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1 ERNEST GALVAN – 196065

BLAKE THOMPSON – 255600

2 ROSEN BIEN GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

3 San Francisco, California 94104-1823

Telephone: (415) 433-6830

4 Facsimile: (415) 433-7104

Email: egalvan@rbgg.com

5

bthompson@rbgg.com

6 JULIA YOO – 231163 IREDALE & YOO APC
7 105 West “F” Street, 4th Floor San Diego, California 92101-6087
8 Telephone: (619) 233-1525 Facsimile: (619) 233-3221
9 Email: jyoo@iredalelaw.com

10 LANCE WEBER – Fla. Bar No. 104550*
11 SABARISH NEELAKANTA – Fla. Bar No. 26623* HUMAN RIGHTS DEFENSE CENTER
12 P.O. Box 1151 Lake Worth, Florida 33460
13 Telephone: (561) 360-2523 Facsimile: (866) 735-7136
14 Email: lweber@humanrightsdefensecenter.org sneelakanta@humanrightsdefensecenter.org
15 * Pro Hac Vice Applications To Be Filed
16 Attorneys for Plaintiff
17

18

UNITED STATES DISTRICT COURT

19

SOUTHERN DISTRICT OF CALIFORNIA

20 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
21 Plaintiff,
22 v.
23 COUNTY OF SAN DIEGO; WILLIAM D.
24 GORE, RICH MILLER, WILL BROWN, in their individual and official capacities,
25 DOES 1-10, in their individual and official capacities,
26 Defendants.
27

Case No. '14CV2417 L NLS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES JURY TRIAL DEMANDED

28

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

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1

INTRODUCTION

2

Plaintiff PRISON LEGAL NEWS (“PLN” or “Plaintiff”), a project of the

3 Human Rights Defense Center, brings this action regarding Defendants’ censorship

4 of its monthly publication and of correspondence mailed to prisoners and pre-trial

5 detainees (collectively, “inmates”) held in custody at San Diego County jails, in

6 violation of the First and Fourteenth Amendments to the United States Constitution.

7 Defendants have adopted and implemented mail policies and practices that

8 unconstitutionally restrict PLN’s correspondence to inmates to postcards only and

9 have unconstitutionally limited PLN’s ability to send books to inmates. Defendants’

10 mail policies and practices do not afford adequate notice and an opportunity to

11 challenge the censorship, in violation of PLN’s right to due process. Defendants’

12 actions violate PLN’s rights and the rights of others under the First Amendment and

13 the Due Process and Equal Protection Clauses of the Fourteenth Amendment. PLN

14 thus brings this action, pursuant to 42 U.S.C. § 1983, seeking injunctive and

15 declaratory relief, and damages to be proven at trial.

16

JURISDICTION AND VENUE

17

1. This action arises under the First and Fourteenth Amendments to the

18 United States Constitution and is brought pursuant to 42 U.S.C. § 1983. This Court

19 has both subject matter jurisdiction and diversity jurisdiction over this action under

20 28 U.S.C. §§ 1331, 1332, 1343, 2201, and 2202.

21

2. Venue is proper in the Southern District of California under 28 U.S.C.

22 § 1391(b)(2) because substantial acts and omissions giving rise to the claims

23 occurred in this District, including Defendants’ implementation of the challenged

24 mail policies and practices, and because Defendants reside in this District.

25

PARTIES

26

3. Plaintiff PRISON LEGAL NEWS is a project of the Human Rights

27 Defense Center (“HRDC”), a Washington Non-Profit Corporation. The core of

28 HRDC’s mission is public and prisoner education, advocacy, and outreach in 1
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1 support of prisoners’ rights and in furtherance of their basic human rights. PLN

2 publishes and distributes a monthly journal of corrections news and analysis, and

3 offers and sells books about the criminal justice system, legal reference books, and

4 self-help books of interest to prisoners. PLN also maintains a website

5 (www.prisonlegalnews.org) and operates an email list. PLN has a broad audience,

6 including prisoners, lawyers, courts, libraries, and members of the general public

7 throughout the country and abroad.

8

4. Defendant COUNTY OF SAN DIEGO is a municipal corporation,

9 organized and existing under the laws of the State of California. Defendant

10 COUNTY OF SAN DIEGO is, and was at all relevant times mentioned herein,

11 responsible for the actions and/or inactions and the policies, procedures, customs

12 and practices of the San Diego County Sheriff’s Department (“the Sheriff’s

13 Department” or “the Department”) and its employees and agents. The Department

14 operates seven (7) detention facilities: San Diego Central Jail, Las Colinas Detention

15 Facility, Vista Detention Facility, George Bailey Detention Facility, South Bay

16 Detention Facility, East Mesa Reentry Facility, and Facility 8 Detention Facility

17 (collectively, the “jails”), and is and was responsible for adopting and implementing

18 mail policies governing incoming mail for inmates at San Diego County jails.

19

5. Defendant WILLIAM D. GORE is the Sheriff of the COUNTY OF

20 SAN DIEGO, and has held this position since July 3, 2009. Defendant GORE is

21 employed by and is an agent of Defendant COUNTY OF SAN DIEGO and the

22 Department. He is responsible for overseeing the management and operations of the

23 jails, and for the hiring, screening, training, retention, supervision, discipline,

24 counseling, and control of the personnel of the San Diego County jails who interpret

25 and apply the mail policy for inmates. As Sheriff, Defendant GORE is a final

26 policymaker for Defendant COUNTY OF SAN DIEGO with respect to the

27 operations of the San Diego County jails, including for policies governing incoming

28 mail for inmates. He is sued in his individual and official capacities. 2
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1

6. Defendant RICH MILLER is an Assistant Sheriff of the COUNTY OF

2 SAN DIEGO, in charge of the Detention Services Bureau, and was appointed to the

3 position in 2014. He is employed by and is an agent of Defendant COUNTY OF

4 SAN DIEGO and the Sheriff’s Department. The Detention Services Bureau

5 includes all jail responsibilities related to inmate services, including but not limited

6 to reception, booking and classification, housing, and other jail services. As

7 Assistant Sheriff in charge of the Detention Services Bureau, Defendant MILLER is

8 responsible for the operation and management of the San Diego County jails and for

9 the promulgation and implementation of Detention Services Bureau policies,

10 including the inmate mail policies challenged herein. He is also responsible for the

11 hiring, screening, training, retention, supervision, discipline, counseling, and control

12 of the personnel of the San Diego County jails who interpret and apply the mail

13 policy for inmates. He is sued in his individual and official capacities.

14

7. Defendant WILL BROWN is a Commander with the Detention

15 Services Bureau for the Sheriff’s Department. He is employed by and is an agent of

16 Defendant COUNTY OF SAN DIEGO and the Sheriff’s Department. Defendant

17 BROWN is responsible for the Inmate Processing Division, Inmate Services

18 Division, Detention Training Unit, Jail Population Management Unit, Detention

19 Gangs Unit, Detention Investigations Unit, Detention Support Division, the Prisoner

20 Transportation Division and the Jail Information Management System. In these

21 capacities, Defendant BROWN is responsible for the implementation of Detention

22 Services Bureau policies at San Diego County jail facilities, including the inmate

23 mail policies challenged herein, and for the hiring, screening, training, retention,

24 supervision, discipline, counseling, and control of the personnel of the San Diego

25 County jails who interpret and apply the mail policy for inmates. He is sued in his

26 individual and official capacities.

27

8. The true names and identities of Defendants DOES 1 through 10 are

28 presently unknown to PLN. Each of Defendants DOES 1 through 10 are or were 3
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1 employed by and are or were agents of Defendant COUNTY OF SAN DIEGO and

2 the Sheriff’s Department when some or all of the challenged inmate mail policies

3 and practices were adopted and/or implemented. Each of Defendants DOES 1

4 through 10 are or were personally involved in the adoption and/or implementation of

5 the Detention Services Division’s mail policies for inmates, and/or are or were

6 responsible for the hiring, screening, training, retention, supervision, discipline,

7 counseling, and/or control of the San Diego County jails’ staff who interpret and

8 implement these inmate mail policies. They are sued in their individual and official

9 capacities. PLN will seek to amend this Complaint as soon as the true names and

10 identities of Defendants DOES 1 through 10 have been ascertained.

11

9. Each and every act and omission alleged herein of Defendants, their

12 officers, agents, servants, employees, or persons acting at their behest or direction,

13 were done and are continuing to be done under the color of state law and within the

14 scope of their official duties as employees or agents of Defendant COUNTY OF

15 SAN DIEGO and the Sheriff’s Department.

16

FACTUAL ALLEGATIONS

17

10. Plaintiff PRISON LEGAL NEWS publishes and distributes Prison

18 Legal News: Dedicated to Protecting Human Rights, a monthly journal of

19 corrections news and analysis. PLN also publishes and distributes paperback books

20 about the criminal justice system and legal issues impacting prisoners.

21

11. PLN has thousands of subscribers in the United States and abroad,

22 including prisoners, attorneys, journalists, public libraries, judges, and other

23 members of the public. PLN distributes its publication to prisoners and law

24 librarians in approximately 2,200 correctional facilities across the United States,

25 including institutions within the Federal Bureau of Prisons and all of the adult

26 prisons of the California Department of Corrections and Rehabilitation.

27

12. PLN engages in core protected speech and expressive conduct on

28 matters of public concern, such as the operations of corrections facilities, jail and 4
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1 prison conditions, prisoner health and safety, and prisoners’ rights. PLN regularly

2 receives correspondence from inmates in correctional facilities around the country,

3 including San Diego County jails, in which they ask questions and report on jail or

4 prison conditions.

5

Censorship and Lack of Due Process

6

13. Defendants have censored PLN’s monthly journal, books,

7 informational brochure packets, subscription renewal letters, and court rulings

8 mailed to inmates held in custody at San Diego County jails, by refusing to deliver

9 said items to the prisoners and, in some instances, by returning items to PLN’s

10 offices via the “Return To Sender” service of the United States Postal Service.

11 Defendants continue to censor many of the items listed above.

12

14. By returning items to sender, Defendants have censored materials

13 mailed by PLN on at least sixty-one (61) occasions from October 2012 to the

14 present, including, but not limited to, the items identified below. On information

15 and belief, Defendants have censored hundreds of other items but not returned the

16 materials to PLN.

17

Censorship of PLN’s Monthly Journal

18

15. PLN’s monthly journal, Prison Legal News, is a black and white 64-

19 page soft cover publication that contains articles on corrections news and analysis

20 about prisoner rights, court rulings, the management of prison and jail facilities, and

21 conditions of confinement.

22

16. On or about October 10, 2012, PLN mailed its September 2012 Prison

23 Legal News publication to the following two (2) prisoners at the Las Colinas

24 Detention Center, each of whom were in custody there at the time that the

25 publications were received:

26

Prisoner Name:

Facility:

Date Mailed to Prisoner:

27

Debra Jones

Lavinia Wofford

28

Las Colinas Las Colinas

October 10, 2012 October 10, 2012

5
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1

2 Defendants did not deliver the monthly journals to these inmates to whom they were

3 addressed, sending them back by return mail, and marking them with an ink stamp

4 noting: (1) “RETURN TO SENDER. ONLY POSTCARDS ACCEPTED AT THE

5 FACILITY – SAN DIEGO SHERIFF’S DEPARTMENT.”

6

17. On or about March 4, 2013, PLN mailed its February 2013 Prison

7 Legal News publication to the following two (2) prisoners at the Las Colinas and

8 George F. Bailey Detention Facilities, each of whom were in custody there at the

9 time that the publications were received.

10

Prisoner Name:

Facility:

Date Mailed to Prisoner:

Katherine Martin

Las Colinas

March 4, 2013

11

Daniel Sorenson

George F. Bailey

March 4, 2013

12

13 Defendants did not deliver the publications to the inmate-addressees, sending them

14 back by return mail, and marking them with an ink stamp noting: (1) “RETURN TO

15 SENDER. ONLY POSTCARDS ACCEPTED AT THE FACILITY – SAN DIEGO

16 SHERIFF’S DEPARTMENT;” and (2) “RETURN TO SENDER, REASON

17 CHECKED: ATTEMPTED – NOT KNOWN.”

18

18. On or about April 26, 2013, PLN mailed its April 2013 Prison Legal

19 News publication to the following prisoner at the Las Colinas Detention Facility,

20 who was in custody there at the time that the publication was received:

21

Prisoner Name:

Diane Brown

22

Facility: Las Colinas

Date Mailed to Prisoner: April 26, 2013

23 Defendants did not deliver the publication to the inmate-addressee, sending it back

24 by return mail, and marking it with an ink stamp noting: (1) “RETURN TO

25 SENDER. ONLY POSTCARDS ACCEPTED AT THE FACILITY – SAN DIEGO

26 SHERIFF’S DEPARTMENT;” and (2) “RETURN TO SENDER, REASON

27 CHECKED: ATTEMPTED – NOT KNOWN.”

28

19. On or about May 15, 2013, PLN mailed its April 2013 Prison Legal

6
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1 News publication to the following prisoner at the George F. Bailey Detention

2 Facility, who was in custody there at the time that the publication was received:

3

Prisoner Name:

4

Luis Eternod

Facility: George F. Bailey

Date Mailed to Prisoner: May 15, 2013

5 Defendants did not deliver the publication to the inmate-addressee, sending it back

6 by return mail, and marking it with a black marker pen, noting: (1) “RTS.”

7

20. On or about November 6, 2013, PLN mailed its January 2013 Prison

8 Legal News publication to the following prisoner at the San Diego Central Jail, who

9 was in custody there at the time that the publication was received:

10

Prisoner Name:

11

Andre Smith

Facility: San Diego Central

Date Mailed to Prisoner: November 6, 2013

12 Defendants did not deliver the publication to the inmate-addressee, sending it back

13 by return mail, and marking it with a black marker pen, noting: (1) “RTS.”

14

21. On or about February 19, 2014, PLN mailed its January 2014 Prison

15 Legal News publication to the following prisoner at the George F. Bailey Detention

16 Facility, who was in custody there at the time that the publication was received:

17

Prisoner Name:

18

Larry Mallory

Facility: George F. Bailey

Date Mailed to Prisoner: February 19, 2014

19 Defendants did not deliver the publication to the inmate-addressee, sending it back

20 by return mail, and marking it with a black marker pen, noting: (1) “RTS.”

21

22. On or about July 16, 2014, PLN mailed its June 2014 Prison Legal

22 News publication to the following prisoner at the George F. Bailey Detention

23 Facility, who was in custody there at the time that the publication was received:

24

Prisoner Name:

25

David Dadon

Facility: George F. Bailey

Date Mailed to Prisoner: July 16, 2014

26 Defendants did not deliver the publication to the inmate-addressee, sending it back

27 by return mail, and marking it with a black marker pen, noting: (1) “RTS.”

28

23. On information and belief, Defendants refused to deliver at least an

7
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1 additional forty-three (43) Prison Legal News issues that PLN mailed to inmates,

2 other than those identified above, who were in custody at the San Diego County jails

3 at the time the publications were received.

4

24. Currently, PLN has thirty-seven (37) subscribers at the San Diego

5 County jails. PLN continues to pursue its mission to promote public safety through

6 educational and journalistic avenues by sending its monthly publication to inmates

7 confined at San Diego County jails.

8

Censorship of Subscription Renewal Letters

9

25. Defendants also have censored PLN’s correspondence with inmates

10 containing PLN “Subscription Renewal Letters.” Since at least October 2012,

11 Defendants have censored PLN’s Subscription Renewal Letters by refusing to

12 deliver it to two (2) inmates to whom they were addressed, sending it back by return

13 mail, and marking it with a black marker pen, noting: (1) “RTS-POSTCARDS

14 ONLY”; (2) RETURN TO SENDER – ONLY POSTCARDS ACCEPTED AT THE

15 FACILITY. SAN DIEGO SHERIFF’S DEPARTMENT” or simply “RTS.”

16

26. Since October 2012, Defendants censored PLN’s attempt to send

17 Subscription Renewal Letters to the following two (2) inmates at the San Diego

18 County Jails:

19

Prisoner Name:

20

Larry Mallory

John Stratton

21

Facility: George F. Bailey East Mesa

Date Mailed to Prisoner: October 4, 2013 November 1, 2013

22

27. On information and belief, Defendants refused to deliver additional

23 Fifty-Two (52) Subscription Renewal Letters that PLN mailed to inmates, other than

24 those identified above, who were in custody at the San Diego County jails at the

25 time the Subscription Renewal Letters were received.

26

Censorship of PLN’s Informational Brochure Packet

27

28. Defendants have censored PLN’s Informational Brochure Packet by

28 refusing to deliver it to the inmates to whom it was addressed. PLN’s 8
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1 “Informational Brochure Packet” includes the three items described below: (1) The

2 Prison Legal News Brochure and Subscription Order Form; (2) The PLN Book List;

3 and (3) The Published Books Brochure.

4

(a) Prison Legal News Brochure and Subscription Order Form:

5 This brochure and order form include: a description of the topics covered in PLN’s

6 monthly magazine; subscription rates, special subscription offers, a subscription

7 order form; a description of three books available for purchase or included with a

8 subscription to Prison Legal News—Protecting Your Health & Safety, With Liberty

9 for Some: 500 Years of Imprisonment in America, and Prison Profiteers: Who

10 Makes Money from Mass Incarceration; and other information about PLN’s

11 bookstore.

12

(b) PLN Book List: The book list includes a description of 42

13 books, dictionaries, and legal resource materials available for purchase. The books

14 available for purchase cover a variety of topics, including: the basic rights of

15 prisoners regarding health and safety; the American criminal justice system; finding

16 the right lawyer; DNA testing; issues related to imprisoned women; self-

17 representation in court; developing a successful re-entry plan upon correctional

18 release; searching for a job; crime and poverty; and the mental health crisis in U.S.

19 prisons and jails.

20

(c) PLN Published Books Brochure: The PLN Published Books

21 brochure details two books published by PLN and includes detailed information

22 about and an order form for (1) a comprehensive book on high school, vocational,

23 paralegal, undergraduate, and graduate courses available to prisoners through

24 written correspondence programs of study; and (2) a legal resource book on the

25 topic of ineffective assistance of counsel and habeas corpus litigation.

26

29. Since at least October 2012, and continuing to the present day, PLN

27 mailed its Informational Brochure Packet addressed to at least ten (10) prisoners

28 within the San Diego County Jail system on or about the following dates, which 9
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1 were subsequently censored by their respective facilities:

2

Prisoner Name:

Facility:

Date Mailed to Prisoner:

3

Lavinia Wofford

Debra Jones

4

Sherry Lackey

Las Colinas Las Colinas Las Colinas

October 10, 2012 October 10, 2012 October 12, 2012

5

Katherine Martin

Las Colinas

March 4, 2013

6

James Waddell

Diane Brown

7

Abner Lister

San Diego Central Las Colinas George F. Bailey

March 4, 2013 April 26, 2013 January 21, 2014

8

Aaron Hurst

Facility 8

July 23, 2014

9

Eli Robinson

George F. Bailey

August 18, 2014

Christopher Macias George F. Bailey

September 19, 2014

10

11

30. Defendants have censored PLN’s Informational Brochure Packet by

12 refusing to deliver it to the inmates to whom it is addressed, sometimes sending it by

13 return mail and indicating various reasons for return including the following: (1)

14 “RETURN TO SENDER”; (2) “RTS”; (3) “RETURN TO SENDER. ONLY

15 POSTCARDS ACCEPTED AT THE FACILITY – SAN DIEGO SHERIFF’S

16 DEPARTMENT.”

17

31. On information and belief, Defendants refused to deliver at least an

18 additional forty-one (41) Informational Brochure Packets that PLN mailed to

19 inmates, other than those identified above, who were in custody at the San Diego

20 County jails at the time the Informational Brochure Packets were received.

21

32. PLN continues its educational and journalistic mission by sending its

22 Informational Brochure Packets to inmates confined at San Diego County jails.

23

Censorship of Photocopies and Internet Printouts

24

33. Defendants also have censored PLN’s correspondence with inmates

25 containing the following Internet-based printouts of case law by refusing to deliver

26 copies of the following decisions: Clement v. California Dept. of Corr., 364 F.3d

27 1148 (9th Cir. 2004); Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005);

28 Prison Legal News v. Columbia County, Case No. 3:12-CV-00071-SI, 2012 U.S. 10
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1 Dist. LEXIS 74030 (D. Or. May 29, 2012); and Prison Legal News v. County of

2 Ventura, Case No. 14-0773-GHK, 2014 U.S. Dist. LEXIS 84574 (C.D. Cal. June 16,

3 2014).

4

34. Since at least March 2013, and continuing to the present day, PLN

5 mailed these internet-based printouts of case law addressed to sixteen (16) prisoners

6 within the San Diego County Jail system on or about the following dates, which

7 were subsequently censored by their respective facilities:

8 Prisoner Name: 9 Katherine Martin
Katherine Martin 10 James Waddell
11 James Waddell 12 Katherine Martin
John Stratton 13 Debra Jones
14 Regina Johnson 15 Sherry Lackey
Isaiah Bowman 16 Kari Harris
17 Cameron Parker 18 Raymond Wight
Steven Macomber 19 Steven Hummel
20 Richard Fox 21 Diane Brown
Diane Brown 22 Eli Robinson
23

Facility: Las Colinas Las Colinas San Diego Central San Diego Central Las Colinas East Mesa Las Colinas Las Colinas Las Colinas San Diego Central San Diego Central East Mesa East Mesa East Mesa San Diego Central George Bailey Las Colinas Las Colinas George Bailey

Case: Lehman Clement Lehman Clement Columbia Columbia Columbia Columbia Columbia Columbia Columbia Columbia Columbia Columbia Columbia Columbia Lehman Clement Ventura

Date Mailed to Prisoner: March 6, 2013 March 6, 2013 March 6, 2013 March 6, 2013 March 6, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 1, 2013 April 29, 2013 April 29, 2013 August 12, 2014

24

35. These items have been sent by return mail indicating various reasons

25 for return, including the following: (1) “RETURN TO SENDER – REFUSED”; (2)

26 “RETURN TO SENDER. ONLY POSTCARDS ACCEPTED AT THE FACILITY

27 – SAN DIEGO SHERIFF’S DEPARTMENT”; (3) “UNACCEPTABLE MAIL”; (4)

28 “RETURN TO SENDER – UNDELIVERABLE AS ADDRESSED”; 11
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1 (5) “RETURN TO SENDER”; and (6) “RTS.” PLN has also received information

2 from prisoners reflecting that three other mailings of case law were censored.

3

36. On information and belief, Defendants refused to deliver at least an

4 additional One Hundred and Fifty-Five (155) internet-based printouts of case law

5 that PLN mailed to inmates, other than those identified above, who were in custody

6 at the San Diego County jails at the time the internet-based printouts of case law

7 were received.

8

37. PLN continues its educational and journalistic mission by sending

9 Internet-based printouts of case law to inmates confined at San Diego County jails.

10

Censorship of PLN Letters

11

38. Since October 2012, Defendants also have censored PLN’s letter

12 correspondence with inmates. PLN mailed individually addressed letters from its

13 Editor, Paul Wright, to thirteen (13) separate prisoners at the San Diego County jails

14 on or about the following dates, which were subsequently censored by their

15 respective facilities:

16

Prisoner Name:

Facility:

Date Mailed to Prisoner:

17

Mark Davis

Alfredo Ortega

18

Anthony Harris

Vista South Bay South Bay

October 18, 2012 October 18, 2012 October 18, 2012

19

Jimmy Bray

South Bay

October 18, 2012

20

Lance Ware

Richard Fox

21

Derek Dahl

South Bay South Bay San Diego Central

October 18, 2012 October 18, 2012 October 18, 2012

22

Edward Crenshaw

San Diego Central

October 18, 2012

23

Sherry Lackey

Deborah Fenex

24

Regina Johnson

Las Colinas Las Colinas Las Colinas

October 18, 2012 October 18, 2012 October 18, 2012

25

Rebecca Williams

Las Colinas

October 18, 2012

26

Sandra Lamb

Las Colinas

October 18, 2012

27

39. These items have been sent by return mail indicating various reasons

28 for return, including the following: (1) “RETURN TO SENDER. ONLY 12
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1 POSTCARDS ACCEPTED AT THE FACILITY – SAN DIEGO SHERIFF’S

2 DEPARTMENT”; (2) and “RETURN TO SENDER”

3

40. On information and belief, Defendants refused to deliver at least an

4 additional twenty-four (24) letters from PLN’s editor that were mailed to inmates,

5 other than those identified above, who were in custody at the San Diego County jails

6 at the time the letter correspondences were received.

7

Censorship of Books

8

41. Defendants’ have prevented Plaintiffs from sending the Habeas

9 Citebook: Ineffective Assistance of Counsel (Habeas Citebook), to inmates at the

10 San Diego County jails – a book published and distributed by Plaintiffs. Widely

11 used by prisoners and jail-house lawyers, the book describes the procedural and

12 substantive complexities of federal habeas corpus litigation with the goal of

13 identifying and litigating claims involving ineffective assistance of counsel.

14

42. PLN mailed individually addressed copies of the book to eight (8)

15 prisoners on or about the following dates, which were subsequently censored by

16 their respective facilities:

17

Prisoner Name:

Facility:

18

Charles Daniels

Chris Eliott

19

David J. Dadon

George Bailey George Bailey George Bailey

20

Amy Huntsman

Las Colinas

21

Aliyyh Brown

Las Colinas

Dustin Roberts

George Bailey

22

Carl Lee Roberts

George Bailey

23

Eli Robinson

George Bailey

Date Mailed to Prisoner: July 16, 2014 July 16, 2014 July 16, 2014 July 23, 2014 July 23, 2014 August 12, 2014 August 12, 2014 August 12, 2014

24

25

43. These items have been sent by return mail at PLN’s expense indicating

26 various reasons for the return including the following: (1) “RETURN”; (2) “RTS”;

27 and (3) RETURN: NOT AUTHORIZED. HAS TO COME FROM PUBLISHER”,

28 despite the fact that Plaintiff is the publisher of Habeas Citebook; and (4) 13
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1 “REASON FOR REJECT, BOOK SIZE NOT ALLOWED, DEMENSIONS [SIC]

2 TO [SIC] LARGE.”

3

44. On information and belief, Defendants refused to deliver at least an

4 additional nineteen (19) books that were mailed to inmates, other than those

5 identified above, who were in custody at the San Diego County jails at the time the

6 books were received.

7

Failure to Provide Due Process

8

45. Defendants did not provide PLN with constitutionally adequate due

9 process notice or with an opportunity to appeal the aforementioned censorship

10 decisions.

11

46. Defendants failed to provide due process notice to PLN of the reason

12 for rejecting PLN materials by, among other inadequacies, failing to explain the

13 basis for their censorship decisions, failing to identify the specific mail policy they

14 relied on, stating different reasons for censoring identical items of mail, and

15 otherwise failing to give meaningful notice of the censorship. With all of the

16 rejected materials, Defendants did not provide any further information to PLN other

17 than what is noted above. At no time did Defendants provide an opportunity for

18 PLN to appeal the rejection of its mail.

19

47. On information and belief, Defendants fail to provide due process

20 notice and an opportunity to appeal to other senders of censored mail addressed to

21 prisoners at the San Diego County jails.

22

48. On information and belief, Defendants fail to provide any notice to the

23 prisoner-addressees that the Jail censored PLN’s mail. Defendants also fail to

24 provide the prisoner-addressees with any opportunity to be heard to challenge the

25 censorship decisions.

26

Jail Policies and Practices

27

49. Starting in September 2012, Defendants began applying a postcard only

28 policy which requires all incoming mail addressed to inmates at the San Diego 14
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[1330019-2]

1 County jails, with the exception of legal mail, to be in postcard form (hereinafter

2 “Postcard Only Mail Policy”). Defendants’ web site explaining that policy states, in

3 pertinent part: “Effective September 1, 2012, the only acceptable form of incoming

4 personal public correspondence will be postcards and electronic mail messages (e-

5 mail). Personal incoming letters will no longer be accepted. Any incoming

6 personal letters received will be returned to the sender.” Defendants’ web site also

7 provides that books must be “be no larger than 6" x 9" x 2" thick.”

8

50. Defendants’ Postcard Only Mail Policy and book policies, practices

9 and customs have been used to censor PLN’s correspondence with inmates at San

10 Diego County jails containing PLN’s monthly journal, informational brochure

11 packets, Internet-based printouts of case law, letters from the PLN Editor, Paul

12 Wright, and books published by PLN.

13

51. Defendants’ conduct prohibiting PLN from mailing its publications,

14 informational brochure packets, Internet-based printouts of case law and letters to

15 inmates confined at the San Diego County jails violates the First Amendment.

16 Defendants’ policies, practices and customs censor these expressive activities and

17 have a chilling effect on PLN’s future speech and expression directed toward

18 inmates confined there. Defendants’ policies, practices and customs are

19 unconstitutional both facially and as applied to Prison Legal News.

20

52. Prison Legal News publishes and distributes content concerning the

21 rights of inmates and the means by which they may obtain relief from

22 unconstitutional conditions of confinement. As a result, PLN is informed and

23 believes that Defendants have retaliated against PLN by refusing to deliver PLN’s

24 written materials to inmates held at the jails.

25

53. Defendants’ actions have violated, continue to violate, and are

26 reasonably expected in the future to violate PLN’s constitutional rights, and have

27 caused Plaintiff financial harm in the form of lost subscriptions, lost opportunities

28 for purchases and sales of its publications, lost opportunities for book sales, and 15
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES

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[1330019-2]

1 diversion of resources to address the censorship. In addition, Defendants’ actions

2 have frustrated Plaintiff’s mission of education and advocacy, including the

3 dissemination of PLN’s political message, and the reporting and publishing of news

4 regarding the human and legal rights of persons held in prisons and jails. Further,

5 Defendants’ actions have interfered with PLN’s ability to recruit new donors,

6 writers and supporters.

7

54. Defendants’ actions and inactions were and are motivated by ill motive

8 and intent, and were and are all committed under color of law with reckless

9 indifference to PLN’s rights.

10

55. Defendants COUNTY OF SAN DIEGO, WILLIAM D. GORE, RICH

11 MILLER, WILL BROWN, DOES 1-10, and other agents of the County of San

12 Diego are responsible for or personally participated in creating and implementing

13 these unconstitutional policies, practices, and customs, or for ratifying or adopting

14 them. Further, Defendants are responsible for training and supervising the mail staff

15 whose conduct has injured and continues to injure PLN.

16

56. Defendants’ unconstitutional policy, practices, and customs are

17 ongoing, continue to violate PLN’s rights, and are the moving force behind the

18 constitutional violations. As such, PLN has no adequate remedy at law.

19

57. PLN is entitled to injunctive relief prohibiting Defendants from

20 refusing to deliver publications, informational brochures packets, and other

21 correspondence from Prison Legal News without any legal justification, and

22 prohibiting Defendants from censoring mail without due process of law.

23

CLAIMS FOR RELIEF

24

FIRST CLAIM FOR RELIEF

25

(Against All Defendants - For Violations of the First Amendment Under Color Of State Law – Free Speech; Section 1983)

26

27

58. Plaintiff realleges and incorporates by reference the preceding

28 paragraphs. 16
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[1330019-2]

1

59. The acts described above constitute violations of Plaintiff’s rights under

2 the First Amendment to the United States Constitution through 42 U.S.C. § 1983,

3 and have caused and will continue to cause damages to Plaintiff.

4

60. Plaintiff seeks declaratory and injunctive relief, as well as nominal and

5 compensatory damages, against all Defendants.

6

61. Plaintiff is informed, believes, and based thereon alleges that in

7 engaging in the conduct alleged herein, the individual Defendants acted with the

8 intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel and

9 unjust hardship in conscious disregard of Plaintiff’s rights with the intention of

10 causing Plaintiff injury and depriving it of its constitutional rights.

11

62. As a result of the forgoing, Plaintiff seeks exemplary and punitive

12 damages against the individual Defendants.

13

SECOND CLAIM FOR RELIEF

14

(Against All Defendants - For Violations of the First Amendment Under Color Of State Law - Retaliation for Exercising Speech Rights; Section 1983)

15

16

63. Plaintiff realleges and incorporates by reference the preceding

17 paragraphs.

18

64. The acts described above constitute violations of Plaintiff’s right to be

19 free from retaliation for exercising its constitutionally protected speech rights.

20

65. By retaliating against Plaintiff, Defendants have violated Plaintiff’s

21 rights under the First Amendment to the United States Constitution through 42

22 U.S.C. § 1983, and have caused and will continue to cause damages to Plaintiff.

23

66. Plaintiff seeks declaratory and injunctive relief, as well as nominal and

24 compensatory damages, against all Defendants.

25

67. Plaintiff is informed, believes, and based thereon alleges that in

26 engaging in the conduct alleged herein, the individual Defendants acted with the

27 intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel and

28 unjust hardship in conscious disregard of Plaintiff’s rights with the intention of 17
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES

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[1330019-2]

1 causing Plaintiff injury and depriving it of its constitutional rights.

2

68. As a result of the forgoing, Plaintiff seeks exemplary and punitive

3 damages against the individual Defendants.

4

THIRD CLAIM FOR RELIEF

5

(Against All Defendants - For Violations of the Due Process Clause of the Fourteenth Amendment Under Color Of State Law; Section 1983)

6

7

69. Plaintiff realleges and incorporates by reference the preceding

8 paragraphs.

9

70. By failing to give Plaintiff sufficient notice of the censorship of its

10 written speech, and by failing to give an opportunity to be heard with respect to that

11 censorship, Defendants have deprived and continue to deprive Plaintiff of liberty

12 and property without due process of law, in violation of the Fourteenth Amendment

13 to the United States Constitution via 42 U.S.C. § 1983.

14

71. The acts described above have caused and will continue to cause

15 damage to Plaintiff.

16

72. Plaintiff seeks declaratory and injunctive relief, as well as nominal and

17 compensatory damages, against all Defendants.

18

73. Plaintiff is informed, believes, and based thereon alleges that in

19 engaging in the conduct alleged herein, the individual Defendants acted with the

20 intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel and

21 unjust hardship in conscious disregard of Plaintiff’s rights with the intention of

22 causing Plaintiff injury and depriving it of its constitutional rights.

23

74. As a result of the forgoing, Plaintiff seeks exemplary and punitive

24 damages against the individual Defendants.

25

FOURTH CLAIM FOR RELIEF

26

(Against All Defendants - For Violations of the Equal Protection Clause of the Fourteenth Amendment Under Color Of State Law; Section 1983)

27

28

75. Plaintiff realleges and incorporates by reference the preceding

18
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[1330019-2]

1 paragraphs.

2

76. By prohibiting the delivery of Plaintiff’s publications but allowing the

3 delivery of the publications of others who are similarly situated, Defendants have

4 deprived and continue to deprive Plaintiff of equal protection under the laws, in

5 violation of the Fourteenth Amendment to the United States Constitution through 42

6 U.S.C. § 1983.

7

77. The acts described above have caused and will continue to cause

8 damage to Plaintiff.

9

78. Plaintiff seeks declaratory and injunctive relief, as well as nominal and

10 compensatory damages, against all Defendants.

11

79. Plaintiff is informed, believes, and based thereon alleges that in

12 engaging in the conduct alleged herein, the individual Defendants acted with the

13 intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel and

14 unjust hardship in conscious disregard of Plaintiff’s rights with the intention of

15 causing Plaintiff injury and depriving it of its constitutional rights.

16

80. As a result of the forgoing, Plaintiff seeks exemplary and punitive

17 damages against the individual Defendants.

18

PRAYER FOR RELIEF

19

The conduct previously alleged, unless and until enjoined by order of this

20 Court, will cause great and irreparable injury to Plaintiff. Further, a judicial

21 declaration is necessary and appropriate at this time so that all parties may know

22 their respective rights and act accordingly.

23

WHEREFORE, Plaintiff requests relief as follows:

24

1. A declaration that Defendants’ policies, practices, and customs violate

25 the First and Fourteenth Amendments to the United States Constitution.

26

2. An order enjoining all Defendants and their employees, agents, and any

27 and all persons acting in concert with them from further violating Plaintiff’s and

28 other senders’ civil rights under the First and Fourteenth Amendments to the United 19
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[1330019-2]

1 States Constitution.

2

3. Nominal damages for each violation of Plaintiff’s rights by the

3 Defendants.

4

4. Compensatory damages in an amount to be proven at trial.

5

5. Punitive damages against the individual Defendants in an amount to be

6 proven at trial.

7

6. Costs, including reasonable attorney’s fees, under 42 U.S.C. § 1988

8 and under other applicable law.

9

7. Prejudgment and post-judgment interest.

10

8. Such other relief as the Court deems just and equitable.

11

12

DEMAND FOR JURY TRIAL

13

Plaintiff hereby demands a jury trial.

14

15 DATED: October 9, 2014

Respectfully submitted,

16

ROSEN BIEN GALVAN & GRUNFELD LLP

17

18

By: /s/ Ernest Galvan Ernest Galvan

19

20

21

22

23

24

25

26

27

28 20
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES

 
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1

2

3

4
UNITED STATES DISTRICT COURT
5
SOUTHERN DISTRICT OF CALIFORNIA
6

7

PRISON LEGAL NEWS,

) Case No. 3:14-cv-2417-L-NLS

8

)

Plaintiff,

) ORDER GRANTING IN PART

9

) AND DENYING IN PART

v.

) PLAINTIFF’S MOTION FOR

10

) PRELIMINARY INJUNCTION

COUNTY OF SAN DIEGO, et al., ) [DOC NO. 8]

11

)

)

12

Defendants.

)

)

13

)

)

14

)

)

15

)

)

16

Pending before the Court is Plaintiff’s Motion for Preliminary Injunction (“Pl.’s

17 Mot”). The Court finds this motion suitable for determination on the papers submitted

18 and without oral argument under Civil Local Rule 7.1(d)(1). For the following reasons,

19 the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for

20 preliminary injunction.

21

22 I. BACKGROUND

23

On October 9, 2014, Prison Legal News (“PLN”) filed this action against the

24 County of San Diego, Sheriff William D. Gore, Assistant Sheriff Rich Miller, and

25 Commander Will Brown (“Defendants”). (Compl., ECF No. 1.) The Complaint seeks

26 declaratory and injunctive relief as well as damages for violations of the First and

27 Fourteenth Amendments. (See generally id.)

28

Prison Legal News (“PLN”) publishes and distributes books, Informational

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1 Brochure packets, and Prison Legal News, a monthly journal of corrections news and

2 analysis to prisoners and law librarians in over 2,000 correctional facilities in the United

3 States. (Declaration of Paul Wright in Support of Motion for Preliminary Injunction

4 (“Wright Decl.”) ¶ 4, ECF No. 8-7.) Prison Legal News provides information about

5 legal issues regarding prisoners, jail and prison conditions, and prisoners’ rights. (Id. ¶

6 12.) PLN mails these publications both to subscribers and to inmates whom PLN

7 believes may be interested in initiating a subscription. (Id. ¶ 19.)

8

In September 2012, Defendants implemented a postcard-only mail policy that

9 requires all incoming mail addressed to an inmate at the San Diego County jails to be in

10 postcard form, with the exception of legal mail. (Wright Decl. Ex. L.) Defendants’

11 website explains that under the policy “the only acceptable form of incoming personal

12 public correspondence will be postcards and electronic mail messages (e-mail). Personal

13 incoming letters will no longer be accepted. Any incoming personal letters received will

14 be returned to the sender.” (Id.)

15

As a result of the postcard-only mail policy, Defendants have refused to deliver

16 PLN’s monthly journals, Informational Brochure Packets, subscription renewal letters,

17 letters from PLN’s Editor, and printouts of case law sent by PLN to inmates of San

18 Diego County jails on at least sixty-one separate occasions since October 2012. (Wright

19 Decl. ¶ 10.) Additionally, Defendants have refused to deliver at least 19 internet-based

20 case law printouts that PLN mailed to inmates at the San Diego County jails. (Id. ¶ 22.)

21 The rejected issues of Prison Legal News, informational brochure packets, and

22 subscription renewal letters have been returned with markings of “Return to Sender” or

23 “Only Postcards Accepted at the Facility” on the outside of the envelopes. (Id. ¶¶ 13,

24 16.)

25

Defendants also implement a size limitation on books mailed to inmates. (Wright

26 Decl. Ex. L.) Hardcover books are not accepted, and soft-cover books must “be no

27 larger than 6" x 9" x 2" thick.” (Id.) On at least eight separate occasions Defendants

28 have refused to deliver The Habeas Citebook, a book published by PLN which measures

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1 8.25" x 10.5" x .5". (Wright Decl. ¶¶ 8, 16.) The rejected books were returned to PLN

2 with notifications indicating various reasons for the rejection. (Id.) Plaintiff did not, and

3 has not, contacted jail staff or administration to discuss a potential appeal of these

4 rejections. (Declaration of Rich Miller in Support of Defendants’ Opp’n (“Miller Decl.”)

5 ¶¶ 15, 17, 19, ECF No. 24-8.)

6

PLN’s Complaint sets forth three primary claims upon which they seek an

7 injunction. First, PLN claims that the post-card only policy violates PLN’s First

8 Amendment rights. (Compl. ¶ 49.) Second, PLN claims that the policy to ban books

9 based upon a size limitation also violates PLN’s First Amendment Rights. (Id.) Third,

10 PLN claims that Defendants violate the Fourteenth Amendment by failing to give

11 Plaintiff sufficient notice of the censorship of its written speech. (Id. ¶ 70.) PLN’s

12 pending motion for a preliminary injunction requests that the Court enjoin Defendants

13 from continuing to enforce both the postcard-only mail policy and the soft-cover book

14 size limitation as well as a mandate for Defendants to comply with due process 15 requirements.1 (Pl.’s Mot. 21-24.)

16

17 II. LEGAL STANDARD

18

A preliminary injunction is an “extraordinary remedy that may only be awarded

19 upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res.

20 Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction must

21 show: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer

22 irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips

23 in his favor; and (4) that an injunction is in the public interest. Id. at 20.

24

The Ninth Circuit has adopted a “sliding scale approach” under which “[a]

25 preliminary injunction is appropriate” where there are “serious questions going to the

26

27

1Additionally, it appears Plaintiff has requested injunctive relief regarding

Defendants’“ban on unsubscribed magazines” for the first time in its Reply. (Pl.’s Reply 7, ECF 28 No. 27.) This request is untimely, and therefore DENIED.

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1 merits ... and the balance of hardships tips sharply in the plaintiff's favor.” Alliance for

2 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir.2011) (internal citation

3 and quotation marks omitted). Under this “serious questions” test, “a ‘likelihood’ of

4 success per se is not an absolute requirement” to securing a preliminary injunction.

5 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1086 (9th Cir.2014), petition for cert.

6 filed, 82 USLW 3624 (Apr. 11, 2014) (No. 13–1244). A stronger showing on the

7 “balance of hardships element” may offset a lesser showing of “likelihood of success on

8 the merits,” so long as the other two elements of the Winter test are also met. Alliance,

9 632 F.3d at 1135. In other words, if the balance of hardships tips sharply in the

10 plaintiff's favor, there is a likelihood of irreparable injury, and the injunction is in the

11 public interest, then a preliminary injunction may issue so long as the plaintiff shows

12 there are “serious questions going to the merits.” Id. Such “serious questions” are

13 presented where the movant “has a fair chance of success on the merits.” Sierra

14 On–Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984).

15

16 III. ANALYSIS

17

A. Post-Card Only Policy

18

1. Likelihood of Success on the Merits

19

To determine PLN’s likelihood of success on the merits, the Court must analyze

20 the constitutionally of the County’s postcard-only policy. To do so, the Court must first

21 “determine whether any First Amendment interest is implicated” by the County jails’ ban

22 on letter mail. Hrdlicka v. Reniff, 631 F.3d 1044, 1048 (9th Cir. 2011). The Ninth

23 Circuit has repeatedly recognized “that publishers and inmates have a First Amendment

24 interest in communicating with each other.” Id. at 1049. Prison walls do not form a

25 barrier separating prison inmates from the protections of the Constitution. Turner v.

26 Safley, 482 U.S. 78, 84 (1987). Nor do these walls bar others from “exercising their own

27 constitutional rights by reaching out to those on the ‘inside.’” Thornburgh v. Abbott,

28 490 U.S. 401, 407 (1989). Because the postcard-only policy directly affects PLN’s

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1 ability to communicate with prisoners by mail, it implicates a well-established First

2 Amendment interest. Prison Legal News v. County of Ventura, 2014 WL 2736103, *3

3 (C.D. Cal. June 16, 2014).

4

However, prison administration is an inordinately difficult task, that has been

5 committed to the responsibility of the executive and legislative branches, and “separation

6 of powers concerns counsel a policy of judicial restraint.” Turner, 482 U.S. at 84-85. As

7 such, PLN’s well-established First Amendment interest is “subject to substantial

8 limitations and restrictions in order to allow prison officials to achieve legitimate

9 correctional goals and maintain institutional security.” Prison Legal News v. Lehman,

10 397 F.3d 692, 699 (9th Cir. 2005). Thus, to ensure that any injunctive relief incorporates

11 due deference for the exigencies of jail operation, the County’s postcard-only policy

12 must be evaluated under the four factors promulgated by the Supreme Court in Turner.

13 482 U.S. at, 84.

14

A prison regulation that impinges on inmates’ constitutional rights may

15 nonetheless be valid if it is “reasonably related to legitimate penological interests.”

16 Turner, 482 U.S. at 89. In Turner, the Supreme Court set forth four factors to determine

17 whether a correctional regulation “passes constitutional muster.” Frost v. Symington,

18 197 F.3d 354 (9th Cir. 1999). Those factors are:

19

(1) whether the regulation is rationally related to a legitimate and neutral

governmental objective; (2) whether there are alternative avenues that

20

remain open to the inmates to exercise the right; (3) the impact that

accommodating the asserted right will have on other guards and

21

prisoners, and on the allocation of prison resources; and (4) whether the

existence of easy and obvious alternatives indicates that the regulation

22

is an exaggerated response by prison officials.

23 Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482

24 U.S. at 89-90).

25

a. Rational Relationship to Legitimate Penological Objective

26

Plaintiffs argue that the “postcard-only policy is not rationally related to any

27 security concerns.” (Pl.’s Mot. 7.) Defendants contend that the postcard-only policy is

28 rationally related to (1) “significant security concerns” and (2) the efficient use of the

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1 County jails’ resources. (Opp’n 5, 7.)

2

Under the first Turner factor, the Court must determine whether “the governmental

3 objective underlying the regulations at issue is legitimate and neutral, and that the

4 regulations are rationally related to that objective.” Thornburgh, 490 U.S. at 414. A

5 “regulation cannot be sustained where the logical connection between the regulation and

6 the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner, 482

7 U.S. at 89-90. The initial burden is on the defendant to set forth “an intuitive, common-

8 sense connection” between the challenged policy and its asserted objectives. See Frost

9 v. Symington, 197 F.3d 348, 356 (1999). If the plaintiff presents evidence that refutes

10 defendant’s common-sense connection, then defendant “must demonstrate that the

11 relationship is not so remote as to render the policy arbitrary.” Cook, 238 F.3d at 1150.

12

Defendants first contend that the postcard-only policy is rationally related to

13 significant security concerns, specifically the introduction of contraband into the County

14 jails via letter mail. Plaintiff counters that “[a]lthough security concerns can be a valid

15 penological interest, the postcard-only policy is not rationally related to any security

16 concerns.” (Pl.’s Mot. 7.) The Court agrees with Plaintiff.

17

Assuming that Defendants initially established a common-sense connection

18 between the policy and security concerns, PLN has presented evidence to refute this

19 connection. John Clark, PLN’s corrections expert with 40 years of experience, including

20 as the Warden of a large federal detention facility, opines that the postcard-only policy

21 “is contrary to widely accepted detention practices.” (Clark Decl. ¶¶ 28, 35.) He further

22 states that the County jails have a variety of methods through which they can stop

23 contraband that might be sent to inmates through correspondence and that these

24 techniques have been successfully used for decades. (Clark Decl. ¶ 29.) Defendants

25 attempt to present counter-evidence demonstrating a connection between the policy and

26 object. However, they fail to provide an “explanation why a postcard-only policy is

27 more effective at preventing the introduction of contraband than opening envelopes and

28 inspecting their contents.” PLN v. Columbia II, 942 F. Supp. 2d 1068, 1083 (D. Or.

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1 2013) (emphasis in original). The burden therefore shifts to the Defendants to show that

2 the connection is “not so remote as to render the policy arbitrary or irrational.” Frost,

3 197 F.3d at 357.

4

Defendants attempt to meet their burden by demonstrating that the postcard policy

5 has resulted in a “reduction in contraband” entering the jails. (Opp’n 5; Miller Decl. ¶

6 12.) Detective Byrne estimates that “[t]hrough the combination of the ‘postcards only’

7 policy, and the use of body scanners, the Sheriff’s Department has been able to reduce

8 the amount of drugs in the jails by an estimated 50%.” ((Declaration of Thomas J. Byrne

9 in Support of Defendants’ Opp’n (“Byrne Decl.”) 7, ECF No. 24-2.) However, Detective

10 Byrne’s statements fail to identify what proportion of this 50% reduction is attributable

11 to the postcard-only policy as opposed to the use of body scanners. Further, Detective

12 Byrne’s estimated reduction is inconsistent with statements given by spokespersons from

13 the San Diego Sheriff’s Department showing an increase in drug and alcohol cases in the

14 County’s jails since 2012, when the post-card policy was implemented. (Clark Reply

15 Decl., ¶ 9, Ex. A (a December 6, 2014 article from the San Diego Union Tribune citing

16 Jan Caldwell, a spokeswoman for the Sheriff’s Department), Ex. B (November 29, 2014

17 Associated Press article citing a statement from sheriff’s Commander John Ingrassia.))

18

Defendants additionally contend that the concerns regarding the introduction of

19 contraband are “well documented in the declarations filed” in opposition. (Opp’n 5.)

20 However, these declarations fail to provide an explanation as to why the postcard-only

21 mail policy is more effective at preventing the introduction of contraband. Instead, they

22 offer statements that the improvement to the safety of the facility is based upon a

23 reduction in the amount of time it takes to process the mail. Specifically, the Deputies

24 state that the reduction in time is due to a reduced number of pages which must be

25 inspected. (See e.g. Decl. Maeda ¶ 7; Decl. Lord ¶ 9; Decl. Gehris ¶ 8.) Taking

26 Defendants evidence as a whole, the Court finds no evidence that the policy has actually

27 reduced contraband. Therefore, the connection between the policy and the contraband

28 prevention justification is “so remote as to render the policy arbitrary.”

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1

This is the fifth time a district court within the Ninth Circuit has addressed a

2 preliminary injunction of a jail’s postcard-only mail policy. The four other district courts

3 to address the issue have enjoined the policy. Prison Legal News v. County of Ventura,

4 2014 WL 2736103 (C.D. Cal. June 16, 2014); Prison Legal News v. Columbia County,

5 942 F. Supp. 2d 1068 (D. Or. 2013); Prison Legal News v. Lewis County, et. al. 14-cv-

6 05304 (W.D. Wash. 2014); Prison Legal News v. Spokane County, cv-11-029 RHW

7 (E.D. Wash.) (see Wright Decl. Ex. J.) Defendants’ attempts to distinguish these cases

8 are unavailing. Defendants provide no evidence or cogent arguments as to why the

9 application of the Turner factors would shift due to smaller or more rural county jails.

10 (See Opp’n 6.)

11

For the above reasons, the first factor favors Plaintiffs. Although the first Turner

12 factor is sine qua non, the other three factors confirm that PLN would likely prevail on

13 thier constitutional challenge of the post card policy. Cook, 238 F.3d at 1151.

14

15

b. Availability of Alternative Avenues for Exercise of Asserted

16

Right

17

The second Turner factor considers whether “other avenues remain available for

18 the exercise of the asserted right.” Turner, 482 U.S. at 90. In evaluating the second

19 Turner factor, “the right in question must be viewed sensibly and expansively.” Mauro

20 v. Arpaio, 188 F.3d 1054, 1061 (9th Cir. 1999) “[A]lternative means [of exercising the

21 right] need not be ideal; they need only be available.” Overton v. Bazzetta, 539 U.S.

22 126, 135 (2003).

23

Defendants argue that alternative means of communicating with inmates exist in

24 the form of a free e-mail service or by reducing envelope mail to a postcard size.

25 (Opp’n. at 2, 6.) Plaintiff argues that there are significant restrictions on the free e-mail

26 service and that PLN is unable to reduce its correspondence to a small postcard. (Pl.’s

27 Reply 6.) The Court agrees with PLN.

28

Defendants contend that the availability of “free e-mail service” is a viable means

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1 by which PLN may exercise their First Amendment Rights. (Opp’n. 6.) In fact,

2 Defendants state that “[e]-mail is the preferred and contemporary means of immediate

3 communication.” (Id.) Defendants claim that “[a]nyone can e-mail an inmate, at any

4 time, seven days a week, for free.” (Id.) But upon closer inspection, the “free e-mail

5 service” provided by San Diego County jails places significant limitations on the

6 expression of Plaintiff’s First Amendment rights. Specifically, emails sent via the free

7 service are limited to one page and 2,400 characters of plain text that can not be copied

8 into the e-mail. (Miller Decl. ¶ 5; Wright Reply Decl. ¶ 4, Ex. A.) Further, the free e-

9 mail service only allows for an author to send two emails per day, thereby capping the

10 amount of text available to be sent by PLN at two pages of plain text per day. (Id.)

11 While the e-mail system provides a separate medium of expression, the free service does

12 not represent an alternative avenue to exercise PLN’s First Amendment rights, as the

13 limitations on the system prevent comparable freedom of expression as is found in a

14 letter. The e-mail system is not a viable method for PLN to convey the information to

15 inmates that was once sent via letter mail. Under the current rule, PLN would be limited

16 to only two pages of correspondence per inmate and would be required to hand-type the

17 email to each inmate, one at a time. (Wright Reply Decl. ¶ 4.) Because of these

18 limitations, the free e-mail service fails to provide an alternative avenue for the exercise

19 of PLN’s First Amendment Right.

20

Defendants also offer a number of additional alternatives to envelope mail that

21 PLN may utilize to communicate with inmates, such as reducing PLN’s informational

22 brochure packets to postcards or sending case citations to inmates who may then access

23 case law via an off-site law library. (Opp’n at 2.) These alternatives fail to adequately

24 allow PLN to exercise their First Amendment rights. Reducing a 3-page brochure to a

25 postcard would likely strip it of a significant portion of its content, thus failing to serve

26 as an adequate alternative. Likewise, the off-site law library services place limitations

27 on the amount of access inmates have to case law. The service limits requests to four

28 cases, totaling no more than fifty pages per month, and is available only to those with an

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1 active criminal or civil case. (Pl. Reply 7; Woodfork Decl. ¶¶ 25-32; Jones Decl. ¶¶ 19-

2 20; Marks Decl. Ex. A.) The Constitutional right at issue here is PLN’s First

3 Amendment right to communicate with inmates by sending copies of legal decisions that

4 may notify inmates of, among other things, the existence of a potential cause of action.

5 The availability of a law library does not serve as an alternative avenue for PLN to

6 convey legal information to inmates. Thus, inmate access to the law library does not

7 serve as an adequate alternative for PLN to send case law to inmates within the County

8 jails.

9

Although Defendants have listed a number of alternative means of communication

10 with San Diego County inmates, these methods so severely constrain the First

11 Amendment rights of PLN to render them unviable alternative methods. Accordingly,

12 the second Turner factor weighs in favor of PLN.

13

14

c. Impact of Accommodation on Guards, Prisoners, and the

15

Allocation of Prison Resources

16

The third Turner factor assess “the impact accommodation of the asserted

17 constitutional right will have on guards and other inmates, and on the allocation of

18 prison resources generally.” Turner, 482 U.S. at 90. This factor weighs strongest where

19 “accommodation of an asserted right will have a significant ‘ripple effect’ on fellow

20 inmates or prison staff.” Id.

21

Defendants contend that accommodating PLN’s First Amendment right to send

22 letter mail would double the time spent on mail inspection, thus necessitating significant

23 allocation of the guards time to mail inspection. (Opp’n 7.) Defendants argue that an

24 increased amount of time dedicated to mail inspection would detract from the deputies

25 “responsibilities in all other areas of facility security and inmate attention.” (Id. 8.)

26 Plaintiff responds that the current policy offers an expedited processing time not because

27 it takes significantly longer to inspect a letter than a postcard, but instead because regular

28 enveloped mail no longer comes to the facilities. (Pl.’s Reply 4, 5.)

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1

Defendants have set forth declarations from deputies at each of the seven County

2 jail facilities which purport to demonstrate that the time required to process incoming

3 mail has been reduced since the implementation of the postcard-only policy. (Opp’n. 7,

4 8; McFadden Decl. ¶¶ 4-6, 10-11; Lord Decl.; Gallegos Decl.; Maeda Decl.) The

5 declarations from the various deputies note that since the policy change, processing the

6 mail takes approximately half the time. Id. The basis of this increased efficiency,

7 however, is linked to a reduction in the number of pages subject to inspection, not to any

8 increased speed derived from not having to open an envelope. With nearly identical

9 language, the declarations fail to state that time is saved due to no longer needing to

10 open envelopes. Instead, each of the declarations state that the reduction in time arises

11 from a reduction in the number of pages needed to review. (See e.g. Decl. Gallegos ¶ 8.)

12

Thus, County jails derive an increased efficiency from the postcard-only policy

13 because less pages of correspondence are coming into the facilities, thereby requiring

14 less items to undergo inspection. Defendants have submitted no evidence that the policy

15 would maintain a similarly efficient allocation of jail resources if the same amount of

16 written material were to be received on postcards as was received under the old policy

17 allowing letter mail. In fact, the Ninth Circuit has rejected the argument that burdens,

18 such as these, are a valid rationale for limiting First Amendment protected publications

19 sent to prisoners. See, e.g., Lehman, 397 F.3d at 700 (rejecting regulation designed to

20 reduce volume of mail); Cook, 238 F.3d at 1151 (9th Cir. 2001). Accordingly, the third

21 Turner factor supports the conclusion that the postcard-only policy unreasonably

22 infringes PLN’s First Amendment rights.

23

24

d. Existence of Easy and Obvious Alternatives

25

The final Turner factor requires the court to determine “whether the existence of

26 easy and obvious alternatives indicates that the regulation is an exaggerated response by

27 prison officials.” Cook, 238 F.3d at 1149. While Turner does not require that

28 defendants adopt the least restrictive alternative, a ready alternative that accommodates

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1 plaintiff’s rights at “de minimis cost to valid penological interests” serves as evidence

2 that the regulation does not satisfy the reasonable relationship standard. Ventura, 2014

3 WL 2736103 (citing Turner, 482 U.S. at 91.) Further, “[t]he policies followed at other

4 well-run institutions are relevant to a determination of the need for a particular type of

5 restriction.” Procunier v. Martinez, 416 U.S. 396, 414 n. 14 (1974).

6

Plaintiff argues that the County jails’ prior mail policy exists as an easy and

7 obvious alternative. (Pl.’s Mot.12.) Defendants fail to directly address this contention,

8 but argue that the policy is not an exaggerated response to prison safety concerns.

9 (Opp’n at 8.)

10

Here, PLN argues that the County’s prior mail policy of removing correspondence

11 from its envelope, reviewing the contents for contraband, and delivering it to its intended

12 recipient, is a ready alternative to the current policy. (Pl.’s Mot. 12.) The fact that the

13 Federal Bureau of Prisons, as well as numerous other counties within California

14 (including Los Angeles County Sheriff’s Office, the largest jail system in the country)

15 are able to accommodate letter mail without compromising the security of the

16 institutions, suggests that the County jails’ postcard-only policy is an exaggerated

17 response. See Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001) (citing Martinez, 416

18 U.S. at 414) (noting that “the policies followed at othe rwell-run institutions” can swerve

19 as evidence tha an easy and obvious alternative exits). Defendants argue that “policy has

20 shown to be effective without limiting in any real manner communication with inmates.”

21 (Opp’n 9.) However, as previously noted, the policy does limit meaningful

22 communication with County inmates. Thus, the final Turner factor strongly suggests

23 that the County jails’ postcard-only policy infringes on PLN’s First Amendment rights.

24

Based on the foregoing, all four of the Turner factors weigh in PLN’s favor. As

25 such, PLN is likely to succeed on the merits with respect to its First Amendment claim

26 regarding the postcard-only policy.

27 //

28 //

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1

2. Likelihood of Irreparable Harm

2

PLN claims it will suffer irreparable harm in the absence of preliminary relief. In

3 opposition, Defendants suggest that “the only harm Plaintiff suffers is financial.” (Opp’n

4 11.) However, both the Supreme Court and the Ninth Circuit have held that “the loss of

5 First Amendment freedoms, for even minimal periods of time, unquestionably constitutes

6 irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Thalheimer v. City of San

7 Diego, 645 F.3d 1109, 1128 (9th Cir. 2011). Thus, PLN has established that the

8 postcard-only policy presents a likelihood of irreparable harm because the policy

9 prevents PLN from exercising its First Amendment freedoms.

10

11

3. Balance of Equities

12

San Diego County jails have accepted letter mail in the past and have not

13 demonstrated that reverting to such a policy will increase the security risk within the jail

14 facilities or cause undue harm. Rescinding the postcard-only mail policy may result in

15 an increase in the amount of time spent inspecting the incoming mail, however, when

16 weighed against the ongoing, concrete harm suffered by PLN and others attempting to

17 correspond with County inmates, the balance of equities tips in PLN’s favor. See PLN v.

18 Columbia I, 2012 WL 1936108 at *12 (D. Or. May 29, 2012); PLN v. County of Ventura,

19 2014 WL 2736103 *8.

20

21

4. Public Interest

22

The Court “must balance the competing claims of injury and must consider the

23 effect on each party” and “should pay particular regard for the public consequences in

24 employing the extraordinary remedy of injunction.” Winder, 555 U.S. at 24. “The

25 public interest inquiry primarily addresses impact on non-parties rather than parties.”

26 Sammartano v. First Judicial Ct., 303 F.3d 959, 974 (9th Cir. 2002), abrogated in part

27 on other grounds by Winter, 55 U.S. at 24. The First Amendment furthers a public

28 interest and courts have “constantly recognized the ‘significant public interest’ in

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1 upholding free speech principles.” Klein v. City of San Clemente, 584 F.3d 1208 (9th

2 Cir. 2009) (quoting Sammartano, 303 F.3d at 974).

3

Defendants argue that “nothing about the jail policies affect dissemination of

4 information or ideas; only the form is relegated, and only in a very minor manner.”

5 (Opp’n 11-12.) However, the postcard-only policy regulates the form of correspondence

6 to such an extent as to severely limit the dissemination of ideas and information. By

7 limiting correspondence to a postcard or one-page email, the County jails’ postcard-only

8 mail policy has effectively truncated the press and public’s ability to disseminate and

9 exchange meaningful information on issues of public concern. In light of the public’s

10 general interest in “upholding free speech principles,” and because the injunction will

11 directly benefit other members of the public who wish to send correspondence longer

12 than a postcard to San Diego county inmates, this factor favors PLN.

13

14

B. Book Size Limitation

15

Plaintiff additionally seeks an injunction to prevent the enforcement of the County

16 jails’ size restrictions for mailed soft-cover books. Jail officials have rejected the

17 delivery of The Habeas Citebook, a book published by PLN, on at least eight occasions

18 due to the size restriction. (Wright Decl. ¶ 8.) Applying the four Turner factors set forth

19 above, this Court finds that PLN has not demonstrated a likelihood of success on the

20 merits and thus deny Plaintiff’s motion for a preliminary injunction on this ground.

21

22

1. Rational Relationship to Legitimate Penological Objective

23

First, PLN argues that “[t]he 6" x 9" x 2" size restriction has no correlation to

24 preventing the introduction of contraband into a correctional facility.” (Pl.’s Mot. 14.)

25 PLN states that the “arbitrary and irrational policy” is not rationally related to legitimate

26 penological objectives of the County. (Id.) Defendants argue the size limitations is

27 based on “experience of having books used as bludgeoning weapons.” (Def. Resp. 9;

28 Miller Decl., ¶¶ 13-16.) Specifically, the 6" x 9" x 2" size does not offer “sufficient size

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1 and length for the book to be soaked, dried and hardened into a usable weapon.” (Miller

2 Decl., ¶¶ 13-16.)

3

Unlike the postcard-only mail policy, PLN has put forth no evidence challenging

4 the constitutionality of the soft-cover book size limitation. In PLN’s motion and

5 supporting declarations, PLN only argues that the size restriction “has no correlation to

6 preventing the introduction of contraband” into the facility. (Pl.’s Mot. 14; Clark Decl. ¶

7 36:9-13.) This argument misses the mark, as Defendants justify this rule by pointing out

8 that books of this size can be used as weapons. (Def. Resp. 9; Miller Decl., ¶¶ 13-16.)

9

In its reply, PLN attacks the weaponization justification by claiming that (1) it is

10 unclear and contradictory and (2) such books do not pose a significant security risk.

11 With respect to the first argument, the policy is not rendered contradictory if the

12 Defendants reserve the right to waive the rule if they deem the book to be safe. Of

13 course, books that exceed this size will differ in size and thickness, which could

14 potentially serve as the basis for waiving the size restriction. Moreover, the type of

15 material the book is made of, whether it be a more flexible cover, or thicker pages, may

16 account for an alternative basis to waive the restriction. Indeed, as PLN itself notes,

17 magazines of similar size to The Habeas Citebook are regularly allowed within the jails.

18 In addition, the policy is very clear: it prohibits all books over 6" x 9" x 2".

19

With respect to the second argument, Mr. Clark’s conclusion that “he has never

20 heard of a book being soaked in the toilet and then used as a weapon” must be compared

21 to Defendants declaration to the contrary. (Clark Reply Decl. ¶ 13; Miller Decl. ¶ 14 (“It

22 is not uncommon for inmates to create weapons by rolling up magazines or paper, then

23 soaking them in the toilet so they become heavy with water, drying them out, and then

24 using the resulting dried roll of paper as a bludgeoning instrument.”)) PLN does not

25 dispute this directly, but instead attempts to gloss over the issue by pointing out that

26 Defendants do not point to a specific instance where a book was turned into a

27 bludgeoning instrument, while ignoring the fact that Defendants have presented evidence

28 that it is “not uncommon.” When taken as a whole, Defendants have set forth an

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1 “intuitive, common-sense connection” between its asserted objective and the book size

2 limitation, and PLN has failed to present evidence refuting that connection. See Frost v.

3 Symington, 197 F.3d 348, 356 (9th Cir. 1999); Cook, 238 F.3d at 1150. Thus, the first 4 Turner factor weighs in favor of the size limitation2.

5

6

2. Availability of Alternative Avenues for Exercise of Asserted Right

7

Second, alternative avenues exist that allow PLN to exercise its First Amendment

8 right. PLN argues that the book size restriction “leaves no reasonable alternative means

9 of distributing the many titles printed in formats larger than 6" x 9" x 2".” (Pl.’s Mot.

10 14.) Defendants counter that many alternative means exist that allow PLN to

11 communicate with inmates. By PLN’s own admission, PLN publishes “approximately

12 50 books” and only one of these books, The Habeas Citebook, has been rejected by Jail

13 officials for violation of the size restriction. (Wright Decl., ¶13.) PLN claims that

14 publishing a special version of The Habeas Citebook for the County Jail would be “cost-

15 prohibitive and infeasible.” (Id. at ¶17.) However, the vast majority of books published

16 by PLN fall within the permissible size regulations, demonstrating PLN’s ability to

17 publish books within the acceptable size for the County Jails. (Id. at ¶13.) Although the

18 size restriction prevents PLN from sending books over 6" x 9" x 2", the existence of a

19 waiver process, and the fact that 49 of the 50 books published by PLN fall within the

20 restriction demonstrates that the County jails policy does not significantly limit First

21 Amendment communication. The Court notes that there are likely costs associated with 22 changing the format of a book3, but “alternative means [of exercising the right] need not

23 be ideal”; “they need only be available.” Overton, 539 U.S. at 135. Accordingly, on

24 balance, the second Turner factor favors the County.

25 2 PLN does not dispute that safety and security is a legitimate and neutral penological
26 interest.

27

3PLN alludes to costs associated with changing book formats, but presents no evidence

supporting this claim. Therefore, the Court is prevented from considering these costs in any 28 detail in its analysis.

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1

C. Impact of Accommodation on Guards, Prisoners, and the

2

Allocation of Prison Resources

3

Third, allowing PLN to send books larger than the size restriction would place

4 only a small burden on jail officials, other inmates, or the allocation of resources.

5 Defendant has failed to directly address any of the claims made by PLN regarding the

6 burden placed on the County jails by allowing the size restrictions to be altered.

7 However, Defendants’ Opposition implies that the potential use of larger soft-cover

8 books as weapon increases the possibility of injuries to both guards and prisoners. The

9 potential for these books to be turned into weapons additionally increases the vigilance

10 necessary on the part of jail officials to ensure the books are used solely as reading

11 material. In totality, the third Turner factor tips slightly in favor of PLN.

12

13

D. Existence of Easy and Obvious Alternatives

14

Fourth, PLN initially argues that Defendants need only inspect all incoming books

15 for contraband as an alternative to the size restriction. As explained above, this

16 argument does not address the weaponization justification that Defendants provide.

17 Then, in the reply, PLN only argues that it “of course, cannot force publishers to change

18 the size of books they publish, nor will publishers republish books in a different size on a

19 account of a bizarre rule at one county jail,” implying that it would be impossible to

20 provide prisoners with the information in the book if the size limitation is enforced.

21 (Reply 9.) Unfortunately, PLN provides no evidence to support this claim. Thus, the

22 fourth Turner factor favors Defendants.

23

Based on the foregoing, three of the four Turner factors weigh in favor of the

24 Defendants. As such, PLN has not established a likelihood of success on its claim that

25 the soft-cover book size restrictions violate its First Amendment rights.

26 //

27 //

28 //

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1 IV. Due Process

2

PLN argues that Defendants have violated the Fourteenth Amendment Due

3 Process Clause by failing to provide them with adequate notice and an opportunity to

4 appeal their censorship decisions. (Pl.’s Mot. 16.) Defendants counter, suggesting that

5 the “Sheriff has been in the process of developing a policy amendment adding a formal

6 appeal procedure which will be in place before this injunction hearing.” (Opp’n 10.)

7 Thus, according to Defendants, there is no reason for an injunction because there is no

8 threat that PLN will be harmed in the future. (Id.)

9

The “decision to censor or withhold delivery of a particular letter must be

10 accompanied by minimum procedural safeguards.” Procunier, 416 U.S. at 417.

11 Guarantees of due process apply only when the interest at stake is a constitutionally

12 protected liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 569

13 (1972). “The Supreme Court has held that ‘[t]he interest of prisoners and their

14 correspondents in uncensored communication by letter, grounded as it is in the First

15 Amendment, is plainly a “liberty” interest within the meaning of the Fourteenth

16 Amendment even though qualified of necessity by the circumstance of imprisonment.’

17 This liberty interest attaches not only to communications by letter, but also to a

18 prisoner’s receipt of subscription publications.” Krug v. Lutz, 329 F.3d 692, 697 (9th

19 Cir. 2003) (citations omitted).

20

The parties have not presented any Ninth Circuit or Supreme Court authority, and

21 the Court is not aware of any, that identifies the “minimum procedural safeguards” that

22 publishers seeking to distribute their materials to prisoners are entitled to. However,

23 other circuit courts have addressed this issue. Specifically, courts have held that

24 “publishers are entitled to notice and an opportunity to be heard when their publications

25 are disapproved for receipt by inmate-subscribers.” Montcalm Publ’g Co. v. Beck, 80

26 F.3d 105, 109 (4th Cir. 1996); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir.

27 2004).

28

Here, upon rejection, items were stamped “RETURN TO SENDER;” “RTS;” or

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1 “UNACCEPTABLE MAIL.” (Wright Decl., Ex. B-I.) In other cases, The Habeas

2 Citebook was returned for being too large, and in other instances because it did not come

3 from the publisher, despite the fact that PLN is the publisher of the book. (Id.) PLN

4 presents unrefuted evidence that hundreds of other items were rejected without any

5 notice to PLN. (Id. ¶ 11.) Plaintiff has never contacted the jail staff or administration

6 regarding the distribution of its material. (Miller Decl. ¶¶ 15, 17, 19.) Additionally,

7 Defendants are currently in the process of modifying the appeal procedure. (Miller Decl.

8 ¶ 15, Ex. B.)

9

Given the evidence presented, the Court finds that Defendants provide insufficient

10 notice to PLN regarding the rejection of their materials, if they provide notice at all. The

11 information that Defendants have allegedly provided (“RETURN TO SENDER,”

12 “UNACCEPTABLE MAIL,” etc.) provide no notice to PLN as to why the materials were

13 rejected. This renders it impossible for PLN to challenge the basis of the refusals.

14 Defendants muster no argument as to why this would amount to sufficient notice.

15

Instead, Defendants focus on the fact that they are currently working on

16 developing an appeal procedure for these rejections. By making this argument,

17 Defendants essentially concede that they have not provided an adequate appeal process

18 for PLN. Defendants attempt to deflect this problem by suggesting that PLN has never

19 contacted them regarding their materials, and that the Defendants are working on a new

20 policy. These arguments miss the mark.

21

First, the fact that Defendants are working to amend the appeal process does not

22 obviate the possibility that the amended appeal process will still be constitutionally

23 insufficient. Friends of Earth, Inc. V. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190

24 (2000) (holding that “a defendant claiming that its voluntary compliance moots a case

25 bears the formidable burden of showing that it is absolutely clear the allegedly wrongful

26 behavior could not reasonably be expected to recur”). Second, absent an injunction,

27 Defendants could theoretically revert to their unconstitutional behavior. FTC v.

28 Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir. 1999) (explaining that injunctive

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1 relief is appropriate where the “defendant is free to return to its illegal action at any

2 time”); see also Ventura, 2014 WL 2519402, at * 9 (injunction not obviated by

3 discontinuance of policies).

4

In light of the foregoing, the Court finds that PLN has established a likelihood of

5 success on the merits of their due process claim. The analysis of the remaining Winter

6 factors parallels the same above. Therefore, the Court GRANTS PLN’s motion for

7 preliminary injunction with respect to its Fourteenth Amendment claim.

8

9

10 V. CONCLUSION & ORDER

11

In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART

12 Plaintiff’s motion for preliminary injunction, and ORDERS AS FOLLOWS:

13
14 1.
15 16 17 18 19 20 21
22 2.
23 24 25 26 27 28

Defendant County of San Diego (the “County”) and individual Defendants GORE, MILLER, BROWN, and their successors, officers, agents, servants, employees, and attorneys, and all others in active concert or participation with them who receive actual notice of this injunction by personal service or otherwise (hereinafter referred to collectively as “Defendants”), SHALL suspend enforcement of the postcard-only policy for incoming mail no later than May 21, 2015. Defendants shall not refuse to deliver correspondence sent to inmates at the County's jails on the ground that correspondence is not written on a postcard. Defendants shall provide written notice and an administrative appeal process to senders and inmates when Defendants refuse to deliver publications and correspondence to inmates at the County’s jails. Although the Court denied PLN’s motion to enjoin the size restriction, the County’s implementation and enforcement of the size restriction must still comply with due process. Within 30 days of issuance of this order, the parties shall confer regarding the specific policy, procedure, and forms for providing notice and an appeal process.

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1 3. This injunction in no way prohibits the Department from enforcing the size

2

restriction.

3 4. The bond requirement is waived.

4 5. No person who has notice of this injunction shall fail to comply with it, nor shall

5

any person subvert the injunction by any sham, indirection or other artifice.

6 IT IS SO ORDERED.

7
DATED: May 7, 2015
8
9
10

M. James Lorenz United States District Court Judge

11

12

13 14 15 16 17 18 19 20 21 22 23 24

25

26

27

28

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 Case 3:14-cv-02417-L-NLS Document 60 Filed 11/18/15 Page 1 of 3

[2890062-1]

1 ERNEST GALVAN – 196065

BLAKE THOMPSON – 255600

2 JENNY S. YELIN – 273601

ROSEN BIEN GALVAN & GRUNFELD LLP

3 50 Fremont Street, 19th Floor

San Francisco, California 94105-2235

4 Telephone: (415) 433-6830

Facsimile: (415) 433-7104

5 Email: egalvan@rbgg.com

bthompson@rbgg.com

6

jyelin@rbgg.com

7 JULIA YOO – 231163

GRACE S. JUN – 287973

8 IREDALE & YOO APC

105 West “F” Street, 4th Floor

9 San Diego, California 92101-6087

Telephone: (619) 233-1525

10 Facsimile: (619) 233-3221

Email: jyoo@iredalelaw.com

11

gjun@iredalelaw.com

12 LANCE WEBER – Fla. Bar No. 104550*

SABARISH NEELAKANTA – Fla. Bar No. 26623*

13 HUMAN RIGHTS DEFENSE CENTER

Post Office Box 1151

14 Lake Worth, Florida 33460-1151

Telephone: (561) 360-2523

15 Facsimile: (866) 735-7136

Email: lweber@humanrightsdefensecenter.org

16

sneelakanta@humanrightsdefensecenter.org

17 * Admitted Pro Hac Vice

18 Attorneys for Plaintiff

19

UNITED STATES DISTRICT COURT

20

SOUTHERN DISTRICT OF CALIFORNIA

21 PRISON LEGAL NEWS, a project of the Human Rights Defense Center,
22 Plaintiff,
23 v.
24 COUNTY OF SAN DIEGO,
25 WILLIAM D. GORE, RICH MILLER, WILL BROWN, in their individual and
26 official capacities; DOES 1-10, in their individual and official capacities,
27 Defendants.
28

Case No. 3:14-cv-02417-L-NLS Judge: Hon. M. James Lorenz JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT OF EQUITABLE CLAIMS Civil Rule 7.2 Judge: M. James Lorenz No Oral Argument Pursuant to Civil Rule 7.1(d)(1)

3:14-cv-02417-L-NLS JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT OF EQUITABLE CLAIMS

Case 3:14-cv-02417-L-NLS Document 60 Filed 11/18/15 Page 2 of 3

[2890062-1]

1

The parties have reached a settlement. The parties jointly request that the

2 Court enter an Order Approving and Entering Settlement Agreement and Retaining

3 Jurisdiction, which addresses the prospective relief claims. See Exhibit 1 hereto

4 (Settlement Agreement of Equitable Claims).

5

The parties have also settled all claims for damages, and have executed a

6 separate settlement agreement for damages claims. Upon satisfaction of the

7 monetary terms of the separate settlement agreement, the parties will file a Joint

8 Motion to dismiss the damages claims.

9

10 DATED: November 18, 2015 Respectfully submitted,

11

ROSEN BIEN GALVAN & GRUNFELD LLP

12

13

By: /s/ Ernest Galvan Ernest Galvan

14

Attorneys for Plaintiff 15

16 DATED: November 18, 2015 17

THOMAS MONTGOMERY, COUNTY COUNSEL

18

By: /s/ James M. Chapin

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James M. Chapin

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Attorneys for Defendants

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3:14-cv-02417-L-NLS

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT OF EQUITABLE CLAIMS

Case 3:14-cv-02417-L-NLS Document 60 Filed 11/18/15 Page 3 of 3

[2890062-1]

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SIGNATURE CERTIFICATION

2

Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative

3 Policies and Procedures Manual, I hereby certify that the content of this document is

4 acceptable to James M. Chapin, counsel for Defendants County of San Diego et al.,

5 and that I have obtained Mr. Chapin’s authorization to affix his electronic signature

6 to this document.

7

8 DATED: November 18, 2015 9

/s/ Ernest Galvan Ernest Galvan

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3:14-cv-02417-L-NLS

JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT OF EQUITABLE CLAIMS

Case 3:14-cv-02417-L-NLS Document 60-1 Filed 11/18/15 Page 1 of 8
EXHIBIT

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Case 3:14-cv-02417-L-NLS Document 60-2 Filed 11/18/15 Page 1 of 2

[2890064-1]

1 ERNEST GALVAN – 196065

BLAKE THOMPSON – 255600

2 JENNY S. YELIN – 273601

ROSEN BIEN GALVAN & GRUNFELD LLP

3 315 Montgomery Street, Tenth Floor

San Francisco, California 94104-1823

4 Telephone: (415) 433-6830

Facsimile: (415) 433-7104

5 Email: egalvan@rbgg.com

bthompson@rbgg.com

6

jyelin@rbgg.com

7 JULIA YOO – 231163 IREDALE & YOO APC
8 105 West “F” Street, 4th Floor San Diego, California 92101-6087
9 Telephone: (619) 233-1525 Facsimile: (619) 233-3221
10 Email: jyoo@iredalelaw.com

11 LANCE WEBER – Fla. Bar No. 104550*

SABARISH NEELAKANTA – Fla. Bar No. 26623*

12 HUMAN RIGHTS DEFENSE CENTER

Post Office Box 1151

13 Lake Worth, Florida 33460-1151

Telephone: (561) 360-2523

14 Facsimile: (866) 735-7136

Email: lweber@humanrightsdefensecenter.org

15

sneelakanta@humanrightsdefensecenter.org

16 * Admitted Pro Hac Vice

17 Attorneys for Plaintiff

18

UNITED STATES DISTRICT COURT

19

SOUTHERN DISTRICT OF CALIFORNIA

20

21 PRISON LEGAL NEWS, a project of the Human Rights Defense Center,
22 Plaintiff,
23 v.
24 COUNTY OF SAN DIEGO,
25 WILLIAM D. GORE, RICH MILLER, WILL BROWN, in their individual and
26 official capacities; DOES 1-10, in their individual and official capacities,
27 Defendants.
28

Case No. 3:14-cv-02417-L-NLS CERTIFICATE OF SERVICE Judge: Hon. M. James Lorenz
Trial Date: None Set

CERTIFICATE OF SERVICE

3:14-cv-02417-L-NLS

Case 3:14-cv-02417-L-NLS Document 60-2 Filed 11/18/15 Page 2 of 2

[2890064-1]

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At the time of service, I was over 18 years of age and not a party to this action. I

am employed in the County of San Francisco, State of California. My business address is 2 315 Montgomery Street, Tenth Floor, San Francisco, CA 94104-1823.

3

On November 18, 2015, I served true copies of the following document(s) described

4 as:

5 x JOINT MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT OF

6

EQUITABLE CLAIMS

7 on the interested parties in this action in the following manner:

8

X (BY CM/ECF) I caused to be transmitted a copy of the foregoing

document(s) this date via the United States District Court’s ECF System, which

9

electronically notifies all counsel as follows:

10

Attorneys for Defendants:

11

James M Chapin james.chapin@sdcounty.ca.gov

12

I declare under penalty of perjury under the laws of the United States of America

13 that the foregoing is true and correct and that I am a member of the bar of this Court.

14

Executed on November 18, 2015, at San Francisco, California.

15

/s/ Ernest Galvan

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Ernest Galvan

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1
CERTIFICATE OF SERVICE

3:14-cv-02417-L-NLS

 
 Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 1 of 9
CLOSED,ENE
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:14−cv−02417−L−NLS

Prison Legal News v. County of San Diego et al Assigned to: Judge M. James Lorenz Referred to: Magistrate Judge Nita L. Stormes Case in other court: USCA, 15−55860 Cause: 42:1983bv Bivens Non−Prisoner
Plaintiff

Date Filed: 10/09/2014 Date Terminated: 02/07/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Prison Legal News a project of the Human Rights Defense Center

represented by Ernest Galvan Rosen Bien Galvan & Grunfeld, LLP. 50 Fremont Street, 19th Floor San Francisco, CA 94105 415−433−6830 Email: egalvan@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lance Theodore Weber Human Rights Defense Center PO Box 1151 Lake Worth, FL 33460 561−360−2523 Fax: 866−735−7136 Email: lweber@humanrightsdefensecenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sabarish Neelakanta Human Rights Defense Center P.O. Box 1151 Lake, FL 33460 561−360−2523 Email: sneelakanta@humanrightsdefensecenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jenny Snay Yelin Rosen Bien Galvan & Grunfeld, LLP 50 Fremont Street, 19th Floor San Francisco, CA 94105 415−433−6830 Fax: 415−433−7104 Email: jyelin@rbgg.com ATTORNEY TO BE NOTICED

Julia Yoo Iredale & Yoo, APC 105 West F Street 4th Floor San Diego, CA 92101−6036 (619)233−1525 Fax: (619)233−3221 Email: jyoo@iredalelaw.com ATTORNEY TO BE NOTICED

V.

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 2 of 9

Defendant
County of San Diego in their individual and official capacities

represented by James M Chapin County of San Diego Office of County Counsel 1600 Pacific Highway Room 355 San Diego, CA 92101−2469 (619)531−5244 Fax: 619−531−6005 Email: james.chapin@sdcounty.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
William D. Gore in their individual and official capacities

represented by James M Chapin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rich Miller in their individual and official capacities TERMINATED: 05/18/2016

represented by James M Chapin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Will Brown in their individual and official capacities TERMINATED: 05/18/2016

represented by James M Chapin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Does 1−10 in their individual and official capacities TERMINATED: 05/18/2016

Date Filed 10/09/2014
10/09/2014 10/16/2014 10/16/2014 10/16/2014

# Docket Text
1 COMPLAINT with Jury Demand against Will Brown, County of San Diego, Does 1−10, William D. Gore, Rich Miller ( Filing fee $ 400 receipt number 0974−7457803.), filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet)
The new case number is 3:14−cv−02417−L−NLS. Judge M. James Lorenz and Magistrate Judge Nita L. Stormes are assigned to the case. (Galvan, Ernest)(cxl)(av1). (Entered: 10/09/2014)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (cxl) (av1). (Entered: 10/09/2014)
3 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−7473194.) (Application to be reviewed by Clerk.) (Neelakanta, Sabarish) (vam). (Entered: 10/16/2014)
4 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974−7473237.) (Application to be reviewed by Clerk.) (Weber, Lance) (vam). (Entered: 10/16/2014)
5 NOTICE of Appearance by Julia Yoo on behalf of Prison Legal News (Attachments: # 1 Proof of Service)(Yoo, Julia)Attorney Julia Yoo added to party Prison Legal News(pty:pla) (sjt). (Entered: 10/16/2014)

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 3 of 9

10/17/2014 10/17/2014 10/17/2014
10/20/2014 10/20/2014 10/20/2014 10/21/2014 10/21/2014 10/22/2014 10/23/2014 10/23/2014 10/24/2014 10/27/2014 11/10/2014 11/10/2014

6 PRO HAC APPROVED 3 : Sabarish Neelakanta appearing for Plaintiff Prison Legal News. (no document attached) (vam) (Entered: 10/17/2014)
7 PRO HAC APPROVED 4 : Lance Theodore Weber appearing for Plaintiff Prison Legal News. (no document attached) (vam) (Entered: 10/17/2014)
8 MOTION for Preliminary Injunction by Prison Legal News. (Attachments: # 1 Memo of Points and Authorities in Support of Plaintiff's Motion for Preliminary Injunction, # 2 Index of Exhibits Filed in Support Of Plaintiff's Motion for Preliminary Injunction, # 3 Declaration of John Clark in Support of Plaintiff's Motion for Preliminary Injunction, # 4 Table of Contents of Exhibits to Declaration of John Clark, # 5 Exhibit A to the Declaration of John Clark, # 6 Exhibit B to the Declaration of John Clark, # 7 Declaration of Paul Wright in Support of Plaintiff's Motion for Preliminary Injunction, # 8 Table of Contents of Exhibits to Declaration of Paul Wright, # 9 Exhibit A to the Declaration of Paul Wright, # 10 Exhibit B to the Declaration of Paul Wright, # 11 Exhibit C to the Declaration of Paul Wright, # 12 Exhibit D to the Declaration of Paul Wright, # 13 Exhibit E to the Declaration of Paul Wright, # 14 Exhibit F to the Declaration of Paul Wright, # 15 Exhibit G to the Declaration of Paul Wright, # 16 Exhibit H to the Declaration of Paul Wright, # 17 Exhibit I to the Declaration of Paul Wright, # 18 Exhibit J to the Declaration of Paul Wright, # 19 Exhibit K to the Declaration of Paul Wright, # 20 Exhibit L to the Declaration of Paul Wright, # 21 Exhibit M to the Declaration of Paul Wright, # 22 Exhibit N to the Declaration of Paul Wright, # 23 Exhibit O to the Declaration of Paul Wright, # 24 Proof of Service)(Galvan, Ernest) (sjt). (Entered: 10/17/2014)
9 SUMMONS Returned Executed by Prison Legal News. County of San Diego served. (Yoo, Julia) (sjt). (Entered: 10/20/2014)
10 **DOCUMENT WITHDRAWN PER NOTICE 12 ** SUMMONS Returned Executed by Prison Legal News. William D. Gore served. (Yoo, Julia) (sjt). Modified on 10/22/2014 (sjt). (Entered: 10/20/2014)
11 CERTIFICATE OF SERVICE by Prison Legal News re 8 MOTION for Preliminary Injunction (Yoo, Julia) (sjt). (Entered: 10/20/2014)
12 NOTICE of Withdrawal by Prison Legal News re 10 Summons Returned Executed (Attachments: # 1 Proof of Service)(Yoo, Julia) Modified on 10/22/2014 (sjt). (Entered: 10/21/2014)
13 SUMMONS Returned Executed by Prison Legal News. William D. Gore served. (Yoo, Julia) (sjt). (Entered: 10/21/2014)
14 Joint MOTION to Continue Preliminary Injuction Hearing by County of San Diego, William D. Gore. (Attachments: # 1 Proof of Service)(Chapin, James)Attorney James M Chapin added to party County of San Diego(pty:dft), Attorney James M Chapin added to party William D. Gore (pty:dft) (sjt). (Entered: 10/22/2014)
15 SUMMONS Returned Executed by Prison Legal News. Rich Miller served. (Yoo, Julia) (sjt). (Entered: 10/23/2014)
16 SUMMONS Returned Executed by Prison Legal News. Will Brown served. (Yoo, Julia) (sjt). (Entered: 10/23/2014)
17 CERTIFICATE OF SERVICE by Prison Legal News re 8 MOTION for Preliminary Injunction (Yoo, Julia) (sjt). (Entered: 10/24/2014)
18 ORDER granting 14 Joint Motion to Continue Hearing and Associated Dates. The hearing date is continued to January 26, 2015. Responses due by 12/22/2014 Replies due by 1/19/2015. Signed by Judge M. James Lorenz on 10/27/2014. (sjt) (Entered: 10/27/2014)
19 ANSWER to 1 Complaint, with Jury Demand by Will Brown, County of San Diego, William D. Gore, Rich Miller. (Attachments: # 1 Proof of Service)(Chapin, James)Attorney James M Chapin added to party Will Brown(pty:dft), Attorney James M Chapin added to party Rich Miller(pty:dft) (sjt). (Entered: 11/10/2014)
20 NOTICE AND ORDER for Early Neutral Evaluation Conference. Telephonic Early Neutral Evaluation set for 12/18/2014 02:30 PM before Magistrate Judge Nita L. Stormes. Signed by Magistrate Judge Nita L. Stormes on 11/10/2014.(sjt) (Entered:

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 4 of 9

12/12/2014 12/12/2014 12/15/2014
12/18/2014 12/22/2014
12/23/2014 01/19/2015
01/22/2015 01/22/2015

11/12/2014)
21 AFFIDAVIT in Support re 8 MOTION for Preliminary Injunction of Rachel Stevens filed by Prison Legal News. (Galvan, Ernest) (sjt). (Entered: 12/12/2014)
22 AFFIDAVIT in Support re 8 MOTION for Preliminary Injunction of Carrie Wilkinson filed by Prison Legal News. (Galvan, Ernest) (sjt). (Entered: 12/12/2014)
23 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 22 Affidavit in Support of Motion, 21 Affidavit in Support of Motion, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(g): Documents in support of motion must be filed as attachments to the motion, ECF 2(k): Exhibits not filed as separate attachments and missing table of contents of exhibits, Civ. L. Rule 5.2 and EFC 2(d): No Proof of Service. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non−compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 12/15/2014.(sjt) (Entered: 12/15/2014)
25 Minute Entry for proceedings held before Magistrate Judge Nita L. Stormes: Early Neutral Evaluation Conference held on 12/18/2014. The case did not settle. Order to follow. (no document attached) (ma) (Entered: 12/23/2014)
24 RESPONSE in Opposition re 8 MOTION for Preliminary Injunction Defendants' Memorandum of Points and Authorities In Opposition to Motion for Preliminary Injunction filed by Will Brown, County of San Diego, William D. Gore, Rich Miller. (Attachments: # 1 Notice of Lodgment In Support of Defendants' Opposition to Preliminary Injunction, # 2 Declaration of Detective THomas J. Byrne In Support of Defendants' Opposition to Preliminary Injunction, # 3 Declaration of Deputy Ricardo Gallegos In Support of Defendants' Opposition to Preliminary Injunction, # 4 Declaration of Deputy John Gehris In Support of Defendants' Opposition to Preliminary Injunction, # 5 Declaration of Deputy Kyle HeinenIn Support of Defendants' Opposition to Preliminary Injunction, # 6 Declaration of Deputy Scott Lord In Support of Defendants' Opposition to Preliminary Injunction, # 7 Declaration of Deputy Manda Maeda In Support of Defendants' Opposition to Preliminary Injunction, # 8 Declaration of Rich Miller In Support of Defendants' Opposition to Preliminary Injunction, # 9 Declaration of Deputy Ronnie McFadden In Support of Defendants' Opposition to Preliminary Injunction, # 10 Proof of Service)(Chapin, James) (sjt). (Entered: 12/22/2014)
26 Order Following ENE. Early Neutral Evaluation Conference held on 12/18/2014. Telephonic Case Management Conference set for 2/13/2015 10:00 AM before Magistrate Judge Nita L. Stormes. Signed by Magistrate Judge Nita L. Stormes on 12/23/2014.(sjt) (Entered: 12/23/2014)
27 REPLY to Response to Motion re 8 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Index of Exhibits Filed in Support of Plaintiff's Reply on Motion for Preliminary Injunction, # 2 Declaration of John L. Clark in Support of Plaintiff's Reply on Motion for Preliminary Injunction, # 3 Table of Contents of Exhibits to Reply Declaration of John L. Clark, # 4 Exhibit A to Reply Declaration of John L. Clark, # 5 Exhibit B to Reply Declaration of John L. Clark, # 6 Declaration of Paul Wright in Support of Plaintiff's Reply on Motion for Preliminary Injunction, # 7 Table of Contents of Exhibits to Reply Declaration of Paul Wright, # 8 Exhibit A to Reply Declaration of Paul Wright, # 9 Declaration of Ellen Marks in Support of Plaintiff's Reply on Motion for Preliminary Injunction, # 10 Table of Contents of Exhibits to Declaration of Ellen Marks, # 11 Exhibit A to Reply Declaration of Ellen Marks, # 12 Declaration of Jeffrey Woodfork, # 13 Supplemental Declaration of Jeffrey Woodfork, # 14 Declaration of Michael Anthony Jones, # 15 Supplemental Declaration of Michael Anthony Jones, # 16 Evidentiary Objections to Evidence Submitted by Defendants in Opposition to Plaintiff's Motion for Preliminary Injunction, # 17 Proof of Service)(Thompson, Robert) (sjt). (Entered: 01/19/2015)
28 **DOCUMENT STRICKEN PER ORDER 31 ** Corporate Disclosure Statement by Prison Legal News. (Thompson, Blake) (sjt). (Main Document 28 replaced on 1/23/2015) Modified to Strike on 1/23/2015 (sjt). (Entered: 01/22/2015)
29 OBJECTION re 27 Reply to Response to Motion Defendants' Opposition to Objections to Evidence filed by Will Brown, County of San Diego, William D. Gore,

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 5 of 9

01/22/2015 01/23/2015
01/23/2015 02/11/2015 02/12/2015 02/12/2015
02/12/2015
02/12/2015 02/12/2015 02/13/2015 02/13/2015 02/24/2015

Rich Miller. (Attachments: # 1 Proof of Service)(Chapin, James) (sjt). (Entered: 01/22/2015)
30 OBJECTION re 27 Reply to Response to Motion,,,,, Defendants' Objections to Plaintiff's Evidence filed by Will Brown, County of San Diego, William D. Gore, Rich Miller. (Attachments: # 1 Proof of Service)(Chapin, James) Modified on 1/23/2015 (sjt). (Entered: 01/22/2015)
31 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 28 Corporate Disclosure Statement, from Plaintiff Prison Legal News. Non−compliance with local rule(s), Civ. L. Rule 5.2 and EFC 2(d): No Proof of Service. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 1/23/2015.(sjt) (Additional attachment(s) added on 1/23/2015: # 1 Rejected Document) (sjt). (Entered: 01/23/2015)
32 Corporate Disclosure Statement by Prison Legal News. (Attachments: # 1 Proof of Service)(Thompson, Blake) (sjt). (Entered: 01/23/2015)
33 **DOCUMENT STRICKEN PER ORDER 35 ** NOTICE OF RELATED CASE(S) by Prison Legal News of case(s) 3:13−cv−02092−WQH−PCL . (Galvan, Ernest) (Low−number Order not prepared, association does not meet criteria)) (sjt). (Main Document 33 replaced on 2/12/2015) (sjt). Modified to strike on 2/12/2015 (sjt). (Entered: 02/11/2015)
34 **DOCUMENT STRICKEN PER ORDER 36 ** NOTICE of Appearance by Jenny Snay Yelin on behalf of Prison Legal News (Yelin, Jenny)Attorney Jenny Snay Yelin added to party Prison Legal News(pty:pla)(sjt). (Main Document 34 replaced on 2/12/2015) (sjt). Modified to Strike on 2/12/2015 (sjt). (Entered: 02/12/2015)
35 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 33 Notice of Related Case,, from Plaintiff Prison Legal News. Non−compliance with local rule(s), Civ. L Rule 5.2 and ECF § 2(d): No proof of service. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 2/12/2015.(sjt) (Additional attachment(s) added on 2/12/2015: # 1 Rejected Document) (sjt). (Entered: 02/12/2015)
36 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 34 Notice of Appearance,, from Plaintiff Prison Legal News. Non−compliance with local rule(s), Civ. L Rule 5.2 and ECF § 2(d): No proof of service. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 2/12/2015.(sjt) (Additional attachment(s) added on 2/12/2015: # 1 Rejected Document) (sjt). (Entered: 02/12/2015)
37 NOTICE of Appearance by Jenny Snay Yelin on behalf of Prison Legal News (Attachments: # 1 Proof of Service of Notice of Appearance)(Yelin, Jenny)Attorney Jenny Snay Yelin added to party Prison Legal News(pty:pla) (sjt). (Entered: 02/12/2015)
38 NOTICE OF RELATED CASE(S) by Prison Legal News of case(s) 3:13−cv−02092−WQH−PCL . (Attachments: # 1 Proof of Service of Notice of Putative Related Case)(Galvan, Ernest)(Low−number Order not prepared, association does not meet criteria)(sjt). (Entered: 02/12/2015)
39 Minute Entry for proceedings held before Magistrate Judge Nita L. Stormes: Case Management Conference held on 2/13/2015. Order to follow. (no document attached) (ma) (Entered: 02/13/2015)
40 SCHEDULING ORDER: Mandatory Settlement Conference set for 3/9/2016 09:30 AM before Magistrate Judge Nita L. Stormes. Proposed Pretrial Order due by 5/16/2016. Final Pretrial Conference set for 5/23/2016 11:00 AM before Judge M. James Lorenz. Signed by Magistrate Judge Nita L. Stormes on 2/13/2015.(sjt) (Entered: 02/13/2015)
41 AFFIDAVIT of Service for Notice of Putative Related Case [Dkt. No. 38] served on Bruce Jones; Stephanie E. Kish, Senior Deputy County Counsel on February 24, 2015,

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 6 of 9

02/26/2015 05/07/2015 05/15/2015 05/18/2015
05/18/2015 06/05/2015
06/05/2015 06/05/2015 06/11/2015 06/12/2015
06/12/2015 07/01/2015 07/02/2015

filed by Prison Legal News. (Galvan, Ernest) (sjt). (Entered: 02/24/2015)
42 NOTICE OF RELATED CASE(S) by Prison Legal News of case(s) 3:14−cv−0102−BAS−KSC . (Attachments: # 1 Proof of Service on counsel for Defendants, # 2 Proof of Service on parties and counsel in Brown v. Gore)(Galvan, Ernest) (Low−number Order not prepared, association does not meet criteria) (sjt). (Entered: 02/26/2015)
43 ORDER granting in part and denying in part 8 Motion for Preliminary Injunction. Signed by Judge M. James Lorenz on 5/7/2015. (sjt) (Entered: 05/07/2015)
44 Joint MOTION for Extension of Time to Amend Pleadings and for Addition of Parties by Prison Legal News. (Attachments: # 1 Proposed Order Granting Joint Motion For Extension of Time for Amendment of Pleadings, Addition of Parties, # 2 Proof of Service Certificate of Service)(Yelin, Jenny)(sjt). (Entered: 05/15/2015)
45 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 44 Joint MOTION for Extension of Time to Amend Pleadings and for Addition of Parties, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(h): Includes a proposed order or requires judges signature. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non−compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 5/18/2015.(sjt) (Entered: 05/18/2015)
46 ORDER granting 44 Joint Motion for Extension of Time to Amend or File Pleadings to June 15, 2015. Signed by Judge M. James Lorenz on 5/18/2015. (sjt) (Entered: 05/18/2015)
47 NOTICE OF INTERLOCUTORY APPEAL to the 9th Circuit as to 43 Order granting in part and denying in part Motion for Preliminary Injunction, by Will Brown, County of San Diego, William D. Gore, Rich Miller. (Filing fee $ 505 receipt number 0974−8138033.) (Attachments: # 1 Representation Statement, # 2 Proof of Service)(Chapin, James). (Modified on 6/5/2015 to edit docket text re linked Order and re attachment #1.) (akr). (Entered: 06/05/2015)
48 USCA Case Number 15−55860 for 47 Notice of Interlocutory Appeal to 9th Circuit, filed by Rich Miller, Will Brown, County of San Diego, William D. Gore. (akr) (Entered: 06/05/2015)
49 USCA Time Schedule Order as to 47 Notice of Interlocutory Appeal to 9th Circuit, filed by Rich Miller, Will Brown, County of San Diego, William D. Gore. (akr) (Entered: 06/05/2015)
50 Joint MOTION for Extension of Time to Amend Pleadings and for Addition of Parties by Prison Legal News. (Attachments: # 1 Proposed Order Granting Joint Motion For Extension of Time for Amendment of Pleadings, Addition of Parties, # 2 Proof of Service of Joint Motion for Extension of Time for Amendment of Pleadings, Addition of Parties)(Yelin, Jenny) (sjt). (Entered: 06/11/2015)
51 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 50 Joint MOTION for Extension of Time to Amend Pleadings and for Addition of Parties, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(h): Includes a proposed order or requires judges signature. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non−compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 6/12/2015.(sjt) (Entered: 06/12/2015)
52 ORDER granting 50 Joint Motion for Extension of Time to Amend or File Pleadings. The Court extends the June 15, 2015 deadline to join other parties, to amend the pleadings, or to file additional pleadings to July 15, 2015. Signed by Judge M. James Lorenz on 6/12/2015. (sjt) (Entered: 06/12/2015)
53 Joint MOTION to Approve Stipulation re: Monell Liability by Prison Legal News. (Attachments: # 1 Proof of Service of Joint Motion to Approve Stipulation Re: Monell Liability)(Yelin, Jenny) (sjt). (Entered: 07/01/2015)
54 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 53 Joint MOTION to Approve Stipulation re: Monell Liability , from

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 7 of 9

09/28/2015 09/29/2015
10/02/2015 11/17/2015 11/18/2015
11/18/2015 11/23/2015 12/04/2015 03/07/2016 03/07/2016

Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF § 2(k): Exhibit not filed as separate attachment. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non−compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 7/2/2015.(sjt) (Entered: 07/02/2015)
55 **DOCUMENT STRICKEN PER ORDER 56 ** NOTICE of Change of Address by Jenny Snay Yelin (Yelin, Jenny) (Discrepancy Pending) (sjt). (Main Document 55 replaced on 9/29/2015) (sjt). Modified to Strike on 9/29/2015 (sjt). (Entered: 09/28/2015)
56 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 55 Notice of Change of Address, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 1(f): An attorney whose e−mail address, mailing address, telephone or fax number has changed must update the information through the CM/ECF utility menu, Civ. L Rule 5.2 and ECF § 2(d): No proof of service. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 9/29/2015.(sjt) (Additional attachment(s) added on 9/29/2015: # 1 Rejected Document) (sjt). (Entered: 09/29/2015)
57 NOTICE of Change of Address by Jenny Snay Yelin (Attachments: # 1 Proof of Service of Notice of Change of Address)(Yelin, Jenny) (sjt). (Entered: 10/02/2015)
58 **DOCUMENT STRICKEN PER ORDER 59 ** Joint MOTION for Settlement Approval (for Settlement Agreement of Equitable Claims) by Prison Legal News. (Attachments: # 1 [Proposed] Order Approving and Entering Settlement Agreement and Retaining Jurisdiction, # 2 Proof of Service)(Galvan, Ernest) (sjt). (Main Document 58 replaced on 11/18/2015) (sjt). Modified to strike on 11/18/2015 (sjt). (Entered: 11/17/2015)
59 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 58 Joint MOTION for Settlement Approval (for Settlement Agreement of Equitable Claims), from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(h): Includes a proposed order or requires judges signature, ECF 2(f): Joint Motion Missing Signature Certification, ECF § 2(k): Exhibit not filed as separate attachment. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 11/17/2015.(sjt) (Additional attachment(s) added on 11/18/2015: # 1 Rejected Document) (sjt). (Entered: 11/18/2015)
60 Joint MOTION for Settlement Approval (for Settlement Agreement of Equitable Claims) by Prison Legal News. (Attachments: # 1 Exhibit 1, # 2 Proof of Service of Joint Motion for Approval of Settlement Agreement of Equitable Claims)(Galvan, Ernest) (sjt). (Entered: 11/18/2015)
61 ORDER of USCA as to 47 Notice of Interlocutory Appeal to 9th Circuit, filed by Rich Miller, Will Brown, County of San Diego, William D. Gore. The USCA is in receipt of the parties' Joint Motion for Dismissal. Pursuant to the agreement of the parties, this appeal is voluntarily dismissed. The parties agree to bear their own costs and attorneys' fees on appeal. A copy of this order shall serve as and for the mandate of the USCA. (akr) (Entered: 11/23/2015)
62 ORDER granting 60 Motion for for Settlement Approval of Equitable Claims. Signed by Judge Thomas J. Whelan for Judge M. James Lorenz on 12/2/2015. (sjt) (Entered: 12/07/2015)
63 **DOCUMENT STRICKEN PER ORDER 66 ** Joint MOTION to Dismiss Individual Defendants and Damages Claims; to Retain Jurisdiction Over Settlement re 62 Order on Motion for Settlement, 60 Joint MOTION for Settlement Approval (for Settlement Agreement of Equitable Claims) by Prison Legal News. (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Main Document 63 replaced on 3/17/2016) (sjt). Modified to Strike on 3/17/2016 (sjt). (Entered: 03/07/2016)
64 Joint MOTION To Cancel Mandatory Settlement Conference and Pretrial Conference Dates by Will Brown, County of San Diego, William D. Gore, Rich Miller. (Chapin,

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 8 of 9

03/07/2016 03/08/2016
04/12/2016 04/14/2016 04/15/2016
05/02/2016 05/02/2016 05/03/2016
05/13/2016 05/13/2016

James)(sjt). (Entered: 03/07/2016)
65 In light of the parties' representation that they settled all claims in this matter, the court vacates the Mandatory Settlement Conference set for 3/9/2016. Signed by Magistrate Judge Nita L. Stormes on 3/7/2016.(no document attached) (ecp) (Entered: 03/07/2016)
66 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 63 Joint MOTION to Dismiss Individual Defendants and Damages Claims; to Retain Jurisdiction Over Settlement re 62 Order on Motion for Settlement, 60 Joint MOTION for Settlement Approval (for Settlement Agreement of Equitable Claims), from Plaintiff Prison Legal News. Non−compliance with local rule(s), Failure to comply with chambers rules regarding retaining jurisdiction over settlement after dismissal. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 3/8/2016.(sjt) (Additional attachment(s) added on 3/17/2016: # 1 Rejected Document) (sjt). (Entered: 03/17/2016)
67 **DOCUMENT STRICKEN PER ORDER 69 ** Joint MOTION to Dismiss Party Individual Defendants and Claims for Damages, and for Retained Jurisdiction by Magistrate Judge by Prison Legal News. (Attachments: # 1 Appendix Consent to Jurisdiction of Magistrate Judge, # 2 Proof of Service)(Galvan, Ernest) (sjt). (Main Document 67 replaced on 4/15/2016) (sjt). Modified to strike on 4/15/2016 (sjt). (Entered: 04/12/2016)
68 In light of the settlement, the court grants the joint motion to vacate the Pretrial Conference. Signed by Magistrate Judge Nita L. Stormes on 4/14/16.(no document attached) (ecp) (Entered: 04/14/2016)
69 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 67 Joint MOTION to Dismiss Party Individual Defendants and Claims for Damages, and for Retained Jurisdiction by Magistrate Judge, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(g): Multiple pleadings in one docket entry not filed Separately, Civ. L. Rule 73.1(b): Consent to magistrate jurisdiction not signed by all parties. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 4/13/2016.(sjt) (Additional attachment(s) added on 4/15/2016: # 1 Rejected Document) (sjt). (Entered: 04/15/2016)
70 **DOCUMENT STRICKEN PER ORDER 72 ** Joint MOTION Joint Consent to Magistrate Judge Jurisdiction by Prison Legal News. (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Main Document 70 replaced on 5/3/2016) (sjt). Modified to Strike on 5/3/2016 (sjt). (Entered: 05/02/2016)
71 **DOCUMENT STRICKEN PER ORDER 72 ** Joint MOTION to Dismiss Party and to Retain Jurisdiction by Prison Legal News. (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Main Document 71 replaced on 5/3/2016) (sjt). Modified to Strike on 5/3/2016 (sjt). (Entered: 05/02/2016)
72 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Rejecting re 71 Joint MOTION to Dismiss Party and to Retain Jurisdiction, 70 Joint MOTION Joint Consent to Magistrate Judge Jurisdiction , from Plaintiff Prison Legal News. Non−compliance with local rule(s), Civ. L. R. 73.1(b): Consent to magistrate jurisdiction not signed by all parties. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by Judge M. James Lorenz on 5/3/2016.(sjt) (Additional attachment(s) added on 5/3/2016: # 1 Rejected Document 70, # 2 Rejected Document 71) (sjt). (Entered: 05/03/2016)
73 NOTICE of Joint Consent to Magistrate Judge Jurisdiction by Prison Legal News (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Entered: 05/13/2016)
74 Joint MOTION to Dismiss Party and to Retain Jurisdiction by Prison Legal News. (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Entered: 05/13/2016)

Case: 3:14-cv-2417 As of: 10/18/2018 08:36 AM PDT 9 of 9

05/18/2016
01/22/2018 01/24/2018 01/26/2018 02/06/2018 02/07/2018
02/07/2018

75 ORDER granting 74 Motion to Dismiss. The Joint Motion is granted pursuant to Federal Rule of Civil Procedure 41(a). Defendants Rich Miller, in his individual and official capacity, Will Brown, in his individual and official capacity, Does 1−10 in their individual and official capacities and William D. Gore in his individual capacity are Dismissed with Prejudice. Pursuant to 28 U.S.C. §636(c) and Civil Local Rule 72.1, the Consent is Approved The Magistrate Judge shall retain jurisdiction over all disputes between and among the parties arising out of the Settlement, including but not limited to the interpretation and enforcement of its terms. Signed by Judge M. James Lorenz on 5/17/2016. (sjt) (Entered: 05/18/2016)
76 Notice of Hearing − Dismissal for Want of Prosecution Pursuant to LR 41.1. Dismissal for Want of Prosecution Pursuant to LR 41.1 Hearing set for 2/26/2018 at 11:00AM in Courtroom 5B before Judge M. James Lorenz. (cge) (Entered: 01/22/2018)
77 Joint MOTION Vacate Hearing Date re 76 Notice of Hearing − Dismissal per LR 41.1 by Prison Legal News. (Attachments: # 1 Proof of Service)(Galvan, Ernest) (sjt). (Entered: 01/24/2018)
78 ORDER denying 77 Joint Motion to Vacate Hearing Date. Signed by Judge M. James Lorenz on 1/26/2018. (sjt) (Entered: 01/26/2018)
79 Joint MOTION for Judgment to Be Entered With Reservation of Jurisdiction by Prison Legal News. (Attachments: # 1 Proposed Judgment)(Galvan, Ernest) (sjt). (Entered: 02/06/2018)
80 Notice of Document Discrepancies and Order Thereon by Judge M. James Lorenz Accepting re 79 Joint MOTION for Judgment to Be Entered With Reservation of Jurisdiction, from Plaintiff Prison Legal News. Non−compliance with local rule(s), ECF 2(h): Includes a proposed order or requires judges signature, Civ. L Rule 5.2 and ECF § 2(d): No Proof of Service. IT IS HEREBY ORDERED: The document is accepted despite the discrepancy noted above. Any further non−compliant documents may be stricken from the record. Signed by Judge M. James Lorenz on 2/7/2018.(sjt) (Entered: 02/07/2018)
81 Order Granting Joint Motion for Entry of Judgment and Stipulated JUDGMENT. This action is hereby dismissed subject to the following reservation of jurisdiction: The Magistrate Judge shall retain jurisdiction over all disputes between and among the parties arising out of the settlement agreement, including but not limited to the interpretation and enforcement of the terms of the settlement agreement. Signed by Judge M. James Lorenz on 2/7/2018.(sjt) (jao). (Entered: 02/07/2018)