Box 471 1325 Pearl Street 5th floor Boulder, CO 80306 303−441−3190 Fax: 303−441−4794 Email: dhughes@bouldercounty.org ATTORNEY TO BE NOTICED
represented by Andrew Ross Macdonald (See above for address) TERMINATED: 04/26/2011
David Evan Hughes

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 3 of 7
(See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/03/2010
08/03/2010 08/06/2010 08/10/2010 08/10/2010 08/11/2010 08/25/2010 08/25/2010 09/08/2010
09/08/2010
09/08/2010 09/14/2010 09/15/2010 09/21/2010
09/21/2010

# Docket Text
1 Class Action COMPLAINT for Injunctive and Declaratory Relief against Larry R. Hank and Joe Pelle (Filing fee $ 350, Receipt Number 30103) Summons Issued, filed by Matthew Deherrera, David Clay, Lamont Morgan, Cynthia Shaw−Pierce, and William LaFontaine. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Receipt)(lyg, ) (Entered: 08/03/2010)
2 Plaintiff's MOTION to Certify Class and Appoint Class Counsel, by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan and Cynthia Shaw−Pierce. (lyg, ) (Entered: 08/03/2010)
3 ORDER REFERRING CASE to Magistrate Judge Boyd N. Boland, by Chief Judge Wiley Y. Daniel on 8/6/10. (lyg, ) (Entered: 08/09/2010)
4 SUMMONS Returned Executed by All Plaintiffs. Larry R. Hank served on 8/4/2010, answer due 8/25/2010. (Silverstein, Mark) (Entered: 08/10/2010)
5 SUMMONS Returned Executed by All Plaintiffs. Joe Pelle served on 8/4/2010, answer due 8/25/2010. (Silverstein, Mark) (Entered: 08/10/2010)
6 ORDER Scheduling Conference set for 9/21/2010 08:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 8/11/10. (gmssl, ) (Entered: 08/11/2010)
7 Defendants' ANSWER to 1 Complaint, by Larry R. Hank, Joe Pelle. (Attachments: # 1 Exhibit A)(Macdonald, Andrew) (Entered: 08/25/2010)
8 RESPONSE to 2 MOTION to Certify Class filed by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Exhibit A)(Macdonald, Andrew) (Entered: 08/25/2010)
9 Unopposed MOTION for Extension of Time to File Response/Reply as to 2 MOTION to Certify Class by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Proposed Order (PDF Only))(Silverstein, Mark) (Entered: 09/08/2010)
10 ORDER granting 9 Motion for Extension of Time to File Response/Reply. Plaintiffs shall filed their Reply in Support of Motion for ClassCertification on or before September 15, 2010, by Chief Judge Wiley Y. Daniel on 09/08/2010.TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydlc3, ) (Entered: 09/08/2010)
11 NOTICE of Entry of Appearance of Rebecca Wallace by Mark Silverstein on behalf of David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce (Silverstein, Mark) (Entered: 09/08/2010)
12 Proposed Scheduling Order by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Wallace, Rebecca) (Entered: 09/14/2010)
13 REPLY to Response to 2 MOTION to Certify Class filed by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Silverstein, Mark) (Entered: 09/15/2010)
14 Minute Entry for proceedings held before Magistrate Judge Boyd N. Boland: Scheduling Conference held on 9/21/2010. Discovery due by 3/21/2011. Dispositive Motions due by 4/21/2011. Proposed Pretrial Order due by 6/16/2011. Final Pretrial Conference set for 6/23/2011 09:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland. (Court Reporter FTR−G.Mattei) (bnbcd, ) (Entered: 09/21/2010)
15 SCHEDULING ORDER: by Magistrate Judge Boyd N. Boland on 9/21/10. (bnbcd, ) (Entered: 09/21/2010)

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 4 of 7

09/21/2010 10/01/2010 10/12/2010 10/12/2010 10/13/2010 10/15/2010
10/18/2010 10/18/2010 10/18/2010 10/18/2010 10/18/2010 10/20/2010 01/19/2011 01/19/2011
01/20/2011

16 MINUTE ORDER : Proposed Pretrial Order due by 6/16/2011. Final Pretrial Conference set for 6/23/2011 09:30 AM in Courtroom A 401 before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 9/21/10.(bnbcd, ) (Entered: 09/21/2010)
17 Unopposed MOTION for Protective Order by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Exhibit A, # 2 Proposed Order (PDF Only))(Macdonald, Andrew) (Entered: 10/01/2010)
18 MINUTE ORDER Setting Hearing on 2 MOTION to Certify Class and Appoint Class Counsel : Motion Hearing set for 12/1/2010 09:00 AM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. by Chief Judge Wiley Y. Daniel on 10/12/2010. (erv, ) (Entered: 10/12/2010)
19 MEMORANDUM regarding 17 Unopposed MOTION for Protective Order filed by Larry R. Hank, Joe Pelle. Motion referred to Magistrate Judge Boyd N. Boland by Chief Judge Wiley Y. Daniel on 10/12/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 10/12/2010)
20 PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 10/13/10. (bnbcd, ) (Entered: 10/13/2010)
21 MOTION FOR ORDER to SUPPLEMENT/AMENDMENT to 7 Answer to Complaint by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Proposed Document , # 2 Exhibit B , # 3 Proposed Order (PDF Only) (Macdonald, Andrew) (Modified on 10/18/2010 Edited Title to reflect this is a MOTION)(erv, ). (Entered: 10/15/2010)
22 Docket Annotation re: 21 MOTION for Order to Supplement 7 Answer. The Title has Been Changed to reflect that this is a MOTION to Supplement the Answer. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (erv, ) (Entered: 10/18/2010)
23 MEMORANDUM regarding 21 MOTION for Order to filed by Larry R. Hank, Joe Pelle. Motion referred to Magistrate Judge Boyd N. Boland by Chief Judge Wiley Y. Daniel on 10/18/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 10/18/2010)
24 MINUTE ORDER granting 21 Defendant's Motion for Order to File Supplemental Answer by Magistrate Judge Boyd N. Boland on 10/18/2010.(erv, ) (Entered: 10/18/2010)
25 SUPPLEMENTAL ANSWER to 7 Answer to Complaint by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Exhibit B)(erv, ) (Entered: 10/18/2010)
26 Unopposed MOTION to Reset Hearing Date by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Proposed Order (PDF Only))(Wallace, Rebecca) (Entered: 10/18/2010)
27 ORDER granting 26 Plaintiffs' Unopposed Motion to Reset Hearing Date on Plaintiffs' Motion to Certify Class and Appoint Counsel. Motion Hearing Reset for 1/26/2011 02:00 PM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. by Chief Judge Wiley Y. Daniel on 10/20/2010.(erv, ) (Entered: 10/21/2010)
28 Unopposed MOTION for Extension of Time to Designation Experts by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Proposed Order (PDF Only))(Wallace, Rebecca) (Entered: 01/19/2011)
29 MEMORANDUM regarding 28 Unopposed MOTION for Extension of Time to Designation Experts filed by Matthew Deherrera, David Clay, Cynthia Shaw−Pierce, William LaFontaine, Lamont Morgan. Motion referred to Magistrate Judge Boyd N. Boland by Chief Judge Wiley Y. Daniel on 1/19/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 01/19/2011)
30 MINUTE ORDER :granting 28 Plaintiffs Unopposed Motion for Extension of Expert Designation Deadline. The parties shall designate all experts and provide opposing counsel with all information specified in Fed. R. Civ. P. 26(a)(2) on or

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 5 of 7

01/26/2011 02/17/2011 02/24/2011 02/25/2011
02/25/2011 02/25/2011
03/08/2011
03/10/2011 03/10/2011 03/17/2011 03/21/2011 03/23/2011
04/25/2011 04/26/2011

before February 17, 2011, by Magistrate Judge Boyd N. Boland on 1/20/11.(bnbcd, ) (Entered: 01/20/2011)
31 Minute Entry for Motion Hearing proceedings held on 1/26/2011 before Chief Judge Wiley Y. Daniel. Taking under advisement 2 Motion to Certify Class. (Court Reporter: Terri Lindblom) (wydcd, rrk) (Entered: 01/27/2011)
32 MOTION for Preliminary Injunction by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit)(Silverstein, Mark) (Entered: 02/17/2011)
33 Unopposed MOTION for Leave to Take the Deposition of Boulder County Jail Inmates by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Proposed Order (PDF Only) Order Granting Leave to Take Depositions)(Macdonald, Andrew) (Entered: 02/24/2011)
34 MEMORANDUM regarding 33 Unopposed MOTION for Leave to Take the Deposition of Boulder County Jail Inmates filed by Larry R. Hank, Joe Pelle. Motion referred to Magistrate Judge Boyd N. Boland by Chief Judge Wiley Y. Daniel on 2/25/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 02/25/2011)
35 Minute ORDER granting 33 Motion for Leave to Take the Deposition of Boulder County Jail Inmates by Magistrate Judge Boyd N. Boland on 02/25/11.(jjh, ) (Entered: 02/25/2011)
36 Minute ORDER Setting Hearing on MOTION for Preliminary Injunction 32 for 4/15/2011 02:30 PM before Chief Judge Wiley Y. Daniel. Defendants shall file a response to Plaintiffs Motion for a Preliminary Injunction 32 by 03/10/11. Any reply by Plaintiffs shall be filed by 03/24/11 by Chief Judge Wiley Y. Daniel on 02/25/11. (jjh, ) (Entered: 02/25/2011)
37 ORDER. Order granting 2 Motion for Class Certification. ORDERED that the Class is defined as all current and future prisoners in the Boulder County Jail who are subject to or affected by the defendants postcard−only policy. ORDERED that David C. Fathi and Mark Silverstien shall serve as Appointed Counsel representing all Class Members by Chief Judge Wiley Y. Daniel on 03/08/11.(jjh, ) Modified on 3/8/2011 to correct spelling error (jjh, ). (Entered: 03/08/2011)
38 MINUTE ORDER : Settlement Conference set for 3/17/2011 01:45 PM before Magistrate Judge Boyd N. Boland, by Magistrate Judge Boyd N. Boland on 3/10/11. (bnbcd, ) (Entered: 03/10/2011)
39 RESPONSE to 32 MOTION for Preliminary Injunction filed by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Macdonald, Andrew) (Entered: 03/10/2011)
40 Minute Entry for proceedings held before Magistrate Judge Boyd N. Boland: Settlement Conference held on 3/17/2011. No settlement was reached as to any claims. (bnbcd, ) (Entered: 03/18/2011)
41 MOTION for Order to Hold Case In Abeyance Pending Finalization of Settlement by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Exhibit, # 2 Proposed Order (PDF Only))(Silverstein, Mark) (Entered: 03/21/2011)
42 Minute ORDER granting 41 Joint Motion to Hold Case in Abeyance Pending Finalization of Settlement 41 , is GRANTED. The Preliminary Injunction Hearing set for Friday, April 15, 2011 is VACATED and all other deadlines and proceedings are stayed pending finalization of the settlement by Chief Judge Wiley Y. Daniel on 03/23/11.(jjh, ) (Entered: 03/23/2011)
43 NOTICE of Entry of Appearance by David Evan Hughes on behalf of Larry R. Hank, Joe Pelle (Hughes, David) (Entered: 04/25/2011)
44 MOTION to Withdraw as Attorney by Defendants Larry R. Hank, Joe Pelle. (Attachments: # 1 Proposed Order (PDF Only))(Macdonald, Andrew) (Entered:

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 6 of 7

04/26/2011 04/26/2011 04/27/2011 04/27/2011 04/27/2011 04/28/2011 05/04/2011 05/19/2011 06/10/2011
06/20/2011 06/20/2011 06/20/2011 08/17/2011
08/18/2011

04/26/2011)
45 MEMORANDUM regarding 44 MOTION to Withdraw as Attorney filed by Larry R. Hank, Joe Pelle. Motion referred to Magistrate Judge Boyd N. Boland by Chief Judge Wiley Y. Daniel on 4/26/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 04/26/2011)
46 MINUTE ORDER granting 44 Motion to Withdraw as Attorney. Attorney Andrew Ross Macdonald terminated by Magistrate Judge Boyd N. Boland on 04/26/11.(jjh, ) (Entered: 04/26/2011)
47 Unopposed MOTION for Attorney Fees by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Wallace, Rebecca) (Entered: 04/27/2011)
48 SETTLEMENT AGREEMENT by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wallace, Rebecca) (Entered: 04/27/2011)
49 Joint MOTION for Order to Approve Settlement by Plaintiffs David Clay, Matthew Deherrera, William LaFontaine, Lamont Morgan, Cynthia Shaw−Pierce. (Attachments: # 1 Exhibit, # 2 Exhibit)(Wallace, Rebecca) (Entered: 04/27/2011)
50 Docket Annotation re: 48 Settlement Agreement was refiled at 49 Joint MOTION for Order to Approve Settlement using the correct motion event. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (mnf, ) (Entered: 04/28/2011)
51 MINUTE ORDER. Plaintiffs shall submit a proposed form of order re: 49 Joint MOTION for Order to Approve Settlement and the 47 Unopposed MOTION for Attorney Fees by 5/9/11, by Chief Judge Wiley Y. Daniel on 5/4/11. (lsw, ) (Entered: 05/05/2011)
52 Inmate Account STATEMENT by Plaintiff David Clay. (jjh, ) (Entered: 05/19/2011)
53 ORDER. A final fairness hearing is set for 08/17/11 at 4:00 PM to determine whether the terms and conditions provided for in the settlement are fair, reasonable, and adequate to the settlement class and whether such terms should be approved by the Court, re: 49 . See Order for details by Chief Judge Wiley Y. Daniel on 06/10/11. (jjh, ) (Entered: 06/10/2011)
54 MINUTE ORDER re: 53 Order. The Pretrial Conference set for 6/23/2011 is VACATED, by Magistrate Judge Boyd N. Boland on 6/20/11. (lsw, ) (Entered: 06/20/2011)
55 MINUTE ORDER. The Pretrial Conference set for 06/23/2011 is VACATED, by Magistrate Judge Boyd N. Boland on 06/20/2011. (wjc, ) (Entered: 06/20/2011)
56 Docket Annotation re: 55 Minute Order, 54 Minute Order. Document 54 Minute Order is a duplicate filing of 55 Minute Order. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED. (wjc, ) (Entered: 06/20/2011)
58 MINUTE ENTRY for In Court Hearing proceedings held on 8/17/2011 before Chief Judge Wiley Y. Daniel. Granting 47 Plaintiffs Unopposed Motion for Attorneys Fees. Granting 49 Joint Motion for Approval of Settlement of Class Action and Entry of Stipulated Judgment and Order. (Court Reporter: Therese Lindblom) (wydcd, rrk) (Entered: 08/22/2011)
57 ORDER Granting Final Approval of Settlement of Class Action. ORDERED that plaintiffs Unopposed Motion for Attorneys Fees 47 and the Parties Joint Motion to Approve Settlement of Class Action and Entry of Stipulated Judgment and Order 49 are hereby GRANTED. ORDERED that Defendants shall pay $65,000 in attorneys' fees and costs within 14 days of this Order. ORDERED that this Court shall retain jurisdiction of this case for the purposes of enforcement of the settlement agreement by Chief Judge Wiley Y. Daniel on 08/18/11.(jjh, ) (Entered: 08/18/2011)

Case: 1:10-cv-01840-WYD-BNB As of: 04/21/2012 07:59 PM MDT 7 of 7

08/25/2011

59 FINAL JUDGMENT. ORDERED that judgment is hereby entered in favor of Plaintiffs, David Clay; Matthew DeHerrera; Lamont Morgan; William LaFontaine; and Cynthia Shaw−Pierce, on behalf of themselves and all others similarly situated, and against Defendants, Joe Pelle, in his official capacity as Boulder County Sheriff; and Larry R. Hank, in his official capacity as administrator for the Boulder County Jail and Division Chief of the Boulder County Sheriff Office, as set forth in Exhibit 1 to Plaintiffs Joint Motion for Approval of Settlement of Class Action and Entry of Stipulated Judgment and Order. Consistentwith the parties agreement and the Courts Order of August 18, 2011 Defendants shall pay $65,000.00 in attorneys fees and costs by Clerk on 08/25/11. Approved by Chief Judge Daniel(jjh, ) Modified on 8/25/2011 to correct spelling error (jjh, ). (Entered: 08/25/2011)