Case 1:10-cv-02242-WYD -KLM Document 1 Filed 09/14/10 USDC Colorado Page 1 of 21
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.________________ Michael Jason Martinez; Elizabeth Fritz; Thomas Trujillo; Amber Hugenot; Gary Harrison; Robert Rumpf; and Damian Gradeless on behalf of themselves and all others similarly situated,
Plaintiffs, v. Terry Maketa, in his official capacity as El Paso County Sheriff,
Defendant.
CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION 1. In this action, plaintiffs challenge a new policy of the El Paso County Jail—which went into effect on August 2, 2010—that forbids prisoners to write letters to their parents, children, spouses, domestic partners, fiancées, sweethearts, friends, or to anyone else in the free world who does not fall within the jail’s narrow “legal mail” exception to the newlyimposed ban on outgoing letters. Under the challenged policy, prisoners’ outgoing correspondence is restricted to small 4 x 6 inch postcards supplied by the jail. This new policy severely restricts prisoners’ ability to communicate with persons outside the jail, in
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violation of their rights under the First and Fourteenth Amendments to the United States Constitution and Article II, Sections 10 and 25 of the Colorado Constitution.
2. On behalf of a class of similarly-situated prisoners of the El Paso County Jail, the plaintiffs ask this Court to enjoin the postcard-only policy and declare that it violates their constitutional rights as well as the rights of their free-world correspondents.
JURISDICTION AND VENUE 3. This action arises under the Constitution and laws of the United States, including the First and Fourteenth Amendments and 42 U.S.C. § 1983. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over the claims based on Colorado law pursuant to 28 U.S.C. § 1367. 4. This Court has jurisdiction to issue the declaratory relief requested pursuant to the Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202. 5. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All parties reside within the District of Colorado, and the events described in this Complaint occurred in the District of Colorado.
PARTIES 6. Plaintiff Michael Jason Martinez is an inmate in the El Paso County Jail. 7. Plaintiff Elizabeth Fritz is an inmate in the El Paso County Jail. 8. Plaintiff Thomas Trujillo is an inmate in the El Paso County Jail. 9. Plaintiff Amber Hugenot is an inmate in the El Paso County Jail. 10. Plaintiff Gary Harrison is an inmate in the El Paso County Jail. 11. Plaintiff Robert Rumpf is an inmate in the El Paso County Jail. 12. Plaintiff Damian Gradeless is an inmate in the El Paso County Jail.
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13. Defendant Terry Maketa is the Sheriff of El Paso County and head of the El Paso County Sheriff Office. He is the final policy maker for the El Paso County jail and exercises overall responsibility for the policies and practices of the El Paso County Jail, including the policy challenged in this case. He is sued in his official capacity.
14. Deputies and their supervisors working in the El Paso County Jail are agents and employees of Defendant Maketa.
15. All actions of Defendant Maketa and his employees at issue here are carried out under color of state law.
FACTS 16. The El Paso County Jail is located in Colorado Springs, Colorado. It houses both convicted prisoners and pretrial detainees. Its average daily population is approximately 1300 prisoners. 17. In late July, 2010, the jail staff informed prisoners that beginning August 2, 2010, a new policy would govern prisoners’ outgoing correspondence. The new policy was communicated in a one-page memorandum from Commander William Mistretta that listed as its subject: “Directive 10.04 / Inmate Mail / Post Cards.” Although the memorandum is dated April 20, 2010, it was not circulated to prisoners until some time in the week of July 19, 2010. A copy of the memorandum is attached to this Complaint as Exhibit A. 18. Pursuant to the new policy, “all outgoing personal letter writing materials will consist of 4 x 6 inch post cards. Envelopes and writing paper will no longer be issued to inmates. Inmates will no longer be able to purchase envelopes and writing paper from commissary for personal letter writing.” Exhibit A.
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19. The jail’s postcard-only policy makes an exception for outgoing mail that is classified as “legal” mail. The jail’s Inmate Handbook states that “’’Legal mail’ is not mail sent to family members or friends, even if it contains copies of your legal papers.” The Inmate Handbook also specifies that “Legal mail does not include mail to or from doctors, psychiatrists, Child Protective Services, Outside Journey.” The jail’s Standard Operating Procedure regarding inmate mail further states that “Legal mail does not include mail to or from doctors, psychiatrists, or clergy.”
20. Prisoners who have funds on the jail’s books can buy postcards for 50 cents each. All the postcards are identical. The front features a color photograph of the jail itself. The return address, printed in the upper left corner, identifies the postcard as coming from the Criminal Justice Center of the El Paso County Sheriff’s Office . The last line of the preprinted return address is a blank line labeled “Inmate.” Prisoners must fill in their name in that space. The back side, where prisoners can write their brief messages, contains a large watermark depiction of the emblem of the El Paso County Sheriff’s Office—a large badge marked “Sheriff El Paso County Colorado” and the words “Honesty,” “Loyalty,” and “Unity.”
21. If prisoners do not have funds to buy postcards, the jail provides a meager ration of two postcards every two weeks, but only if the prisoners qualify for what the jail’s policy refers to as “indigent mail.” Prisoners qualify for “indigent mail” only if they have continuously had less than $3.00 in their inmate fund account for the preceding 14 days. Thus, prisoners who receive a few dollars from friends or family lose their eligibility for “indigent mail” for at least 14 days and possibly as long as 27 days. “Indigent supplies” are distributed only once every two weeks. Thus, a prisoner whose inmate account balance has remained below $3.00 for only 13 days will not receive any postcards. That prisoner will not
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be able to obtain free postcards until the next delivery of “indigent supplies” two weeks later. Many prisoners who currently have more than $3.00 in their inmate account are at risk of running out of funds. When that happens, the jail’s policy will restrict them to two postcards every other week.
22. Prisoners who qualify for “indigent mail” also receive a felt tip marker with which to write on the postcards. The markers issued to indigent prisoners have very fat tips that require prisoners to write in large letters if their writing is to be legible. Thus, these “indigent” markers further restrict the amount of text that indigent prisoners can fit onto the already-tiny postcards. In addition, the ink in the “indigent” markers is water soluble and smears easily on the glossy surface of the postcards. If a postal worker has moist hands or delivers the mail during inclement weather, there is a risk that the prisoner’s writing will become smeared, blurred, and perhaps totally illegible.
23. The new postcard-only policy effects a significant change from the previous policy. The Inmate Handbook, which has not been updated to reflect the new policy, states that indigent prisoners “will be permitted three personal letters per week free of charge.” Prisoners with funds could send as many letters as they wished as long as they purchased the materials and the stamps from the jail’s commissary.
24. The challenged policy significantly limits the ability of prisoners to express themselves. The tiny 4 x 6 postcards allow prisoners only a fraction of the writing space that is available in a two or three-page, double-sided letter. In addition, the postcards expose the content of the prisoners’ communications to anyone who handles or processes the postcards, both within the jail and after the postcards leave the facility. The policy either chills prisoners from writing about sensitive personal matters entirely, or it requires them to expose their
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communications to a host of strangers or unintended recipients—such as postal employees, an office secretary, a housemate, or a child who retrieves from the mailbox a postcard that discusses sensitive details intended only for the parent’s eyes. The new policy also categorically prohibits prisoners from enclosing expressive or artistic drawings they have made, newspaper or magazine clippings, religious literature, or other writings they wish to share. Prisoners cannot use an envelope to write a letter-to-the-editor, to correspond with a doctor or a psychiatrist, to seek spiritual guidance from clergy, to provide information to investigative reporters, or even to submit their own writings to such periodicals as the Colorado Springs Independent or Prison Legal News.
25. The postcard-only policy also burdens the First Amendment rights of nonprisoners. As the United States Supreme Court has recognized:
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges on the interest of each. … The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Procunier v. Martinez, 416 U.S. 396, 408-409 (1974).
Plaintiff Michael Jason Martinez
26. Mr. Martinez was a prisoner in the El Paso County Jail when the postcard-only policy went into effect. That policy interferes with the ability of Mr. Martinez to communicate with his correspondents.
27. Before the postcard-only policy went into effect, Mr. Martinez was communicating by letter to a member of the editorial staff at the Colorado Springs Gazette, the daily newspaper that is published in Colorado Springs. Mr. Martinez’s letters concerned
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issues in the jail that Mr. Martinez believed were of public concern and of interest to a newspaper reporter or editor. Mr. Martinez sent several such letters, each of which was several pages long. Mr. Martinez wants to send additional letters to the Gazette employee, but he cannot do so because of the defendant’s postcard-only policy. Mr. Martinez also wants to write, and submit for publication, a letter-to-the-editor of the Colorado Springs Gazette. The small size of the jail’s postcards prevents him from saying what he wants to say in the letter-to-the-editor.
28. Mr. Martinez has received an invitation from Prison Legal News, a monthly journal of legal developments in corrections and criminal justice, to write an article for publication about the El Paso County Jail and the impact of the jail’s postcard-only policy on the prisoners. Mr. Martinez wants to accept that invitation. The article Mr. Martinez wants to write will not fit on a postcard. Because of the defendant’s postcard-only policy, Mr. Martinez cannot accept the invitation to submit an article for publication to Prison Legal News.
29. Mr. Martinez has four children. They live with Mr. Martinez’s wife. Mr. Martinez wants to write to his wife about issues and subjects that are not appropriate for his children to know about. If he had to write on a postcard, it would be easy for Mr. Martinez’s 13-year-old and his 15-year-old to read any of his written communications to his wife. As a result, the postcard-only policy has constricted the scope of the subjects and content that Mr. Martinez can include in his written communication to his wife.
30. Before the postcard-only policy went into effect, Mr. Martinez used to draw pictures and cartoons for his younger children. That is one of the ways that Mr. Martinez has communicated with his children while he has been incarcerated. The postcard-only policy
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forbids Mr. Martinez from sending drawings to his children unless the drawings are small enough to fit onto a 4 x 6 postcard.
Plaintiff Elizabeth Fritz 31. Elizabeth Fritz has been a prisoner in the El Paso County Jail since May, 2010. Before the postcard-only policy went into effect, Ms. Fritz communicated with her husband by means of letters. Through the letters, they were able to maintain a very open communication link. Ms. Fritz was regularly writing letters of three to six pages to her husband. The postcard-only policy has adversely affected her ability to communicate with her husband. The space available on the postcards does not provide enough room for Ms. Fritz to express her thoughts, her feelings, and her concerns, and to maintain a close emotional relationship with her husband. 32. In addition, Ms. Fritz’s husband lives with his parents, the in-laws of Ms. Fritz. Because her in-laws might see the postcards that arrive at the house, Ms. Fritz has been inhibited and chilled from communicating private and personal messages that she intends solely for her husband, messages that she does not want her husband’s parents to read. When she could write letters, her correspondence included discussion of sensitive relationship issues. She can not discuss such issues on a postcard. 33. Ms. Fritz is concerned about the impact of the postcard-only policy on her husband and on the loved ones of other prisoners who can no longer receive prisoners’ letters. She knows that the families of prisoners often depend on the communications contained in the letters that prisoners are no longer permitted to send. Ms. Fritz believes that her letters were helping her husband to keep going during her absence. She feels heartbroken that she cannot give her husband the words of encouragement that she could readily write in a private letter.
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34. Until her arrest and incarceration in May, 2010, Ms. Fritz was working as a manager in a fast-food restaurant. For the first months she was in jail, she did not know how long she would be gone. In August, 2010, her pending charges were resolved, and she now knows the date that she will be released after completing her sentence for a misdemeanor charge to which she pleaded guilty. Now that she knows when she will return to the community, Ms. Fritz wants to write a letter to her former supervisor. She wants to explain what happened to cause her absence from work, and she wants to ask if she can resume working at the restaurant when she is released. Because of the postcard-only policy, however, Ms. Fritz cannot carry out that communication. There is not enough space on a postcard to convey what she wants to say. In addition, Ms. Fritz does not wish to expose the details of her arrest and confinement to other former and possibly future co-workers, who would surely see and read the glossy jail postcard before it would reach her former supervisor, the intended recipient.
Plaintiff Amber Hugenot 35. Amber Hugenot has been a prisoner in the El Paso County Jail since early June, 2010. The postcard-only policy has interfered with her ability to communicate. She feels extremely limited in what she can and cannot express on a postcard because she fears she may be treated differently by guards who may judge her based on what she might write. Ms. Hugenot has seen guards reading the content of prisoners’ postcards. Ms. Hugenot is so uncomfortable with the postcard-only policy that she has been writing to friends and family less frequently than she had before the policy went into effect. 36. Ms. Hugenot has two small children. They are too young to read. Before the postcard-only policy went into effect, Ms. Hugenot drew pictures for her children and sent
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them to their father. She used that artwork to her communicate with her children and express her feelings to them. Because of the postcard-only policy, she cannot send out those drawings any more. Her children are too young to understand the postcard-only policy. It breaks Ms. Hugenot’s heart to know that her children are asking their father why their mother is not sending them drawings any more.
37. Ms. Hugenot is currently pregnant. She has struggled with what this pregnancy means in her life and who will care for her baby once it is born. She wants to communicate with the father of her child regarding this highly personal and extremely important matter. While she has attempted to communicate about this issue by corresponding on the Jail's postcards, many of her private thoughts, feelings, questions and concerns related to the future of her baby have gone unsaid, because she does not want to expose them to all of the individuals who may handle the postcard.
Plaintiff Thomas Trujillo 38. Mr. Trujillo has been an inmate in the El Paso County Jail since 2009. The postcard-only policy severely limits his ability to correspond with his family and loved ones. 39. Mr. Trujillo’s wife is suffering from liver failure due to Hepatitis C. She is very close to dying. A few months ago, the doctors said she has only four months left to live. Mr. Trujillo’s wife is spending her last months of life in her brother’s home in Albuquerque. She cannot come to visit Mr. Trujillo, and neither he nor his wife can afford the cost of phone calls. 40. On the small postcards to which he is limited, Mr. Trujillo cannot say all that he wants to say to his wife before she dies. He estimates that he would have to buy 20 postcards, at a cost of ten dollars, to express all that he can say in a normal letter. In addition, Mr.
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Trujillo cannot express certain concerns or pose questions about his wife’s health in a postcard without exposing her disease and her condition to whomever winds up handling or processing the postcard.
41. Mr. Trujillo has two daughters living in Albuquerque to whom he wrote letters regularly prior to El Paso’s institution of the postcard-only policy. He feels his daughters are particularly in need of his support now, because their mother is dying. On a postcard Mr. Trujillo cannot say all that he wants to say in order to provide comfort and support to his daughters in this incredibly difficult time.
42. Mr. Trujillo also wants to correspond with an older woman from his church who has always been like a mother to him. He wrote to her regularly before the postcard-only policy went into effect. He wants to write to her about a potentially life-threatening medical condition of his, but he doesn’t want to write about it on postcards that lack the privacy of a letter. He has been to the woman’s house and has seen how her mail is often left out on a table where visitors can see it.
43. Mr. Trujillo leads an informal Bible study group in the jail. He used to write to church members about the progress and needs of fellow study group participants. He did this because these church members have provided support to study group participants in various ways. For example, the church members have sometimes made it a point to visit participants in the group. They have also sometimes helped inmates take care of personal affairs outside the jail. However, Mr. Trujillo does not feel he can share his fellow inmates’ names or personal information on postcards. As a result, Mr. Trujillo is no longer able to write to the church members to ask them to provide their much-appreciated assistance to particular prisoners who participate in the study group.
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44. When the postcard-only policy was imposed, Mr. Trujillo had some funds in his inmate account, and he was able to purchase postcards at the jail’s commissary. By the end of August, 2010, he had exhausted those funds and could no longer purchase postcards. The jail’s policy on “indigent mail” then consigned Mr. Trujillo to receiving only two postcards every other week. The jail’s “indigent mail” policy put Mr. Trujillo in the position of having to choose between writing to his daughters or writing to his dying wife. Just before this Complaint was filed, a relative put some funds in Mr. Trujillo’s inmate account, thus enabling him to buy postcards again. Nevertheless, Mr. Trujillo is at risk of exhausting those funds in the near future and of once again being restricted to a ration of only two postcards every two weeks.
Plaintiff Gary Harrison 45. Plaintiff Gary Harrison has been an inmate in the El Paso County Jail since February 2010. Since the postcard-only policy was put into effect, Mr. Harrison’s ability to keep in touch with his family has been severely limited. 46. Mr. Harrison has been diagnosed with a serious illness requiring long term treatment. He regards his condition as sensitive private information, and his mother, sisters, and his girlfriend are the only people who know of his diagnosis. Before the postcard-only policy was imposed, he regularly wrote letters to his mother and his sister that included discussion of his health, his treatment options, and the progression of his disease. 47. Mr. Harrison feels he cannot discuss his condition on postcards because of the risk that this very personal information could be learned by anyone who sees the postcard. For instance, Mr. Harrison wishes to keep his sensitive medical information private from his stepfather, who lives with Mr. Harrison’s mother and has access to the mailbox. Similarly, Mr.
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Harrison wishes to keep his sensitive medical information private from his sister’s boyfriend, who lives with his sister and has access to the mailbox. Because of the postcard-only policy, Mr. Harrison has lost the opportunity to share and receive familial support regarding his serious medical condition.
48. Mr. Harrison cannot afford to purchase the number of postcards needed to equal the total writing surface he once had for his letters. He has lost the opportunity once provided by letter writing to fully express himself. Mr. Harrison’s mother and sister live on the East Coast, and cannot afford to visit him. . He also cannot afford phone calls that would allow him to stay in touch with his family.
Plaintiff Robert Rumpf 49. Plaintiff Robert Rumpf has been an inmate in the El Paso County Jail since April 2010. The challenged policy has severely limited Mr. Rumpf’s ability to maintain his relationships with his sister, niece, and aunt, as well as his ability to receive support for his life threatening, terminal, extremely private illness. 50. Before the postcard-only policy was imposed, Mr. Rumpf regularly wrote letters to his sister, his niece and his aunt, all of whom live out of state. Mr. Rumpf has taught himself to draw and, before the institution of the challenged policy, regularly sent drawings of cartoon characters to his two-year-old niece. Although he has never met his niece, he was able to establish a relationship with her through these drawings. He heard from his sister that the drawings brought his niece great joy. Because of the postcard-only policy, Mr. Rumpf can no longer send drawings to his niece. He cannot fit these cartoons onto the jail postcards, and he cannot produce the drawings on the postcard due to their glossy nature. Mr. Rumpf feels that he has lost his only way to communicate in a manner that is meaningful to a toddler.
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51. Prior to the El Paso Jail’s institution of the postcard-only policy, Mr. Rumpf also used to write regularly to his sister. These letters became particularly important after the death of Mr. Rumpf’s mother in April, 2010, while he was in jail. Mr. Rumpf is close to his sister and he knows that their mother was truly his sister’s world. Mr. Rumpf is the closest sibling to his sister and he feels that his support is essential to her emotional recovery from their mother’s death. The postcards do not provide Mr. Rumpf enough space or privacy to express all of the things he wants to express to his sister, and to provide her the kind of personal support that he wishes to provide and that she needs. His sentiments require pages to express. Additionally, he does not want to write about his sister’s private feelings and her private relationship with their mother on a postcard that is exposed to whoever processes, handles, or sees the postcard.
52. Additionally, Mr. Rumpf has a serious, terminal, extremely private medical condition that he used to discuss with his sister in his letters. He feels he cannot write about his ongoing health issues by postcard because he does not want his private medical issues to be discovered by any member of the jail staff or by any visitor to his sister’s home. Mr. Rumpf has no alternative way to communicate with his sister about these private medical issues. His sister lives in another state and cannot visit him in jail. In addition, Mr. Rumpf cannot afford to call his sister on the jail’s telephones that are available to prisoners. Even if he could afford the calls, he would not be able to discuss his private health issues on the telephone. The wall-mounted phones provided to inmates are close together and have no privacy dividers. Other inmates, as well as guards, can easily overhear conversations.
53. Prior to the postcard-only policy, Mr. Rumpf sent handmade cards to his elderly aunt who lives out of state. Mr. Rumpf believes these cards brought joy to his aunt. Due to
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the challenged policy, Mr. Rumpf can no longer send these cards. The postcards do not have the same warm, personal, homemade feel as handmade cards. Additionally, because the postcards include the color photograph of the jail and the watermark depiction of the Sheriff’s badge, Mr. Rumpf does not believe that his elderly aunt would enjoy receiving them. Therefore, since the imposition of the challenged policy, Mr. Rumpf has refrained from sending mail to his aunt.
54. Further, Mr. Rumpf does not have the money to purchase the multiple postcards each week that would be necessary to continue the previous flow of communication that letters provided. Mr. Rumpf is on “indigent” status at the jail. Pursuant to the jail’s “indigent mail” policy, Mr. Rumpf receives only two postcards every two weeks.
Plaintiff Damian Gradeless 55. Plaintiff Damien Gradeless has been an inmate at El Paso Jail since May 2010. The postcard-only policy has removed an important emotional outlet for Mr. Gradeless, severely restricting his ability to share his thoughts and feelings with, and maintain close relationships with, his family and his fiancée. 56. Prior to the imposition of the challenged policy, Mr. Gradeless was a prolific letter writer. Writing letters helped Mr. Gradeless, a young man who had just turned eighteen, cope with his incarceration. He wrote lengthy letters on a regular basis to his fiancée, mother, father, and siblings. 57. After the postcard-only policy was imposed, Mr. Gradeless attempted to maintain as much written communication with his loved ones as he could by purchasing twenty postcards per week, the maximum he has been permitted to buy at the jail’s commissary. Twenty postcards do not even begin to equal the writing space that Mr. Gradless filled on a
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weekly basis in his communications with his family before the postcard-only policy went into effect.
58. Before the postcard-only policy went into effect, Mr. Gradeless drew cartoons for his youngest siblings and made numerous, hand-drawn, personalized cards for family members on their birthdays and holidays. He felt that the care and effort he put into these cards and drawings offered something more to his family than words, and was one of the few gifts he was capable of giving his family members while incarcerated. He can no longer offer such gifts on the jail postcards.
59. Mr. Gradeless used to write to his mother about ongoing family tensions, particularly related to his younger sister, who is now a teenager. As the eldest brother, Mr. Gradeless often discussed his sibling’s behavior with his mother in his letters. However, his sister lives with his mother and often retrieves the family’s mail. Mr. Gradless believes it would be hurtful to his family if his sister were to read his communications with his mother about his sister’s behavior. Therefore, due to the postcard-only policy, Mr. Gradless has been forced to discontinue to these discussions with his mother.
60. Although his fiancée visits him regularly, Mr. Gradeless finds that he has more thoughts than he can communicate during their 30 minute visits. Writing gives him the ability to reflect and record his feelings after she leaves, when he is alone again. The postcard-only policy, however, prevents him from sending what he wants to write to his fiancée.
61. Regular letters were the primary way Mr. Gradeless kept in touch with his father. He has no other alternative avenues of communication with his father, who lives in Michigan and cannot afford to make the trip to visit. Similarly, telephone calls are too expensive for
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Mr. Gradless to afford. He has only spoken to his father twice on the telephone since the beginning of his incarceration on May 3, 2010.
The challenged policy’s effect on the Plaintiff class 62. In numerous ways, the challenged policy has inhibited, infringed, limited, chilled, and suppressed the constitutionally-protected communications between prisoners and their correspondents or intended correspondents. 63. The challenged policy has forced prisoners to either abandon important correspondence or risk divulging highly confidential, sensitive information. Gay prisoners have been chilled from expressing themselves when writing to their intimate partners. Prisoners with HIV, Hepatitis C, or other sensitive medical issues have been chilled from corresponding with medical personnel or with family members or intimate associates about their medical conditions. The policy has also chilled prisoners from discussing mental health issues in their correspondence. Prisoners who express themselves through drawings or cartoons are forbidden to enclose their art. Those who wish to enclose a religious tract, or a clipping from a newspaper or magazine, are forbidden from doing so. When children may have access to the mailbox, parents are chilled from communicating with their spouses about marital problems, child-raising issues, and other matters they do not wish to disclose to their children. Prisoners have been chilled from corresponding candidly with clergy or other religious or spiritual guides. 64. The challenged policy also dramatically limits the volume of written communication permitted to prisoners, and significantly increases the cost of that communication. Even a prisoner who purchases the maximum twenty postcards permitted
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under the policy, at a cost of ten dollars, has less writing space than is contained in a single three-page letter that can be mailed with a forty-four-cent stamp.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 65. Each of the plaintiffs has filed a grievance objecting to the postcard-only policy. Each has filed a grievance appeal after being unsatisfied with the jail’s response to the original grievance. Each has received a response denying the grievance appeal. Each of the plaintiffs has exhausted all available administrative remedies.
DECLARATORY RELIEF 66. An actual and immediate controversy exists between the parties. 67. Defendant takes the position that the challenged policy is valid and constitutional. Plaintiffs assert that the challenged policy violates their rights under the Colorado and United States constitutions. 68. In requesting declaratory relief, plaintiffs request an interpretation of the rights, legal status and relationships of the parties under the law and facts.
INJUNCTIVE RELIEF 69. The defendant has acted and is threatening to continue acting under color of state law to deprive plaintiffs of their constitutional rights. Plaintiffs face a real and immediate threat of irreparable injury as a result of the actions and threatened actions of the defendant and the existence, operation, and threat of enforcement of the challenged policy.
CLASS ACTION ALLEGATIONS 70. The plaintiffs bring this action on behalf of themselves and all others similarly situated, pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure.
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71. Each of the plaintiffs seeks to represent a class defined as “all current and future prisoners in the El Paso County Jail who are subject to or affected by the Defendant’s postcard-only policy.”
72. The proposed class is so numerous and so fluid that joinder of all members is impracticable.
73. There are questions of law and fact common to the members of the plaintiff class. 74. The claims of the named plaintiffs are typical of the claims of the members of the class. 75. The named plaintiffs will fairly and adequately protect the interests of the class. Plaintiffs have no interest that is now or may be potentially antagonistic to the interests of the class. Plaintiffs are represented by attorneys employed by and working in cooperation with the ACLU Foundation of Colorado and the National Prison Project of the ACLU Foundation, which have extensive experience in class action cases involving federal civil rights claims. 76. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to the class as a whole.
FIRST CLAIM FOR RELIEF (First Amendment, Fourteenth Amendment, 42 U.S.C. § 1983) 77. The challenged policy has violated, and threatens to continue violating, the plaintiffs’ rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment. 78. Wherefore, the plaintiffs are entitled to a declaratory judgment, injunctive relief, and such additional relief as the Court deems just.
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SECOND CLAIM FOR RELIEF

(Colorado Constitution, Article II, Sections 10 and 25)

79. The challenged policy has violated, and threatens to continue violating, the

plaintiffs’ rights under the Colorado Constitution, Article II, Sections 10 and 25, which

protect the right of free expression and the right to due process of law.

80. Wherefore, the plaintiffs are entitled to a declaratory judgment, injunctive relief,

and such additional relief as the Court deems just.

PRAYER FOR RELIEF

81. Wherefore, plaintiffs ask that this Court:

a.

Certify, pursuant to Fed. R. Civ. P. 23(a) and (b)(2), a class comprising

“all current and future prisoners in the El Paso County Jail who are

subject to or affected by the Defendant’s postcard-only policy;”

b. Declare that the challenged postcard-only policy violates the rights of the

plaintiffs and their correspondents;

c. Permanently enjoin the defendant from continuing to enforce the

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

postcards, thus restoring the status quo that existed before this controversy began;

d. Award plaintiffs their reasonable costs and attorney fees;

e. Provide whatever additional relief the Court deems just.

Dated September 14, 2010

s/Mark Silverstein ______________ Mark Silverstein Legal Director American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218

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Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net s/Rebecca T . Wallace______________ American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: rtwallace@aclu-co.org s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts Attorneys for Plaintiffs
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 Case 1:10-cv-02242-WYD -KLM Document 2 Filed 09/14/10 USDC Colorado Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Case No.________________ Michael Jason Martinez; Elizabeth Fritz; Thomas Trujillo; Amber Hugenot; Gary Harrison; Robert Rumpf; and Damian Gradeless, on behalf of themselves and all others similarly situated,
Plaintiffs, v. Terry Maketa, in his official capacity as El Paso County Sheriff,
Defendant.
PLAINTIFFS’ MOTION TO CERTIFY CLASS AND APPOINT CLASS COUNSEL
D.C.Colo.LR 7.1 Conference Plaintiffs’ counsel has not consulted opposing counsel with respect to this motion because no counsel has yet appeared.
INTRODUCTION Plaintiffs are prisoners in the El Paso County Jail in Colorado Springs, Colorado. They bring this action to challenge a new Jail policy under which, with narrow exceptions, all outgoing mail sent by prisoners must be written on postcards supplied by the Jail (hereinafter the “postcard-only policy”). Plaintiffs allege that this policy violates their rights under the First and Fourteenth Amendments to the United States Constitution
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and Article II, Sections 10 and 25 of the Colorado Constitution. They seek injunctive and declaratory relief only; no damages are sought.
Plaintiffs now move this Court to certify, pursuant to Fed. R. Civ. P. 23(b)(2), a class comprising “all current and future prisoners in the El Paso County Jail who are subject to or affected by the Defendant’s postcard-only policy.” Plaintiffs also ask the Court to appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g). For the reasons set forth below, the motion should be granted.1
ARGUMENT I. Principles applicable to class certification.
In ruling on a motion for class certification, “the district court must determine whether the four threshold requirements of Rule 23(a) are met. If the court determines that they are, it must then examine whether the action falls within one of three categories of suits set forth in Rule 23(b).” Adamson v. Bowen, 855 F.2d 668, 675 (10th Cir. 1988) (footnote omitted).
Class certification is solely a procedural issue, and the court’s inquiry is limited to determining whether the proposed class satisfies the requirements of Rule 23. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982). In ruling on the motion for class certification, the court must take the substantive allegations of the complaint as true. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 n.7 (10th Cir. 1999). If the court has some doubt, it should
1 Undersigned counsel are informed that jail detainee Jason Scott has filed a pro se lawsuit in this Court, No. 10-cv-02195-BNB, challenging the postcard-only policy and seeking damages as well as injunctive and declaratory relief.
If Mr. Scott is transferred or released from the jail, he will no longer be a member of the class plaintiffs seek to certify. However, if Mr. Scott remains in the jail when this Court rules on plaintiffs’ motion for class certification, and his suit remains pending at that time, the class could be defined to exclude him.
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err in favor of certification, since the decision is subject to later modification. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968); see also Anderson v. Boeing Co., 222 F.R.D. 521, 531 (N.D. Okla. 2004) (same, citing Esplin); Harrington v. City of Albuquerque, 222 F.R.D. 505, 508-09 (D.N.M. 2004) (same). II. The requirements of Rule 23(a) are satisfied.
In order for a class to be certified, the following requirements must be satisfied: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). As plaintiffs demonstrate below, all four requirements of Rule 23(a) are easily met in this case.
A. Impracticability of Joinder – Rule 23(a)(1). Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is impracticable.” There can be no doubt that the proposed class satisfies this requirement. The jail’s average daily population is about 1300 prisoners, all of whom are subject to the postcard-only policy. Thus, based only on the number of class members in the jail at any one time, the requirements of Rule 23(a)(1) are satisfied. See Rex v. Owens ex rel. State of Okla., 585 F.2d 432, 436 (10th Cir. 1978) (“Class actions have been deemed viable in instances where as few as 17 to 20 persons are identified as the class”); Horn v. Associated Wholesale Grocers, Inc., 555 F.2d 270, 275-76 (10th Cir. 1977) (trial court erred in denying class certification on numerosity grounds where class consisted of between 41 and 46 persons).
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Moreover, the proposed class includes not only current prisoners, but future prisoners as well. In any given year, the jail books thousands of prisoners, some of whom stay for only a relatively short time. The fluid nature of the class, and the inclusion in the class of future prisoners, whose identities obviously cannot now be ascertained, makes joinder of all class members not just impracticable but literally impossible. See Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002) (finding certification appropriate for class of current and future prisoners seeking injunctive relief; “[a]s members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable”). The requirements of Rule 23(a)(1) are satisfied.2
B. Commonality – Rule 23(a)(2). Rule 23(a)(2) “requires only a single question of law or fact common to the entire class.” D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1195 (10th Cir. 2010). For that reason, the commonality requirement is “easily met.” 1 Herbert B. Newberg, Newberg on Class Actions § 3.10, at 274 (4th ed. 2002) (hereinafter “Newberg”). In this case, the members of the proposed class are all housed in a single facility, and all of them are subject to the defendant’s postcard-only policy. Accordingly, there are questions of fact that are common to the class, including (but not limited to) the following: 1. The scope and nature of defendant’s postcard-only policy.
2 See also Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999) (fluidity of class of criminal defendants makes certification particularly appropriate); Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985) (“the fluid composition of a prison population is particularly well-suited for class status”); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y. 1985) (“The fact that the [detention center] population ... is constantly revolving establishes sufficient numerosity to make joinder of the class members impracticable”); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (certifying class of prisoners “in light of the fact that the inmate population at these facilities is constantly revolving”).
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2. The scope, criteria, and process for invoking the alleged “legal mail”

exception to defendant’s postcard-only policy.

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

following:

1.

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

prisoners’ rights under the First and Fourteenth Amendments to the

United States Constitution.

2.

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

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

Colorado Constitution.

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

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

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

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

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

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

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

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

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

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

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

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C.

Typicality – Rule 23(a)(3).

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

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

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

of the class.

Although the challenged policies and practices may affect different class members

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

treatise on class actions:

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

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

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

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

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

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

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

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

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

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

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

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

The typicality requirement is met.

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D. Adequacy of Representation – Rule 23(a)(4). Adequacy of representation involves two inquiries: “(1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)). These criteria are clearly satisfied in this case. There is no conflict between plaintiffs or their counsel and other class members. Plaintiffs are represented by attorneys associated with the ACLU of Colorado and the National Prison Project of the ACLU Foundation, who are experienced in class action cases in general and class action challenges to prison and jail practices in particular. III. Class certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2). Certification is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). “The writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits that challenge widespread rights violations of people who are individually unable to vindicate their own rights.” Baby Neal v. Casey, 43 F.3d 48, 64 (3d Cir. 1994). Recognizing these principles, the Tenth Circuit has explained that Rule 23(b)(2) is “well suited” to cases in which “plaintiffs attempt to bring suit on behalf of a shifting prison population.” Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004) (Shook I).
The Tenth Circuit recently summarized the requirements of Rule 23(b)(2):
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Rule 23(b)(2) imposes two independent, but related requirements upon those seeking class certification. First, plaintiffs must demonstrate defendants' actions or inactions are based on grounds generally applicable to all class members. Second, plaintiffs must also establish the injunctive relief they have requested is appropriate for the class as a whole. Together these requirements demand cohesiveness among class members with respect to their injuries[.]
This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate the class is sufficiently cohesive that any classwide injunctive relief satisfies Rule 65(d)'s requirement that every injunction “state its terms specifically; and describe in reasonable detail ... the act or acts restrained or required.” Second, cohesiveness also requires that class members' injuries are sufficiently similar that they can be remedied in a single injunction without differentiating between class members. Rule 23(b)(2)'s bottom line, therefore, demands at the class certification stage plaintiffs describe in reasonably particular detail the injunctive relief they seek such that the district court can at least conceive of an injunction that would satisfy Rule 65(d)'s requirements, as well as the requirements of Rule 23(b)(2).
Stricklin, 594 F.3d at 1199-1200 (internal quotation marks, citations, brackets omitted).
These requirements are amply satisfied in this case. All class members
have suffered the same injury: a limitation on their ability to send outgoing
correspondence that is restricted or prohibited by defendant’s postcard-only policy.3
Plaintiffs have described an injunction that would remedy all class members’ injuries,
and that satisfies the strictures of Rule 65(d). See Complaint, Prayer for Relief (asking
that the Court “[p]ermanently enjoin the defendant from continuing to enforce the
3 Of course it is not required that all class members have actually been denied the ability to send a specific piece of outgoing correspondence:
Rule 23(b)(2) does not require Named Plaintiffs to prove [defendant’s] controverted policies or practices actually harm or impose a risk of harm upon every class member at the class certification stage. … [C]ertification is appropriate even if the defendant’s action or inaction “has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.” Fed. R. Civ. P. 23(b)(2), 1966 Amendment advisory committee note (emphasis added).
Stricklin, 594 F.3d at 1201.
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challenged postcard-only policy, or any other policy that limits outgoing mail to

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

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

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

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

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

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

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

satisfied.

IV.

The Court should appoint the undersigned as class counsel.

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

that certifies a class must appoint class counsel.”

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

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

Colo. 2010).

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

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

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

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

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prisoners’ rights litigation. In addition, the undersigned have already done substantial work investigating and identifying the claims of the plaintiff class.
CONCLUSION For all the reasons set forth above, the motion should be granted.
Respectfully submitted,
s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts Mark Silverstein Rebecca T. Wallace American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net Attorneys for Plaintiffs
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 Case 1:10-cv-02242-WYD -KLM Document 19 Filed 11/10/10 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02242-WYD-KLM
MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Mark Silverstein, Legal Director Rebecca T. Wallace, Staff Attorney AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
rtwallace@aclu-co.org
David C. Fathi, Director NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org
Counsel for Plaintiffs

Case 1:10-cv-02242-WYD -KLM Document 19 Filed 11/10/10 USDC Colorado Page 2 of 16
Rule 7.1 Certificate Pursuant to D.C.Colo.L.Civ.R. 7.1, Mark Silverstein, counsel for Plaintiffs, conferred with Charles Greenlee, counsel for defendant, who opposes this motion.
INTRODUCTION This lawsuit challenges the El Paso County Jail’s recently implemented postcard-only policy, which forbids prisoners to write letters to their parents, children, spouses, domestic partners, fiancées, sweethearts, or friends; to clergy, reporters, or spiritual advisors; or to anyone else in the free world whose correspondence does not fall within the Jail’s narrow exceptions. Instead, they must write all such correspondence on 4 x 6 inch postcards supplied by the Jail. Plaintiffs allege that this policy – which until 2010 was not followed by a single jail in Colorado – violates their rights under the Colorado and United States Constitutions, and they seek a preliminary injunction against its continued enforcement. For all the reasons set forth herein, the motion for preliminary injunction should be granted.1
STATEMENT OF FACTS I. The Jail’s Implementation of the Postcard-only Policy
In late July, 2010, the El Paso County Jail instituted a new policy governing prisoners’ outgoing correspondence. Pursuant to the new policy, “all outgoing personal letter writing materials will consist of 4 x 6 inch post cards. Envelopes and writing paper will no longer be issued to inmates. Inmates will no longer be able to purchase envelopes and writing paper from commissary for personal letter writing.” Doc. No. 17, Proposed Scheduling Order, Statement of Undisputed Facts (hereinafter “Undisputed Facts”), Fact e. Under the new policy, prisoners who
1 The original plaintiffs in this case are Jail prisoners whose ability to correspond with family members and others has been restricted by the postcard-only policy. They seek certification, pursuant to Fed. R. Civ. P. 23(b)(2), of a class comprising “all current and future prisoners in the El Paso County Jail who are subject to or affected by the Defendant’s postcard-only policy.” The motion for class certification is fully briefed. Contemporaneously with this motion, Callie Gonzales is filing a motion for leave to intervene as a party plaintiff. Ms. Gonzales’ son is incarcerated in the Jail, and her ability to receive correspondence from him has been restricted by the policy at issue.
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have funds can buy up to twenty identical postcards for 50 cents each. See Undisputed Facts, Fact j; see also Exh. 1, Gradeless Decl. ¶ 6. If the Jail classifies a prisoner as “indigent,” the Jail provides two postcards every two weeks. See Undisputed Facts, Fact k. The Jail makes an exception to its postcard-only policy for “legal” mail. Undisputed Facts, Fact g.
Prior to implementation of the postcard-only policy, indigent prisoners were provided the means to write three, multi-page personal letters per week, on paper and in an envelope, free of charge. See Undisputed Facts, Fact m. Prisoners with funds were permitted to send as many letters as they wished as long as they purchased the writing materials and stamps from the Jail’s commissary. Id.
The postcard-only policy has drastically limited prisoners’ correspondence. The postcards expose prisoners’ correspondence to anyone who might handle the mail, and allow prisoners only a fraction of the writing space that was formerly available in a two or three-page, double-sided letter. The new policy also prohibits prisoners from enclosing expressive or artistic drawings they have made, newspaper or magazine clippings, religious literature, or other writings they wish to share. Undisputed Facts, Fact n. Prisoners cannot use an envelope to write a letter-to-the-editor, to seek spiritual guidance from clergy, to provide information to investigative reporters, or to submit their own writings to such periodicals as the Colorado Springs Independent or Prison Legal News. Id.
Prior to 2010, every single jail in Colorado permitted prisoners to send outgoing personal correspondence on paper and in an envelope. Today the overwhelming majority of Colorado jails still allow such outgoing correspondence.2
2 Plaintiffs believe that defendant does not dispute the facts set forth in this paragraph, but in any event, plaintiffs will present evidence to support these assertions at the hearing on this motion.
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According to the Jail’s estimates, the postcard-only policy will save the Jail approximately $119 per week in postage and envelopes for indigent prisoners. See Doc. No. 10, Defendant’s Answer (hereinafter “Def. Ans.”), Exh. A-1, Cost Chart (attached hereto as Exh. 2).
II. The Effects of the Postcard-only Policy on Plaintiffs Plaintiffs Damian Gradeless and Amber Hugenot have been incarcerated at the Jail since
before the imposition of the postcard-only policy. Proposed Plaintiff-Intervenor Callie Gonzales is the mother of Mr. Gradeless. All have found their communications dramatically stifled by the postcard-only policy.
Prior to the postcard-only policy, Mr. Gradeless was a prolific writer, who struggled mightily to maintain close relationships with his family and fiancée through the written word and through his own drawings. Exh. 1, Gradeless Decl., passim. Although Mr. Gradeless sends the maximum number of postcards permitted by the Jail each week, the postcard-only policy has made it impossible for him to maintain the regular, in-depth, private communications with his loved ones that he relied on to help him cope with the pressures, fears and loneliness of incarceration. Exh. 1, Gradeless Decl., passim. Mr. Gradeless explains:
I feel the postcard-only policy serves to isolate me from my family and friends at a time when I am most in need of their support, and when they are most in need of communication from me. I fear that my time incarcerated will serve to weaken my family and community ties, making it more difficult for me to reintegrate successfully when I am released. Exh. 1, Gradeless Decl. ¶ 11. One of the primary recipients of Mr. Gradeless’ communications, his mother Callie Gonzales, has also been dramatically affected by the postcard-only policy. As the eldest son of seven children, Mr. Gradeless has acted as the male head of household since the death of Ms. Gonzales’ husband last year. Exh. 3, Gonzales Decl. ¶ 2. As part of that role, Mr. Gradeless
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was a primary support system for Ms. Gonzales, regularly providing her with advice and support regarding her children’s development and discipline. Id. ¶¶ 2-3. Even while incarcerated, Mr. Gradeless made every effort to continue providing Ms. Gonzales with this support through his lengthy, frequent letters. Exh. 1, Gradeless Decl. ¶¶ 5, 8; Exh. 3, Gonzales Decl. ¶¶ 3-4. After the imposition of the postcard-only policy, Mr. Gradeless was no longer able to do so, both because of the extremely limited writing space available to him on the postcards, and because of the inherently public nature of postcard communications. Exh. 1, Gradeless Decl. ¶¶ 6, 8; Exh. 3, Gonzales Decl. ¶¶ 6-7. As Mr. Gradeless knew, Ms. Gonzales’ children often retrieve her mail and read Mr. Gradeless’ postcards. Exh. 1, Gradeless Decl. ¶ 8; Exh. 3, Gonzales Decl. ¶ 7. Therefore, he could not discuss with his mother issues that were inappropriate for viewing by his younger siblings, including his precarious emotional state, the challenges of life in jail, and Ms. Gonzales’ struggles with the behavior of some of her children. Exh. 1, Gradeless Decl. ¶ 8; Exh. 3, Gonzales Decl. ¶ 7. As Ms. Gonzales explains:
It is impossible for Damian and I to remain as close as we were when he was able to send letters, because we cannot communicate in a detailed way about so many important issues. I feel more alone without regular support from my eldest son, someone who has truly helped me in my struggles as a recently single mom. I fear I am likewise not providing him the level of support that he needs from me right now, because I do not have the insight I once did into his experiences, his hopes, and his fears. Exh. 3, Gonzales Decl. ¶ 8. Plaintiff Amber Hugenot was pregnant when she was booked into the Jail. Exh. 4, Hugenot Decl. ¶ 2. The postcard-only policy made it significantly more difficult for her to arrange for the care of her baby once born and to cope with the emotional challenges of being unable to care for her baby due to her incarceration. Id. ¶¶ 2-3. Further, while incarcerated at the Jail, Ms. Hugenot has been struggling to maintain a connection with her other children, some
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of whom are too young to read. Id. ¶ 5. Prior to the imposition of the postcard-only policy, Ms.
Hugenot sent handmade drawings to her children, reflective of her thoughts, feelings, and love
for them. Id. She can no longer send these drawings and she fears that, as a result, they will be
less close to her upon her release. Id. ¶¶ 6, 7-9.
ARGUMENT To obtain interim injunctive relief, the moving party must generally demonstrate “(1) a
likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm
in the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor;
and (4) that the injunction is in the public interest.” RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009). The plaintiffs here easily satisfy this test.3
I. Plaintiffs are Substantially Likely to Succeed on the Merits of Their Constitutional Claims “Correspondence between a prisoner and an outsider implicates the guarantee of freedom
of speech under the First Amendment and a qualified liberty interest under the Fourteenth
Amendment.” Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996) (citing Procunier v. Martinez,
416 U.S. 396 (1974)). Unlike regulations on incoming mail, which are subject to the less
stringent test set forth in Turner v. Safley, 482 U.S. 78 (1987) (regulation valid if it is reasonably
related to legitimate penological interests), regulations that infringe upon First Amendment rights
in prisoners’ outgoing mail are subject to the stricter test set forth in Martinez. Treff, 74 F.3d at
3 Three types of “disfavored” injunctions require a heightened standard: “(1) preliminary injunctions that alter the status quo, (2) mandatory preliminary injunctions, and (3) preliminary injunctions that give the movant all the relief it would be entitled to if it prevailed in a full trial.” Id. at 1208 n.3. The proposed injunction does not fall into any of the three disfavored categories. By temporarily enjoining the new postcard-only rule, plaintiffs merely seek to return defendant’s mail policy to the “last peaceable uncontested status existing between the parties before the dispute developed.” See Schrier v. University of Colorado, 427 F.3d 1253, 1260 (10th Cir. 2005). Similarly, the proposed injunction is prohibitory rather than mandatory because enjoining the postcard-only policy “does not compel [the defendant] to do something it was not already doing during the last uncontested period preceding the injunction.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149, 1155 (10th Cir. 2001). Finally, the proposed injunction would not give plaintiffs all the relief they would be entitled to if they prevail in a full trial: it merely provides temporary, not permanent, protection for their First Amendment rights. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1247-48 (10th Cir. 2001).
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194-95; see also Jordan v. Pugh, 504 F.Supp.2d 1109, 1120 (D. Colo. 2007) (invalidating outgoing mail regulation under Martinez test). The reason for this distinction is that “outgoing personal correspondence from prisoners . . . [does] not, by its very nature, pose a serious threat to prison order and security.” Thornburgh v. Abbott, 490 U.S. 401, 411 (1989).
Under the Martinez test, a valid limitation on a prisoner’s outgoing mail must meet two requirements. First, the “limitations on a prisoner’s First Amendment rights in his outgoing mail ‘must further an important or substantial governmental interest unrelated to the suppression of expression.’” Treff, 74 F.3d at 195 (quoting Martinez, 416 U.S. at 413). More specifically, the limitation must further “one or more of the substantial governmental interests of security, order, and rehabilitation.” Martinez, 416 U.S. at 413. Second, “the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.” Martinez, 416 U.S. at 413; Treff, 74 F.3d at 195. 4
A. The Postcard-Only Policy Substantially Burdens the First Amendment Rights of Both Prisoners and Their Free-World Correspondents
It is undisputed that the postcard-only policy significantly limits the amount of written correspondence prisoners can send, and entirely prevents them from sending drawings, newspaper clippings, religious tracts, or other expressive materials. See Statement of Facts, supra; Exh. 1, Gradeless Decl., passim; Exh. 3, Gonzales Decl., passim. These restrictions infringe the First Amendment rights not only of prisoners, but also of their family members and other free-world correspondents:
Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and censorship of the
4 Article II, section 10 of the Colorado Constitution provides broader protection of speech than the First Amendment. See Bock v. Westminster Mall Company, 819 P.2d 55, 59-60 (Colo. 1991). Thus, while this brief discusses only plaintiffs’ claims under the First Amendment, a policy that violates the First Amendment a fortiori violates Art. II, sec. 10.
7

Case 1:10-cv-02242-WYD -KLM Document 19 Filed 11/10/10 USDC Colorado Page 8 of 16
communication between them necessarily impinges on the interest of each. . . . The wife of a prison inmate who is not permitted to read all that her husband wanted to say to her has suffered an abridgment of her interest in communicating with him as plain as that which results from censorship of her letter to him. In either event, censorship of prisoner mail works a consequential restriction on the First and Fourteenth Amendments rights of those who are not prisoners. Martinez, 416 U.S. at 408-09.
B. The Postcard-Only Policy is Neither Necessary Nor Essential to Satisfy Any Important or Substantial Penological Interest
In this case, Defendant identifies only two interests that purportedly justify the postcardonly policy: first, that it will stop prisoners from using outgoing mail to commit crimes; and second, that it will save money. Def. Ans. at 2. Neither interest justifies the policy.
1. The Postcard-Only Policy is Neither Necessary Nor Essential to Satisfy the Jail’s Interest in Preventing Crime
Plaintiffs agree that preventing prisoners from using outgoing mail to commit crimes is an important governmental interest. See Martinez, 416 U.S. at 413. However, restricting prisoners’ outgoing mail to postcards is neither necessary nor essential to serve that interest.
As a threshold matter, it is important to note that until August 2010, the El Paso County Jail freely allowed prisoners to send personal mail in envelopes. Indeed, until 2010, no jail in Colorado limited prisoners’ outgoing mail to postcards. These facts alone argue powerfully against a finding that a postcard-only policy is “necessary or essential” to protect the interest in security and crime prevention. See Martinez, 416 U.S. at 414 n. 14 (“While not necessarily controlling, the policies followed at other well-run institutions would be relevant to a determination of the need for a particular type of restriction”).
At the hearing on this motion, plaintiffs expect to present an expert on jail management and security who will testify that a postcard-only policy for outgoing prisoner mail is not necessary or essential to protect jail security and prevent crime, and that numerous jails advance
8

Case 1:10-cv-02242-WYD -KLM Document 19 Filed 11/10/10 USDC Colorado Page 9 of 16
these goals by other means that trench far less heavily on the First Amendment rights of prisoners and their free-world correspondents. Even without the benefit of expert testimony, however, certain alternatives are obvious.
It is settled law that jail officials may inspect outgoing letters to determine whether they “fall[] into a category which poses a threat, including escape plans, plans related to ongoing criminal activity, and threats of blackmail or extortion.” Beville v. Ednie, 74 F.3d 210, 213-14 (10th Cir. 1996) (internal citations and quotations omitted). They may also require that outgoing envelopes be left unsealed to facilitate this inspection. See Stow v. Grimaldi, 993 F.2d 1002, 1004 (1st Cir. 1993). Thus, defendant here can inspect all outgoing letters; outgoing letters sent by high-risk prisoners; outgoing letters prison officials believe may pose a security risk; or a random sample of outgoing letters.5 Defendant has not explained – let alone demonstrated with evidence – why these alternatives do not fully satisfy security needs. See Beerheide v. Suthers, 286 F.3d 1179, 1189 (10th Cir. 2002) (even under the more deferential Turner test, “[i]n order to warrant deference, prison officials must present credible evidence to support their stated penological goals”) (emphasis in original).6
2. The Jail’s Interest in Saving Money Does Not Advance Security, Order, or Rehabilitation
The second justification identified by the Jail is that “[t]he postcards are … a significant cost savings to the Jail.” Def. Ans. at 2. As a threshold matter, a mere desire to save money does not satisfy the Martinez test, which requires that the restriction on First Amendment rights “further[] one or more of the substantial governmental interests of security, order, and
5 Defendant’s Answer asserts that prior to adoption of the postcard-only policy in August 2010, “outgoing mail was only opened upon reasonable belief that the letters presented a public safety threat.” Def. Ans. at 2.
6 There is reason to doubt that security concerns were the actual motivation for the postcard-only policy. Defendant cites a single prisoner who allegedly used outgoing mail to commit crimes “from 2005 to 2006.” Def. Ans. at 2. The postcardonly policy was not adopted until the latter half of 2010. Even under the more deferential Turner standard, correctional officials cannot rely upon rationales that did not, in fact, motivate the challenged policy. See Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993); Swift v. Lewis, 901 F.2d 730, 731-32 (9th Cir. 1990).
9

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rehabilitation.” 416 U.S. at 413 (emphasis added). A desire to save money is an interest shared by all government entities, and indeed by all actors, public and private; it is in no way unique to the correctional setting. Martinez sets forth an exhaustive list of governmental interests that can justify restrictions on outgoing mail, and saving money is not among them. See Ramos v. Lamm, 639 F.2d 559, 581 (10th Cir. 1980) (holding that defendants’ “general argument that the trial court’s order intrudes on prison administration” cannot justify mail restrictions under Martinez); Battle v. Anderson, 376 F. Supp. 402, 425 (E.D. Okla. 1974) (outgoing mail restrictions not justified when imposed “solely to serve the administrative convenience of the defendants, without furthering any demonstrated interest in the orderly operation of the institution or the rehabilitation of its inmates”).
Moreover, even if cost savings were an available justification, defendant has provided no evidence to show that the postcard-only policy is “necessary or essential” to that interest. Again, the El Paso County Jail operated for years without a postcard-only policy, a fact that severely undercuts any argument that such a policy is “necessary or essential.” Defendant attaches to his Answer a one-page document that “compares the cost of postage and supplies for mailing letters from the Jail to the projected cost of postage and supplies for mailing postcards.” Def. Ans. at 2; see Exh. 2, Cost Chart. First, these alleged savings are projections only; the latest date on the document is April 13, 2010 – almost four months before the postcard-only policy went into effect. Second, even accepting these projections at face value, they amount to a savings of approximately $76 on postage and $43 on paper and envelopes each week in a jail with an average population of 1300. Such trivial savings cannot justify a restriction on First Amendment rights even under the more deferential Turner test, let alone the stricter Martinez standard. See Beerheide, 286 F.3d at 1192 (holding that because Department of Corrections failed to show that
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providing free kosher meals to Jewish prisoners would have more than a de minimis cost in terms of finances, staffing, and administration, it failed to show that charging for kosher meals was justified under Turner).
Finally, the Jail’s asserted savings apply only to indigent prisoners, to whom the Jail provides writing material and postage without charge. The Jail saves no money with regard to prisoners who buy their own writing material and postage from the Jail commissary. But the postcard-only policy applies to all prisoners, both indigent and non-indigent. Therefore, even if the cost rationale were legitimate under Martinez – and it is not – the policy nevertheless is fatally overbroad in its application to non-indigent prisoners. See Martinez, 416 U.S. at 413-14 (restriction on prisoner mail “that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad”).
C. Defendant’s Secret and Unwritten Amendment to the Policy Does Not Cure its Deficiencies
On August 6, 2010, defendant introduced Form DB219, titled “SINGLE PRIVILEGED LEGAL/NOTARIZED DOCUMENTS REQUEST FORM.” Def. Ans., Exh. A-3, Aug. 6, 2010 Form DB219 (attached hereto as Exh. 5). This form does not allow prisoners to send letters, but only to use an envelope to send a “single privileged legal/notarized document,” without any enclosures. 7 On August 12, 2010, defendant amended Form DB219 by adding a single sentence: “Inmates can petition for letters on a case by case basis, for special circumstances that are of legitimate legal or medical issues [sic].” Def. Ans., Exh. A-3, Aug. 12, 2010 Form DB219 (attached hereto as Exh. 6).8
7 “This is ONLY for single privileged legal/notarized documents that need to go to a personal address. … ONLY the single privileged legal/notarized document will be mailed; NO other correspondence will be allowed.” Exh. 5 (Aug. 6, 2010 Form DB 219).
8 Except for this single sentence added to Form DB219, all of defendant’s relevant written policies continue to assert that the only exception to the postcard-only rule is for legal mail. The inmate mail policy still states that envelopes and paper may be used only for “legal correspondence,” not for personal correspondence. See Def. Ans., Exh. A-1, Directive 10.4
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Then, shortly after Plaintiffs filed their class action complaint in this case, Defendant
asserted the existence of a new and unwritten provision, kept secret from prisoners, that if a
prisoner makes a written request for an exception to the postcard-only rule, that request “would
be considered” and, if it “appeared to be of legitimate concern for privacy,” would be granted.
Doc. No. 13, Defendant’s Response to Plaintiffs’ Motion to Certify Class and Appoint Class
Counsel (hereinafter “Def. Br.”), Exh. A-2 (Presley Aff.) (attached hereto as Exh. 10).
Defendant asserts that Form DB219 is intentionally worded to mislead prisoners, and that in fact
a request to send a letter in other circumstances, if a prisoner somehow knows to submit such a
request, will be considered. See Def. Br. at 2-3 (“Though the language of the form says that it is
to be used ‘for special circumstances that are of legitimate legal or medical issues,’ any request
for an exception will receive consideration”); Exh. 10 (Presley Aff.), ¶¶ 3, 4 (asserting that
exceptions are not limited to “legal or medical issues,” but jail officials “believed that having
such a restriction would curb frivolous requests”).
Obviously the postcard-only policy must stand or fall as it is written; defendant’s belated
assurance, after the filing of this suit, that it will informally read in additional exceptions is
entitled to no weight in this Court’s analysis. As the Supreme Court observed earlier this year:
[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. . . . The Government’s assurance that it will apply § 48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.
United States v. Stevens, 130 S. Ct. 1577, 1591 (2010).
(attached hereto as Exh. 7). The Standard Operating Procedures (SOP) still state that “Single Privileged Legal documents may be mailed to family members or friends, only if it contains copies of inmate’s legal papers or a Power of Attorney,” and that “Legal mail does not include mail to or from doctors, psychiatrists, or clergy.” See Def. Ans., Exh. A-2, SOP 05.04(IV)(E) (attached hereto as Exh. 8). And the Inmate Handbook still states: “’Legal mail’ is not mail sent to family members or friends, even if it contains copies of your legal papers. Legal mail does not include mail to or from doctors, psychiatrists, Child Protective Services, [or] Outside Journey.” See Def. Ans., Exh. A-4, Inmate Handbook, at 14 (attached hereto as Exh. 9).
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In any event, even if defendant had a written policy of making case-by-case exceptions to the postcard-only rule based on what Jail officials believe to be a “legitimate concern for privacy,” this policy would be a standardless exercise of unfettered discretion of the kind that has been repeatedly struck down on First Amendment grounds. In Martinez itself, the Supreme Court invalidated the outgoing prisoner mail regulations at issue there, finding that their vague nature “fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for mail censorship.” 416 U.S. at 415. Similarly, in Cofone v. Manson, 409 F. Supp. 1033 (D. Conn. 1976), the court relied on Martinez to invalidate a mail rule that allowed rejection of publications that “obstruct rehabilitative objectives,” holding that “the first amendment will not allow a catchall regulation which permits the exercise of unbridled discretion.” Id. at 1041.
In the absence of any standards to guide their discretion, Jail employees could allow prisoners to use envelopes to write to opposite-sex partners but not same-sex partners; to write to Christian ministers but not to rabbis or imams. This is a result the First Amendment does not permit. II. Plaintiffs Will Suffer Irreparable Injury if the Preliminary Injunction is Denied
As a general rule, a “plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). “When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Howard v. United States, 864 F. Supp. 1019, 1028 (D. Colo. 1994).
More specifically, “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Pacific Frontier v. Pleasant Grove City, 414 F.3d
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1221, 1235 (10th Cir. 2005) ((quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Heideman v. South Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (holding that even a “minimal restriction” on the manner in which dancers may convey their artistic message constitutes irreparable injury). Accordingly, when government action threatens First Amendment rights, as in this case, there is a presumption of sufficient irreparable injury to warrant a preliminary injunction. Cmty. Communications Co. v. City of Boulder, 660 F.2d 1370, 1376 (10th Cir. 1981). III. The Balance of Equities Tips Sharply in Plaintiffs’ Favor
In this case, the balance of equities clearly favors the plaintiffs. The postcard-only policy heavily burdens the First Amendment rights of both prisoners and their free-world correspondents – a burden that constitutes irreparable injury as a matter of law. By contrast, the Defendant will suffer no significant harm if the policy is temporarily enjoined. The preliminary injunction would merely require the Jail to return to a mail policy under which it – and every other jail in Colorado – operated for many years, apparently without incident. Accordingly, the balance of equities tips sharply in plaintiffs’ favor. See American Civil Liberties Union v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999) (“the threatened injury to Plaintiffs' constitutionally protected speech outweighs whatever damage the preliminary injunction may cause Defendants' inability to enforce what appears to be an unconstitutional statute”). IV. The Injunction is in the Public Interest
“[A]s far as the public interest is concerned, it is axiomatic that the preservation of First Amendment rights serves everyone’s best interest.” Local Org. Comm., Denver Chap., Million Man March v. Cook, 922 F. Supp. 1494, 1501 (D. Colo. 1996); accord Elam Constr. v. Reg. Transp. Dist., 129 F.3d 1343, 1347 (10th Cir. 1997) (“The public interest . . . favors plaintiffs' assertion of their First Amendment rights”); Johnson, 194 F.3d at 1163 (“the preliminary
14

Case 1:10-cv-02242-WYD -KLM Document 19 Filed 11/10/10 USDC Colorado Page 15 of 16
injunction will not be adverse to the public interest as it will protect the free expression” of Internet users). The injunction plaintiffs seek would serve the public interest while leaving Jail officials fully capable of addressing legitimate security concerns, just as they were before the postcard-only policy was adopted. V. No Security Should Be Required
Fed. R. Civ. P. 65(c) provides that a preliminary injunction may issue “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongly enjoined or restrained.” However, “trial courts have wide discretion under Rule 65(c) in determining whether to require security,” RoDa Drilling Co., 552 F.3d at 1215 (internal quotations omitted), and may decline to require security in appropriate cases. See, e.g., Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003) (no bond necessary where there was no showing of harm from injunction); Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (finding no bond necessary where plaintiff had strong likelihood of success on merits).
This is a case in which plaintiffs have a strong likelihood of success on the merits, and defendant will suffer no harm from the injunction. Accordingly, no security should be required.
CONCLUSION For the foregoing reasons, the motion for preliminary injunction should be granted. The Court should enjoin the defendant from continuing to enforce the challenged postcard-only policy, or any other policy that limits outgoing mail to postcards, thus restoring the status quo that existed before this controversy began. Respectfully submitted, November 10, 2010.
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s/Mark Silverstein___________________ Mark Silverstein Rebecca T. Wallace American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net s/David C. Fathi___________________ David C. Fathi Director National Prison Project of the ACLU Foundation, Inc. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org Not admitted in DC; practice limited to federal courts Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that on November 10, 2010 I electronically filed the foregoing PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following address: Amy R. Folsom - amyfolsom@elpasoco.com Charles C. Greenlee - charlesgreenlee@elpasoco.com
s/Debra Woods__________
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 Case 1:10-cv-02242-WYD -KLM Document 25 Filed 11/22/10 USDC Colorado Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. IO-cv-02242-WYD-KLM
Michael Jason Martinez; Elizabeth Fritz; Thomas Trujillo; Amber Hugenot; Gary Harrison; Robert Rumpf; and Damian Gradeless on behalf ofthemselves and all others similarly situated,
Plaintiffs,
v.
Terry Maketa, in his official capacity as EI Paso County Sheriff,
Defendant.

PROTECTIVE ORDER
~\/~o~f1.,..I"","'h~ =4,-
Upon a~ l'I'ing of good Cat1~C iii Stll'l'l'!lt ef teE entry of a protective order to protect the discovery and dissemination of confidential information or information which will improperly annoy, embarrass, or oppress any party, witness, or person providing discovery in this case, IT IS ORDERED:

,,~
IV

I. This Protective Order shall apply to all documents, materials, and information, including without limitation, documents produced, answers to interrogatories, responses to requests for admission, deposition testimony, and other information disclosed pursuant to the disclosure or discovery duties created by the Federal Rules of Civil Procedure.

2. As used in this Protective Order, "document" is defined as provided in Fed. R. Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning of this term.

3. Information designated "CONFIDENTIAL" shall be information that is confidential and implicates common law and statutory privacy interests of (a) current or former inmates of the EI Paso County Jail; and/or (b) law enforcement records. CONFIDENTIAL information shall not be disclosed or used for any purpose except the preparation and trial of this case.

Case 1:10-cv-02242-WYD -KLM Document 25 Filed 11/22/10 USDC Colorado Page 2 of 5
4. CONFIDENTIAL documents, materials, and/or information (collectively "confidential information") shall not, without the consent of the party or entity producing it or further Order of the Court, be disclosed except that such information may be disclosed to:
(a) attorneys actively working on this case; (b) persons regularly employed or associated with the attorneys actively working on the case whose assistance is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this case; (c) the parties, including the EI Paso County Sheriffs Office, the ACLU, and designated representatives for the entities; (d) expert witnesses and consultants retained in connection with this proceeding, to the extent such disclosure is necessary for preparation, trial or other proceedings in this case; (e) the Court and its employees ("Court Personnel"); (f) stenographic reporters who are engaged in proceedings necessarily incident to the conduct of this action; (g) deponents, witnesses, or potential witnesses; and (h) other persons by written agreement of the parties.
4.5 Information designated "CONFIDENTIAL-Attorneys' Eyes Only" shall be information that is confidential and implicates common law and statutory privacy interests of the EI Paso County Sheriffs Office. CONFIDENTIAL-Attorneys' Eyes Only information shall not be disclosed or used for any purpose except the preparation and trial of this case, and more specifically shall never be disclosed to any of the named Plaintiffs in this case; to any of Plaintiffs' counsel's other clients, whether or not they are or become parties to this case; to any other present or former inmate of the EI Paso County Jail; or to any other individual or entity except as stated in this Order. Information designated "CONFIDENTIAL-Attorneys' Eyes Only" shall not, without the consent of the party or entity producing it or further Order of the Court, be disclosed except that such information may be disclosed to:
(a) attorneys actively working on this case; (b) persons regularly employed or associated with the attorneys actively working on the case whose assistance is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this case; (c) persons regularly employed by the El Paso County Sheriffs Office; (d) expert witnesses and consultants retained in connection with this proceeding, to the extent such disclosure is necessary for preparation, trial or other proceedings in this case; (e) the Court and its employees ("Court Personnel"); (f) stenographic reporters who are engaged in proceedings necessarily incident to the conduct of this action;
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(g) other persons by written agreement of the parties.

5. Prior to disclosing any CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only information to any person listed above (other than counsel, persons employed by counsel, Court Personnel and stenographic reporters), counsel shall provide such person with a copy of this Protective Order and obtain from such person a written acknowledgment stating that he or she has read this Protective Order, understands its terms and agrees not to further disclose the information, and agrees to be subject to in camera review by the Court if good cause for review is demonstrated by opposing counsel.

6. Documents are designated as CONFIDENTIAL or CONFIDENTIAL-

Attorneys' Eyes Only by placing or affixing on them (in a manner that will not interfere with

their legibility) the following or other appropriate notice: "CONFIDENTIAL" or "or

CONFIDENTIAL-Attorneys' Eyes Only." Any information designated by a party as

CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only must first be reviewed by a

lawyer who will certify that the designation as CONFIDENTIAL or CONFIDENTIAL-

Attorneys' Eyes Only is based on a good faith belief that the information is confidential or

otherwise entitled to protection under Fed. R. Civ. P. 26(c)(I). Further, parties and attorneys

designating documents as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only

represent that such documents contain information in which there is a legitimate pt'!vale interest

as referenced in D.C.Colo.LCivR 7.2(C)(2).

rr; IJ'~

7. Whenever a deposition involves the disclosure of CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only information, the deposition or portions thereof shall be designated as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only and shall be subject to the provisions of this Protective Order. Such designation shall be made on the record during the deposition whenever possible, but a party may designate portions of depositions as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only after transcription, provided written notice of the designation is promptly given to all counsel of record within thirty (30) days after notice by the court reporter of the completion of the transcript.

8. A party may object to the designation of particular information as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only by giving written notice to the party designating the disputed information. The written notice shall identify the information to which the objection is made. If the parties cannot resolve the objection within ten (l0) business days after the time the notice is received, it shall be the obligation of the party designating the information as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only to file an appropriate motion requesting that the Court determine whether the disputed information should be subject to the terms of this Protective Order within thirty (30) days of the aforementioned notice. If such a motion is timely filed, the disputed information shall be treated as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only under the terms of this Protective Order until the Court rules on the motion. If the designating party fails to file such a

3

Case 1:10-cv-02242-WYD -KLM Document 25 Filed 11/22/10 USDC Colorado Page 4 of 5

motion within the prescribed time, the disputed information shall lose its designation as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only and shall not thereafter be treated as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only in accordance with this Protective Order. In connection with a motion filed under this provision, the party designating the information as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only shall bear the burden of establishing that good cause exists for the disputed information to be treated as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only.

9. A party contemplating filing with the Court a document or documents designated CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only pursuant to and protected by this Protective Order must comply with the requirements of D.C.Colo.LCivR 7.2. A party seeking to file with the Court any document or documents designated CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only pursuant to and protected by this Protective Order, and which have been designated CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only by another party, may request that the designating party provide the information required by D.C.Colo.LCivR 7.2(C). Such request shall be made by notifying counsel for the designating party in writing at least ten (10) business days before the filing is to occur. If such a request is timely made, counsel for the party that has designated the document(s) CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only shall, within five (5) business days, respond in writing providing the information required by D.C.Colo.LCivR 7.2(C). If no such timely request is made, the party seeking to file the CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only document(s) must in good faith supply the information required by D.C.Colo.LCivR 7.2(C). If the party seeking to file the CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only document(s) made a timely request and did not receive a written response within five (5) business days, that party shall notify the Court and the Court will advise the parties regarding how to proceed.

10. At the conclusion of this case, unless other arrangements are agreed upon, each document and all copies thereof which have been designated as CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only shall be returned to the party that designated it CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only, or the parties may elect to destroy CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only documents. Where the parties agree to destroy CONFIDENTIAL or CONFIDENTIAL-Attorneys' Eyes Only documents, the destroying party shall provide all parties with an affidavit confirming the destruction.

11. This Protective Order may be modified by the Court at any time for good cause

sho~lIswiR8 1<stiro@ ts all flarti@S aRQ iR 8f!f!l'JRl!tRit) reI them to be Heald.

~

4

- . .Case 1:10-cv-02242-WYD -KLM Document 25 Filed 11/22/10 USDC Colorado Page 5 of 5
Dated this )';)~" day of A@v~~ tr , 201~.
BY THE COURT:
5

 
 Case 1:1 0-cv-02242-WYD -KLM Document 37 Filed 12/20/10 USDC Colorado Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley y, Daniel
Civil Action No. 10-cv-02242-WYD-KLM MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
TERRY MAKETA, in his official capacity as EI Paso County Sheriff, Defendant.
STIPULATED ORDER GRANTING PRELIMINARY INJUNCTION
In this case, brought pursuant to 42 U.S.C. § 1983, Plaintiffs - prisoners at the EI Paso County Jail in Colorado Springs, Colorado ("the Jail") -- challenge the Jail's policy restricting prisoners' outgoing correspondence, with certain exceptions, to 4 x 6 inch postcards supplied by the Jail ("the postcard-only policy,,).1 Plaintiffs allege that this policy violates their rights under the First and Fourteenth Amendments to the United States Constitution and Article II, sections 10 and 25 of the Colorado Constitution. Defendant Terry Maketa, the Sheriff of EI Paso County, denies these allegations.
The parties have stipulated to the following undisputed facts:
1 This policy is set forth in an April 20, 2010 memorandum to "All Concerned Personnel" from Commander William Mistretta, subject "Directive 1O.04/lnmate Mail/Post Cards."

Case 1:1 0-cv-02242-WYD -KLM Document 37 Filed 12/20/10 USDC Colorado Page 2 of 4
The 4 x 6 [inch] postcards allow inmates less writing space than is available in a two or three-page, double-sided lelter. The new policy also prohibits inmates from enclosing expressive or artistic drawings they have made, newspaper or magazine clippings, religious literature, or other writings they wish to share. Inmates cannot use an envelope to write a letter-to-the-editor, to seek spiritual guidance from clergy, to provide information to investigative reporters, or to submit their own writings to such periodicals as the Colorado Springs Independent or Prison Legal News. (ECF No. 17, Proposed Scheduling Order, at 9, Undisputed Fact n.) On November 10, 2010, Plaintiffs filed a Motion for Preliminary Injunction, seeking to enjoin enforcement of the postcard-only policy. Defendant filed a response on November 24, and Plaintiffs filed a reply on December 10, 2010. Based on the stipulation of the parties and the entire record in this case, the Court makes the following Findings of Fact and Conclusions of Law, and enters the following Order:
Findings of Fact and Conclusions of Law 1. Plaintiffs have demonstrated a likelihood of success on the merits of their claims. 2. Plaintiffs have demonstrated that they will suffer irreparable harm in the absence of preliminary injunctive relief. 3 The balance of equities tips in Plaintiffs' favor. 4. The preliminary injunction set forth below is in the public interest. 5. The preliminary injunction set forth below is narrowly drawn, extends no further than necessary to correct the harm the Court finds requires preliminary relief, and is the least intrusive means necessary to correct that harm.
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Order Now, therefore, IT IS ORDERED: 1. Plaintiffs' and Defendant's Joint Motion to Enter Stipulated Preliminary Injunction and for Further Relief (ECF No. 36 filed December 17, 2010) is GRANTED. In light of this motion, Plaintiff's Motion for Preliminary Injunction (ECF No. 19 filed November 10, 2010) is DENIED AS MOOT. 2. Pending final judgment in this matter, defendant Terry Maketa, his successors, officers, agents, servants, employees, and attorneys, and all others in active concert or participation with them, are ENJOINED from enforcing the postcardonly policy, or any other policy that limits prisoners' outgoing mail to postcards. 3. Defendant shall take immediate steps to re-supply the Jail's inventory of paper and envelopes for use by prisoners for outgoing correspondence. The EI Paso County Jail may keep its existing inventory of postcards for sale to inmates who voluntarily choose to buy the postcards, but it shall not compel any inmate to use said postcards for correspondence. 4. No security shall be required for the issuance of this preliminary injunction. See RoOa Orilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009) ("our case law indicates that trial courts have 'wide discretion under Rule 65(c) in determining whether to require security, ...."') (quoting Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1206 (10th Cir. 2003) (internal quotation marks omitted)). 5. The hearing on the Motion for Preliminary Injunction set for Wednesday, December 22,2010, at 9:00 a.m. is VACATED.
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Dated: December 20,2010

BY THE COURT:

sl Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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 Case 1:10-cv-02242-WYD -KLM Document 56 Filed 03/31/11 USDC Colorado Page 1 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02242-WYD-KLM MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS, on behalf of themselves and all others similarly situated,
Plaintiffs, and CALLIE GONZALES,
Plaintiff-Intervenor, v. TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
ORDER
THIS MATTER is before the Court on two motions filed March 28, 2011: the parties’ Joint Motion to Approve Resolution of Class Action and Plaintiff’s Unopposed Motion for Attorneys’ Fees. For the reasons set forth below, the Joint Motion to Approve Resolution of Class Action is granted in part and deferred in part. Plaintiff’s Unopposed Motion for Attorneys’ Fees is deferred.
By way of background, this class action was brought pursuant to 42 U.S.C. § 1983 by Plaintiffs, prisoners at the El Paso County Jail in Colorado Springs, Colorado, who are challenging the Jail’s policy restricting prisoners’ outgoing correspondence, with

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certain exceptions, to 4 x 6 inch postcards supplied by the Jail. Plaintiffs allege that this policy violates their rights under the First and Fourteenth Amendments to the United States Constitution and Article II, sections 10 and 25 of the Colorado Constitution.
I first address the Joint Motion to Approve Resolution of Class Action. The motion notes that on February 1, 2011, the parties filed a Joint Motion to Hold Case in Abeyance Pending Finalization of Settlement. That document outlined the terms of the resolution to which the parties had agreed. Magistrate Judge Mix granted the motion and ordered all deadlines in the case stayed until February 28, 2011. She further ordered the parties to file joint stipulations regarding resolution of this case.
The parties have memorialized their Joint Stipulations Supporting Resolution of Class Action which they contend support this Court’s approval of the proposed resolution of this case. These Stipulations are attached to the Joint Motion. (ECF No. 55-2.) The parties stipulated therein, among other things, that the Court should grant the pending motion for class certification pursuant to Fed. R. Civ. P. 23(a) and (b)(2), appoint counsel for the plaintiff class, issue a permanent injunction incorporating the terms of the preliminary injunction that the Court entered on December 21, 2010, require Defendant to pay Plaintiffs’ reasonable costs and attorney fees’ in the amount of $60,000 pursuant to Rule 23(h), issue a notice pursuant to Rule 23(e) to class members of the proposed resolution of the case that Defendant shall post within the El Paso County Jail, and set a hearing to determine whether the resolution is fair, adequate and reasonable. The parties request in their Joint Motion that this relief be granted.
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The parties agree that posting the notice within the jail in the manner set forth in the Joint Stipulations is a reasonable way to notify all class members who would be bound by the proposed resolution of the case. The parties also agree in the Joint Motion that the proposed resolution provides all the relief requested in the Complaint, is fair to the absent members of the class and is reasonable and adequate.
Having reviewed the motion and being fully advised in the premises, I find that the motion should be granted in part and deferred in part. I grant the motion to the extent it asks that I grant the pending motion for class certification pursuant to Fed. R. Civ. P. 23(a) and (b)(2), appoint counsel for the plaintiff class, issue a notice pursuant to Rule 23(e) to class members of the proposed resolution of the case that Defendant shall post within the El Paso County Jail, and set a hearing to determine whether the resolution is fair, adequate and reasonable. The fairness hearing is set for Wednesday, May 25, 2011, at 3:00 p.m. I defer the request to approve resolution of the class action or the relief sought in connection therewith, including issuance of a permanent injunction and an award of attorneys’ fees and costs, as well as Plaintiff’s Unopposed Motion for Attorneys’ Fees, until the fairness hearing.
In conclusion, it is ORDERED that the Joint Motion to Approve Resolution of Class Action (ECF No. 55) is GRANTED IN PART AND DEFERRED IN PART as set forth in this Order. In accordance therewith, it is ORDERED that Plaintiffs’ Motion to Certify Class and Appoint Class Counsel (ECF No. 2) is GRANTED. It is
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FURTHER ORDERED that the proposed notice pursuant to Rule 23(e) to class members of the proposed resolution of the case attached to the Joint Motion to is APPROVED and is attached hereto. Defendant shall promptly post this notice within the El Paso County Jail as set forth in the Joint Motion. It is
FURTHER ORDERED that a hearing is set for Wednesday, May 25, 2011, at 3:00 p.m., to determine whether the resolution is fair, adequate and reasonable pursuant to Fed. R. Civ. P. 23(e). Finally, it is
ORDERED that Plaintiff’s Unopposed Motion for Attorneys’ Fees (ECF No. 54) is DEFERRED until the hearing.
Dated: March 31, 2011 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge
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Case 1:10-cv-02242-WYD -KLM Document 56 Filed 03/31/11 USDC Colorado Page 5 of 7
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02242-WYD-KLM MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS, on behalf of themselves and all others similarly situated,
Plaintiffs, and CALLIE GONZALES,
Plaintiff-Intervenor, v. TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
NOTICE TO EL PASO COUNTY JAIL PRISONERS
1. In August 2010, the El Paso County Jail implemented a new policy that, with certain exceptions, restricted prisoners’ outgoing mail to postcards supplied by the jail.
2. On September 14, 2010, seven prisoners filed a legal challenge to that policy, arguing that it violated prisoners’ First Amendment rights: Martinez v. Maketa, Civil Action No. 10-cv-02242-WYD-KLM, United States District Court, District of Colorado. The prisoners also filed a motion to certify the case as a class action.
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3. The lawsuit seeks a declaratory judgment and an injunction ordering the jail to stop what the lawsuit called the “postcard-only” policy. The lawsuit does not seek monetary damages on behalf of any prisoners.
4. On December 15, 2010, the jail rescinded the postcard-only policy and went back to the previous policy regarding outgoing correspondence. On December 20, 2011, pursuant to the parties’ agreement, the Court entered a preliminary injunction.
5. On March 31, 2011, the Court certified the case as a class action on behalf of a class defined as “all current and future prisoners in the El Paso County Jail who are subject to or affected by the postcard-only policy.”
6. The Court appointed attorneys working for the American Civil Liberties Union of Colorado and the ACLU National Prison Project to serve as counsel for the class.
7. The parties have now agreed to and proposed a settlement that will resolve all issues in the case. Pursuant to Fed. R. Civ. P. 23(e), this notice of provided to class members to advise them of the terms of the proposed settlement, which are summarized as follows:
a. The Court will issue a permanent injunction banning the postcardonly policy or any other policy that restricts prisoners’ outgoing mail to postcards;
b. Counsel for the plaintiffs are entitled to an award of reasonable attorney’s fees and costs to be paid by the Defendant. The parties have agreed that $60,000 represents a reasonable amount.
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8. The Court has set a date of Wednesday, May 25, 2011, for a hearing to determine whether the settlement is fair, reasonable, and adequate. Any class member who objects to the proposed settlement may submit an objection. Objections must be sent to and filed with the Clerk of the Court, United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, Room A-105, 901 19th Street, Denver, Colorado 80294-3589, and must be postmarked no later than Friday, April 15, 2011. The Objection must reference the case name and case number, and contain a statement of the reasons for the objection. Responses to objections shall be filed by Friday, May 4, 2011.
Dated: March 31, 2011 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02242-WYD-KLM
MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS, on behalf of themselves and all others similarly situated,
Plaintiffs, and
CALLIE GONZALES,
Plaintiff-Intervenor,
v.
TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
ORDER
This matter is before the Court on the Parties' Joint Motion to Approve Resolution
of Class Action and Plaintiffs' Unopposed Motion for Attorneys' Fees.
I. PROCEDURAL BACKGROUND
On September 14, 2010, Plaintiffs filed a class action complaint challenging the
El Paso County Jail's recently implemented postcard-only policy, which limited the vast
majority of outgoing prisoner correspondence to postcards. (ECF No. 1.) Plaintiffs
alleged in their Class Action Complaint that the El Paso County Jail's postcard-only
policy violated the free speech rights of inmates under the United States and Colorado

Constitutions. In this lawsuit, Plaintiffs sought no money damages, but only demanded that El Paso County Jail rescind its postcard-only policy.
On November 10, 2010, Plaintiffs filed a motion for preliminary injunction that this Court set for hearing on December 22, 2010. (ECF No. 21.) Days before the hearing, Defendant rescinded the postcard-only policy and, shortly thereafter, stipulated that class certification in this case should be granted and that Plaintiffs were entitled to reasonable costs and attorneys' fees incurred in connection with this litigation. (ECF No. 36.) On December 20, 2010, this Court entered a stipulated order granting a preliminary injunction that enjoined Defendant from enforcing the postcard-only policy or any other policy that limits prisoners outgoing mail to postcards. (ECF No. 37.)
The parties have since made the following stipulations, inter alia: ! Plaintiffs and Defendant jointly stipulate that the Court should make the findings required for prospective relief under 18 U.S.C. § 3626(a)(1)(A) and issue a permanent injunction incorporating the terms of the preliminary injunction that the Court entered in this case on December 20, 2010. ! Plaintiffs and Defendant agree that Defendant will pay Plaintiffs' reasonable costs and attorneys' fees in this matter. Plaintiffs and Defendant further agreed that an award of $60,000.00 is reasonable in this case. (ECF No. 55., Ex. 2.) On March 28, 2011, Plaintiffs filed an unopposed motion for attorneys' fees requesting the court award $60,000 in attorneys’ fees and costs and find that this represents a reasonable fee and costs award in this case. (ECF No. 54.) That same day, the parties filed a Joint Motion to Approve Resolution of the Class Action,
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requesting this Court: (1) set a date for a hearing on the proposed resolution; (2) direct that reasonable notice be sent to the class members; (3) grant the motion to certify the class; (4) permanently enjoin the postcard-only policy challenged in this case; and (5) grant Plaintiffs' motion for attorneys' fees and costs. (ECF No. 55.)
On March 31, 2011, this Court granted in part and deferred in part the parties Joint Motion to Approve Resolution of Class Action. (ECF No. 56.) The Court granted the pending motion for class certification and appointed Plaintiffs' counsel as class counsel. The Court approved the notice to be given to class members in the El Paso County Jail, and set a hearing for May 25, 2011, to determine whether the proposed resolution of the case is fair, reasonable and adequate pursuant to Fed. R. Civ. P. 23(e)(2). The Court deferred Plaintiffs' Unopposed Motion for Attorneys' Fees until the hearing. (Id.) Class members were given a deadline of April 15, 2011 to submit objections to the proposed resolution of the case. There were no objections from class members.
On May 25, 2011, the Court held a hearing regarding the fairness, adequacy and reasonableness the resolution of the case and heard argument from counsel. II. FINDINGS AND CONCLUSIONS OF LAW
The Court, having heard argument in this matter and having reviewed the entire record before the Court, makes the following findings and conclusions of law:
A. The Proposed Resolution Is Fair, Reasonable and Adequate Federal Rule of Civil Procedure 23(e)(2) states that if a proposed class action settlement “would bind class members, the court may approve it only after a hearing
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and on finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). Pursuant to this rule and after a hearing on the matter, I find that the proposed resolution is not only fair to the absent members of the class, it is also reasonable and adequate. The Tenth Circuit outlines four factors that the trial court should consider when determining whether a settlement is fair, reasonable, and adequate: (1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002) (citing Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir. 1984)).
Regarding factor one, I find the resolution was fairly and honestly negotiated. The parties engaged in extensive discovery that was sufficient to allow them to evaluate the merits of the claims and defenses, as well as the efficacy of the settlement. Defendant produced thousands of pages of documents, and Plaintiff took an extensive Fed. R. Civ. P. 30(b)(6) deposition. The parties also worked closely to craft a resolution of this matter and to draft and file with this Court the numerous pleadings required to finalize this resolution. Regarding factors two and three, I find that these are directed at evaluating a proposed compromise. They are not applicable in this case since the proposed resolution provides all the relief requested in Plaintiffs' Complaint. Regarding
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factor four, I find that the parties agree that the proposed resolution is fair and reasonable. (ECF No. 55, paragraph 9.)
I have considered the terms of the proposed resolution, and I independently find that they are fair, reasonable, and adequate under the circumstances, because they provide Plaintiffs all the relief sought in their Complaint. Based on the foregoing, I find as a matter of law that the proposed resolution is fair, reasonable and adequate pursuant to Fed. R. Civ. P. 23(e)(2).
B. An Attorneys' Fees and Costs Awardof $60,000 is Reasonable in This Case Defendant has stipulated that Plaintiffs are entitled to reasonable attorneys' fees and costs in this matter. (See ECF Nos. 43, 55.) Further, given that Defendant has stipulated to and asked the Court to enter a permanent injunction in this matter granting all the relief that Plaintiffs sought in their Complaint (rescission of the postcard-only policy), Plaintiffs are clearly the prevailing party in this action. Based on the foregoing, I find that Plaintiffs are entitled to reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988. See also Fed. R. Civ. P. 23(h) (“[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement”). The Court further finds that an attorneys' fees and costs award of $60,000 in this case is reasonable, considering Plaintiffs' downward departure from their calculated lodestar of approximately $90,000, the significance and scope of the case, the fact that Plaintiffs achieved in settlement all of the relief sought in their complaint, Defendant's
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continuing defense against Plaintiffs' claims, and Defendant's agreement that Plaintiffs' fee request in this case is reasonable.
I note that Plaintiffs' counsel reasonably expended significant effort and time in garnering complete relief for Plaintiffs. For instance, Plaintiffs' counsel: (1) travelled from Denver to the El Paso County Jail on numerous occasions to personally interview dozens of inmates; (2) engaged in correspondence with dozens of inmates; (3) created a comprehensive database to track inmate information; (4) drafted, processed, and analyzed the results of dozens of open records requests to jails in the state of Colorado; (5) thoroughly researched the class certification and constitutional issues involved in this case; (6) drafted detailed discovery requests; (7) retained and worked closely with an expert on jail security; (8) reviewed thousands of pages of discovery; (9) moved for and fully briefed a motion for class certification, a motion for leave to intervene, and a motion for preliminary injunction; (10) carefully prepared for and took a Rule 30(b)(6) deposition; and (11) finalized all preparations for a complete presentation of Plaintiffs' case at the preliminary injunction hearing scheduled for December 22, 2010. Given these efforts, I find a fees and costs award to Plaintiffs of $60,000 is reasonable in this case.
C. Plaintiffs have Demonstrated that they are Entitled to a Permanent Injunction of the Postcard-Only Policy
The Parties have stipulated to the following facts: The 4 x 6 postcards allow inmates less writing space than is available in a two or three-page, double-sidedletter. The new policy also prohibits inmates from enclosing expressive or artistic drawings they have made, newspaper or magazine clippings, religious literat ure, or other writings they wish to
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share. Inmates cannot use an envelope towrite a letter-to-the-editor, to seek spiritual guidance from clergy, to provide information to investigative reporters, or to submit their own writni gs to such periodicals as the Colorado Springs Independent or Prison Legal News. (ECF No. 17, Proposed Scheduling Order, at 9, Undisputed Fact n.) The Parties have further stipulated that this Court should issue a permanent injunction incorporating the terms of preliminary injunction the Court previously entered in this case. (ECF No. 55, Ex. 2, paragraph 2.) Based on the stipulations of the parties, and the entire record of the case, the Court finds: (1) Plaintiffs suffered irreparable injury in the form of violation of their First Amendment rights; (2) remedies at law, including monetary relief, are inadequate to compensate for First Amendment violations; (3) the balance of equities tips in Plaintiffs' favor, because a permanent injunction would solely require the El Paso County Jail to return to a mail policy under which it had operated for many years apparently without incident; and (4) the public interest will not be disserved by a permanent injunction because the preservation of First Amendment rights serves everyone's best interest. D. The Permanent Injunction Complies with the Prison Litigation Reform Act Prior to granting injunctive relief in a prison conditions case, the Prison Litigation Reform Act requires this Court to find that the relief is narrowly drawn, extends no further than necessary to correct the violation of Plaintiffs' constitutional rights, and is the least intrusive means necessary to correct the violation of Plaintiffs' constitutional rights. 18 U.S.C. § 3626(a)(1)(A). Given that the entire basis of Plaintiffs' claims against Defendant is that the El Paso County Jail's postcard-only policy violates their
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First Amendment rights, I find that enjoining the postcard-only policy, or any other policy that limits prisoners' outgoing mail to postcards, is narrowly drawn relief that extends no further than necessary to correct the violation of Plaintiffs' constitutional rights, and is the least intrusive means necessary to correct the violation of Plaintiffs' constitutional rights. III. CONCLUSION
Based upon the foregoing, it is ORDERED that the parties' Joint Motion to Approve Resolution of Class Action (ECF No. 55) is GRANTED. In accordance therewith, Defendant Terry Maketa, his successors, officers, agents, servants, employees, and attorneys, and all others in active concern or participation with them, are PERMANENTLY ENJOINED from enforcing the postcard-only policy, or any other policy that limits prisoners' outgoing mail to postcards. It is FURTHER ORDERED that Plaintiffs' Unopposed Motion for Attorneys' Fees (ECF No. 54) is GRANTED. In accordance therewith, Defendant is to forthwith pay Plaintiffs an attorneys' fee and costs award of $60,000. Finally, it is ORDERED that as all claims have been resolved, this case is DISMISSED. Dated this 7th day of June, 2011.
BY THE COURT:
s/ Wiley Y. Daniel WILEY Y. DANIEL, CHIEF UNITED STATES DISTRICT JUDGE
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 Case 1:10-cv-02242-WYD-KLM Document 55 Filed 03/28/11 USDC Colorado Page 1 of 5
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02242-WYD-KLM MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS on behalf of themselves and all others similarly situated,
Plaintiffs, and CALLIE GONZALES,
Plaintiff-Intervenor, v. TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
JOINT MOTION TO APPROVE RESOLUTION OF CLASS ACTION
Counsel for the parties have agreed to a resolution of this case. In furtherance thereof counsel for the parties file this Joint Motion to Approve Resolution of Class Action, and in support thereof state as follows:
1. On February 1, 2011, the parties filed a Joint Motion to Hold Case in Abeyance Pending Finalization of Settlement (Document 43). That document outlined the terms of the resolution to which the parties had agreed. The Court granted the motion and ordered all deadlines in the case stayed until February 28, 2011. It further ordered the parties to file their joint stipulations regarding resolution of this case by February 28, 2011. On March 1, 2011, the

Case 1:10-cv-02242-WYD-KLM Document 55 Filed 03/28/11 USDC Colorado Page 2 of 5
Court granted the parties an extension of time, until March 14, 2011, to file their joint stipulations regarding the resolution of this case.
2. In a separate filing submitted today, the parties have memorialized their joint stipulations that support this Court’s approval of the proposed resolution of this case.
Class certification 3. The parties have stipulated that this Court should grant the pending motion for class certification, thereby certifying, pursuant to Rule 23(b)(2), a class defined as: “all current and future prisoners in the El Paso County Jail who are subject to or affected by the postcardonly policy.” The parties have also stipulated that this Court should appoint Mark Silverstein, Rebecca T. Wallace, and David C. Fathi as counsel for the plaintiff class, pursuant to Rule 23(g).
Permanent injunction 4. The parties have stipulated to the entry of a permanent injunction incorporating the terms of the preliminary injunction that the Court entered in this case on December 21, 2010, which includes the findings required by the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A).
Attorneys’ fees and costs The parties have agreed that Defendant will pay Plaintiffs’ reasonable costs and attorneys’ fees in this matter. The parties have further agreed that an award of $60,000.00 is reasonable. Accordingly, in a separate filing today, Plaintiffs have submitted a motion for attorneys’ fees and costs in the amount of $60,000, pursuant to Fed. R. Civ. P. 23(h). The parties have also agreed that the Court’s approval of the documents filed today will release Terry Maketa, in his official capacity as El Paso County Sheriff (hereinafter “Defendant”), and any and all employees, agents, servants, assigns, attorneys, entities, employers, successors, insurers, and reinsurers, of the
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Defendant, and of El Paso County, the El Paso County Board of County Commissioners and the El Paso County Sheriff’s Office, from any and all further liability for any claims for injunctive and declaratory relief, and attorneys’ fees and costs against the Defendants arising out of Civil Action No. 10-cv-02242-WYD-KLM which are known or unknown, foreseen or unforeseen, arising out of the civil action identified herein, in exchange for the relief provided for herein. This language shall not be construed to prohibit Plaintiffs from seeking costs and attorney fees if it should be necessary to seek the Court’s enforcement of the permanent injunction.
Notice to the class 5. Rule 23(e)(1) requires that the Court must direct notice in a reasonable manner to all class members who would be bound by the proposed resolution of this case. 6. The parties have agreed on the proposed wording of the notice to class members, which is attached as Exhibit 1. 7. The parties have stipulated that posting the notice on the bulletin board of each of the wards within El Paso County Jail and individually delivering the notice to inmates who are in segregation, the infirmary, or otherwise do not have ready access to the bulletin boards, would direct notice in a reasonable manner to all class members who would be bound by the proposed resolution of this case. Notice to each individual class member is not necessary, as the proposed resolution does not require any class members to take action or do anything to receive the benefits of the resolution. 8. The parties request that the Court set a date for a hearing, pursuant to Rule 23(e)(2), to consider whether the proposed resolution is fair, reasonable, and adequate.
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The proposed resolution is fair, reasonable, and adequate.

9. The proposed resolution provides all the relief requested in the Complaint.

Accordingly, the proposed resolution is not only fair to the absent members of the class, it is also

reasonable and adequate.

10. Wherefore, the parties ask that the Court:

a. (1) Set a date for a hearing on the proposed resolution;

b. (2) Direct that reasonable notice be sent to the class members;

c. (3) Grant the motion to certify the class;

d. (4) Permanently enjoin the postcard-only policy challenged in this case; and

e. (5) Grant Plaintiffs’ motion for attorney fees and costs. Respectfully submitted this 28th day of March, 2011.

s/Rebecca T. Wallace____________ Mark Silverstein, Legal Director Rebecca T. Wallace, Staff Attorney AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
rtwallace@aclu-co.org

s/Charles C. Greenlee_____________ Charles C. Greenlee Legal Advisor EL PASO COUNTY SHERIFF’S OFFICE 210 South Tejon Street Colorado Springs, CO 80903 (719) 520-7100
Email: charlesgreenlee@elpasoco.com

David C. Fathi, Director* NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org

Amy R. Folsom Assistant County Attorney OFFICE OF THE COUNTY ATTORNEY OF EL PASO COUNTY 27 E. Vermijo Avenue Colorado Springs, CO 80903 (719) 520-6485 Email: amyfolsm@elpasoco.com

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

Counsel for Defendants

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Case 1:10-cv-02242-WYD-KLM Document 55-2 Filed 03/28/11 USDC Colorado Page 1 of 6
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02242-WYD-KLM MICHAEL JASON MARTINEZ; ELIZABETH FRITZ; THOMAS TRUJILLO; AMBER HUGENOT; GARY HARRISON; ROBERT RUMPF; and DAMIAN GRADELESS on behalf of themselves and all others similarly situated,
Plaintiffs, and CALLIE GONZALES,
Plaintiff-Intervenor, v. TERRY MAKETA, in his official capacity as El Paso County Sheriff,
Defendant.
JOINT STIPULATIONS SUPPORTING RESOLUTION OF CLASS ACTION
Counsel for the parties have agreed to a resolution of this case, and in furtherance thereof have agreed to certain stipulations, which are described herein.
1. Plaintiffs and Defendant jointly stipulate that the Court in this Civil Action should grant the pending motion for class certification pursuant to Fed. R. Civ. P. 23(a) and (b)(2), and should appoint Mark Silverstein, Rebecca T. Wallace, and David C. Fathi as counsel for the plaintiff class pursuant to Fed. R. Civ. P. 23(g).
2. Plaintiffs and Defendant jointly stipulate that the Court should make the findings required for prospective relief under 18 U.S.C. § 3626(a)(1)(A) and issue a permanent injunction

Case 1:10-cv-02242-WYD-KLM Document 55-2 Filed 03/28/11 USDC Colorado Page 2 of 6
incorporating the terms of the preliminary injunction that the Court entered in this case on December 21, 2010.
3. Plaintiffs and Defendant agree that Defendant will pay Plaintiffs’ reasonable costs and attorneys’ fees in this matter. Plaintiffs and Defendant further agreed that an award of $60,000.00 is reasonable in this case.
4. The parties have also agreed that the Court’s approval of the documents filed today will release Terry Maketa, in his official capacity as El Paso County Sheriff (hereinafter “Defendant”), and any and all employees, agents, servants, assigns, attorneys, entities, employers, successors, insurers, and reinsurers, of the Defendant, and of El Paso County, the El Paso County Board of County Commissioners and the El Paso County Sheriff’s Office, from any and all further liability for any claims for injunctive and declaratory relief, and attorneys’ fees and costs against the Defendants arising out of Civil Action No. 10-cv-02242-WYD-KLM which are known or unknown, foreseen or unforeseen, arising out of the civil action identified herein, in exchange for the relief provided for herein. This language shall not be construed to prohibit Plaintiffs from seeking costs and attorney fees if it should be necessary to seek the Court’s enforcement of the permanent injunction.
5. Plaintiffs and Defendant agree that, pending the Court’s approval and pursuant to Rule 23(e), Defendant shall post notice to class members of the proposed resolution of this case (attached hereto as Exhibit 1) on the bulletin board in each of the wards within the El Paso County Jail (and individually deliver the notice to inmates who are in segregation, the infirmary, or otherwise do not have ready access to the bulletin boards), within forty-eight (48) hours after the Court sets a date for a hearing, pursuant to Rule 23(e), to determine whether the resolution is fair, reasonable, and adequate. Plaintiffs and Defendant agree that posting the notice in such a
2

Case 1:10-cv-02242-WYD-KLM Document 55-2 Filed 03/28/11 USDC Colorado Page 3 of 6

manner is a reasonable way to notify all class members who would be bound by the proposed

resolution of this case.

APPROVED:

s/Rebecca T. Wallace__________ Mark Silverstein, Legal Director Rebecca T. Wallace, Staff Attorney AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO 400 Corona Street Denver, Colorado 80218 Telephone: (303) 777-5482 Fax: (303) 777-1773 Email: msilver2@att.net
rtwallace@aclu-co.org

Charles C. Greenlee___________ Charles C. Greenlee Legal Advisor EL PASO COUNTY SHERIFF’S OFFICE 210 South Tejon Street Colorado Springs, CO 80903 (719) 520-7100 Email: charlesgreenlee@elpasoco.com

David C. Fathi, Director* NATIONAL PRISON PROJECT OF THE ACLU FOUNDATION, INC. 915 15th Street NW, 7th Floor Washington, D.C. 20005 (202) 548-6603 Email: dfathi@npp-aclu.org
Counsel for Plaintiffs
*Not admitted in DC; practice limited to federal courts.

Amy R. Folsom Assistant County Attorney OFFICE OF THE COUNTY ATTORNEY OF EL PASO COUNTY 27 E. Vermijo Avenue Colorado Springs, CO 80903 (719) 520-6485 Email: amyfolsm@elpasoco.com
Counsel for Defendants

3

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 Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 1 of 7
NDISPO,TERMED
U.S. District Court District of Colorado (Denver) CIVIL DOCKET FOR CASE #: 1:10−cv−02242−WYD−KLM

Martinez et al v. Maketa Assigned to: Judge Wiley Y. Daniel Referred to: Magistrate Judge Kristen L. Mix Cause: 42:1983 Prisoner Civil Rights Plaintiff Michael Jason Martinez
Plaintiff Elizabeth Fritz
Plaintiff Thomas Trujillo

Date Filed: 09/14/2010 Date Terminated: 06/08/2011 Jury Demand: None Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question
represented by David Cyrus Fathi American Civil Liberties Union−DC 915 15th Street, N.W. 7th Floor Washington, DC 20005 202−548−6603 Fax: 202−393−4931 Email: dfathi@npp−aclu.org ATTORNEY TO BE NOTICED
Mark Silverstein American Civil Liberties Union−Denver 400 Corona Street Denver, CO 80218 303−777−5482 Fax: 303−777−1773 Email: msilver2@att.net ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace American Civil Liberties Union−Denver 303 East 17th Street Suite 350 Denver, CO 80203 303−777−5482 Fax: 303−777−1773 Email: rtwallace@aclu−co.org ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED
represented by David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 2 of 7

Plaintiff Amber Hugenot
Plaintiff Gary Harrison
Plaintiff Robert Rumpf
Plaintiff Damian Gradeless on behalf of themselves and all others similarly situated

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

V. Intervenor Plaintiff Callie Gonzales

represented by

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 3 of 7
David Cyrus Fathi (See above for address) ATTORNEY TO BE NOTICED
Mark Silverstein (See above for address) ATTORNEY TO BE NOTICED
Rebecca Teitelbaum Wallace (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Terry Maketa in his official capacity as El Paso County Sheriff

represented by Amy R. Folsom El Paso County Attorney's Office−Main Office 200 South Cascade Colorado Springs, CO 80903 719−520−6485 Fax: 719−520−4387 Email: amyfolsom@elpasoco.com ATTORNEY TO BE NOTICED
Charles Clark Greenlee El Paso County Sheriff's Office 27 East Vermijo Avenue Colorado Springs, CO 80903 719−520−7264 Fax: 719/520−7419 Email: charlesgreenlee@elpasoco.com ATTORNEY TO BE NOTICED

Date Filed 09/14/2010
09/14/2010 09/17/2010 09/17/2010 09/21/2010 09/23/2010 09/24/2010

# Docket Text
1 Class Action COMPLAINT for Injunctive and Declaratory Relief against Terry Maketa (Filing fee $ 350, Receipt Number 31267) Summons Issued, filed by Damian Gradeless, Robert Rumpf, Thomas Trujillo, Gary Harrison, Michael Jason Martinez, Amber Hugenot, Elizabeth Fritz. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet, # 3 Receipt)(lyg, ) (Entered: 09/15/2010)
2 MOTION to Certify Class and Appoint Class Counsel, by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, and Thomas Trujillo. (lyg, ) (Entered: 09/15/2010)
3 MEMORANDUM RETURNING CASE for reassignment by Senior District Judge Babcock. (sah, ) (Entered: 09/17/2010)
4 LETTER REASSIGNING CASE. Case reassigned to Chief Judge Wiley Y. Daniel for all further proceedings. Judge Lewis T. Babcock no longer assigned to the case. (sah, ) (Entered: 09/17/2010)
5 SUMMONS Returned Executed by All Plaintiffs. Terry Maketa served on 9/15/2010, answer due 10/6/2010. (Silverstein, Mark) (Entered: 09/21/2010)
6 ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix by Chief Judge Wiley Y. Daniel on 9/23/10. (wydcd, rrk) (Entered: 09/23/2010)
7 ORDER Scheduling Conference set for 11/29/2010 10:30 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix. by Magistrate Judge Kristen L. Mix on 9/24/2010. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(erv, ) (Entered: 09/24/2010)

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 4 of 7

09/29/2010 09/29/2010 10/06/2010
10/06/2010 10/07/2010 10/07/2010 10/21/2010
10/25/2010 10/28/2010 11/05/2010 11/10/2010 11/10/2010 11/10/2010 11/12/2010
11/19/2010

8 NOTICE of Entry of Appearance by Amy R. Folsom on behalf of Terry Maketa (Folsom, Amy) (Entered: 09/29/2010)
9 NOTICE of Entry of Appearance by Charles Clark Greenlee on behalf of Terry Maketa (Greenlee, Charles) (Entered: 09/29/2010)
10 Defendant's ANSWER to 1 Complaint, by Terry Maketa. (Attachments: # 1 Exhibit A−1, Sheriff's Office Directive, # 2 Exhibit A−2,Detention Bureau Standard Operating Procedure excerpt, # 3 Exhibit A−3, Sheriff's Office Form DB219, # 4 Exhibit A−4, Inmate Handbook excerpt)(Folsom, Amy) (Entered: 10/06/2010)
11 OBJECTIONS to Plaintiffs' Motion to Certify Class and Appoint Class Counsel by Defendant Terry Maketa. (Attachments: # 1 Exhibit A−1, Sheriff's Office Form DB219, # 2 Exhibit A−2, Affidavit of Bureau Chief Paula Presley)(Folsom, Amy) (Entered: 10/06/2010)
12 Docket Annotation re: 11 Objections, To be Refiled as a Response to a Motion or a Brief in Opposition. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (erv2, ) (Entered: 10/07/2010)
13 RESPONSE to 2 MOTION to Certify Class filed by Defendant Terry Maketa. (Attachments: # 1 Exhibit A−1, Sheriff's Office Form DB219, # 2 Exhibit A−2, Affidavit of Bureau Chief Paula Presley)(Folsom, Amy) (Entered: 10/07/2010)
14 Unopposed MOTION for Extension of Time to File Response/Reply as to 2 MOTION to Certify Class by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo. (Attachments: # 1 Proposed Order (PDF Only))(Wallace, Rebecca) (Entered: 10/21/2010)
15 MINUTE ORDER granting 14 Plaintiffs' Unopposed Motion for Extension of Time to File Reply in Support of 2 Motion for Class Certification on or by Thursday, October 28, 2010. by Chief Judge Wiley Y. Daniel on 10/25/2010.(erv, ) (Modified on 10/27/2010 added link to Motion)(erv, ). (Entered: 10/26/2010)
16 REPLY to Response to 2 MOTION to Certify Class filed by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo. (Attachments: # 1 Affidavit Declaration)(Silverstein, Mark) (Entered: 10/28/2010)
17 Proposed Scheduling Order by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo. (Wallace, Rebecca) (Entered: 11/05/2010)
18 Unopposed MOTION to Intervene by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo. (Attachments: # 1 Proposed Document)(Silverstein, Mark) (Entered: 11/10/2010)
19 MOTION for Preliminary Injunction by Plaintiffs Damian Gradeless, Amber Hugenot. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit)(Silverstein, Mark) (Entered: 11/10/2010)
20 Unopposed MOTION to Intervene by Callie Gonzales. (Attachments: # 1 Proposed Document, # 2 Proposed Order (PDF Only))(Silverstein, Mark) (Modified on 11/12/2010 corrected filer) (erv, ). (Entered: 11/10/2010)
21 ORDER Setting Hearing on 19 MOTION for Preliminary Injunction : Defendant shall file a response to the Motion for Preliminary Injunction by Wednesday, November 24, 2010. Plaintiffs may, if they wish, file a reply by Friday, December 10, 2010. Motion Hearing set for 12/22/2010 10:00 AM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. by Chief Judge Wiley Y. Daniel on 11/12/2010. (erv, ) (Entered: 11/12/2010)
22 Joint MOTION for Protective Order by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf. (Attachments: # 1 Proposed Order (PDF Only))(Wallace, Rebecca)

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 5 of 7

11/19/2010
11/22/2010
11/22/2010 11/23/2010 11/23/2010 11/24/2010
11/29/2010
12/10/2010 12/15/2010 12/15/2010
12/15/2010 12/15/2010 12/15/2010 12/17/2010

(Entered: 11/19/2010)
23 MEMORANDUM regarding 22 Joint MOTION for Protective Order filed by Robert Rumpf, Amber Hugenot, Elizabeth Fritz, Gary Harrison, Michael Jason Martinez, Damian Gradeless. Motion referred to Magistrate Judge Kristen L. Mix by Chief Judge Wiley Y. Daniel on 11/19/10. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 11/19/2010)
24 MINUTE ORDER; 22 Plaintiff's Unopposed Motion for Entry of Protective Order is GRANTED. It is further ORDERED that the Protective Order [22−1] supplied by the parties is accepted for filing and entered as an Order of the Court, with interlineations, as of today's date, by Magistrate Judge Kristen L. Mix on 11/22/2010.(klmcd ) (Modified on 11/23/2010 corrected typing error)(erv, ). (Entered: 11/22/2010)
25 PROTECTIVE ORDER, by Magistrate Judge Kristen L. Mix on 11/22/2010. (klmcd ) (Entered: 11/22/2010)
26 Unopposed MOTION for Leave to Present Remote Expert Testimony by Intervenor Callie Gonzales, Plaintiffs Damian Gradeless, Amber Hugenot. (Attachments: # 1 Proposed Order (PDF Only))(Wallace, Rebecca) (Entered: 11/23/2010)
27 MINUTE ORDER granting 26 Motion for Leave entered by Chief Judge Wiley Y. Daniel on 11/23/10. (wydcd, rrk) (Entered: 11/23/2010)
28 RESPONSE to 19 MOTION for Preliminary Injunction filed by Defendant Terry Maketa. (Attachments: # 1 Exhibit El Paso County Jail Form DB 219, # 2 Exhibit Affidavit of Postal Technician Salary and Benefits, # 3 Exhibit Affidavit of Jail Programs Manager and Mail Supervisor, # 4 Exhibit Unpublished case law−−Murphy v. Mo. Dep't of Corrections)(Greenlee, Charles) (Entered: 11/24/2010)
29 Minute Entry for Scheduling Conference held before Magistrate Judge Kristen L. Mix on 11/29/2010; Upon agreement of counsel, the Court enters the Preliminary Scheduling Order set out in these minutes, for purposes of the Preliminary Injunction hearing set before Judge Wiley Y. Daniel, Chief District Judge, on December 22, 2010. The Scheduling Conference will be reset upon notice, after ruling on Plaintiff's Motion for Preliminary Injunction. (Court Reporter: FTR − Monique Wiles) (klmcd ) (Entered: 11/29/2010)
30 REPLY to Response to 19 MOTION for Preliminary Injunction filed by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Silverstein, Mark) (Entered: 12/10/2010)
31 Witness List by Defendant Terry Maketa. (Greenlee, Charles) (Entered: 12/15/2010)
32 MINUTE ORDER re: 19 MOTION for Preliminary Injunction filed by Amber Hugenot, Damian Gradeless. Due to the need for additional time in the hearing as estimated by counsel, Motion Hearing set for 12/22/2010 09:00 AM in Courtroom A1002 before Chief Judge Wiley Y. Daniel. Entered by Chief Judge Wiley Y. Daniel on 12/15/10. (wydcd, rrk) (Entered: 12/15/2010)
33 DECLARATION of Steve Martin by Intervenor Callie Gonzales, Plaintiffs Damian Gradeless, Amber Hugenot. (Attachments: # 1 Exhibit)(Silverstein, Mark) (Entered: 12/15/2010)
34 Witness List by Intervenor Callie Gonzales, Plaintiffs Damian Gradeless, Amber Hugenot. (Silverstein, Mark) (Entered: 12/15/2010)
35 Exhibit List by Intervenor Callie Gonzales, Plaintiffs Damian Gradeless, Amber Hugenot. (Silverstein, Mark) (Entered: 12/15/2010)
36 Joint MOTION for Preliminary Injunction , STIPULATED, AND FOR FURTHER RELIEF by Defendant Terry Maketa. (Attachments: # 1 Proposed Order (PDF Only) STIPULATED ORDER GRANTING PRELIMINARY INJUNCTION)(Greenlee, Charles) (Entered: 12/17/2010)

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 6 of 7

12/20/2010
12/20/2010
12/20/2010 12/20/2010 12/21/2010 12/28/2010 02/01/2011 02/04/2011
02/07/2011 02/28/2011 03/01/2011 03/01/2011 03/02/2011
03/02/2011
03/18/2011 03/18/2011

37 ORDER Granting 36 Plaintiffs and Defendants Joint Motion to Enter Stipulated Preliminary Injunction and for Further Relief ; Denying as moot 19 Plaintiff's Motion for Preliminary Injunction. The hearing on the Motion for Preliminary Injunction set for Wednesday, December 22, 2010, at 9:00 a.m. is VACATED. by Chief Judge Wiley Y. Daniel on 12/20/2010.(ervsl, ) (Entered: 12/20/2010)
38 ORDER granting 20 Unopposed Motion for Leave to Intervene and to Join in Motion for Preliminary Injunction. The Court accepts Plaintiff−Intervenor's Intervention Complaint for filing as of the date of this Order. The case caption shall hereafter be amended to add Plaintiff−Intervenor Callie Gonzales as a party, by Chief Judge Wiley Y. Daniel on 12/20/10.(mnf, ) (Entered: 12/20/2010)
39 COMPLAINT in Intervention on Behalf of Callie Gonzales, filed by Callie Gonzales.(mnf, ) (Entered: 12/20/2010)
40 INTERVENOR COMPLAINT filed by Callie Gonzales.(erv, ) (Entered: 12/21/2010)
41 Docket Annotation re: 40 Intervenor Complaint, Duplicate entry, Docketing error. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (erv, ) (Entered: 12/21/2010)
42 DEFENDANT'S ANSWER to 39 Intervenor Complaint on Behalf of Callie Gonzales by Terry Maketa.(Greenlee, Charles) (Entered: 12/28/2010)
43 Joint MOTION to Stay Hold Case in Abeyance Pending Finalization of Settlement by Defendant Terry Maketa. (Greenlee, Charles) (Entered: 02/01/2011)
44 MEMORANDUM regarding 43 Joint MOTION to Stay Hold Case in Abeyance Pending Finalization of Settlement filed by Terry Maketa. Motions referred to Magistrate Judge Kristen L. Mix by Chief Judge Wiley Y. Daniel on 2/4/2011. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED(erv2, ) (Entered: 02/04/2011)
45 MINUTE ORDER granting 43 Joint Motion to Hold Case in Abeyance Pending Finalization of Settlement. Dismissal Paper due by 2/28/2011. by Magistrate Judge Kristen L. Mix on 2/7/2011.(erv, ) (Entered: 02/07/2011)
46 Joint STATUS REPORT AND MOTION FOR EXTENSION OF TIME by Defendant Terry Maketa. (Greenlee, Charles) (Entered: 02/28/2011)
47 Docket Annotation re: 46 Status Report. Attorney notified to refile as a motion for an extension. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (jjh, ) (Entered: 03/01/2011)
48 Joint MOTION for Extension of Time to File Joint Stipulations Regarding Settlement by Defendant Terry Maketa. (Greenlee, Charles) (Entered: 03/01/2011)
49 MEMORANDUM regarding 48 Joint MOTION for Extension of Time to File Joint Stipulations Regarding Settlement filed by Terry Maketa. Motion referred to Magistrate Judge Kristen L. Mix by Chief Judge Wiley Y. Daniel on 3/2/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 03/02/2011)
50 Minute ORDER granting 48 Motion for Extension of Time to File Joint Stipulations Regarding Settlement. ORDERED that all deadlines and proceedings in this case are stayed until 03/18/11. ORDERED that the deadline for the parties to file joint stipulations regarding settlement is extended to 03/18/11 by Magistrate Judge Kristen L. Mix on 03/02/11.(jjh, ) (Entered: 03/03/2011)
51 Joint MOTION for Extension of Time to File Joint Stipulations by Defendant Terry Maketa. (Greenlee, Charles) (Entered: 03/18/2011)
52 MEMORANDUM regarding 51 Joint MOTION for Extension of Time to File Joint Stipulations filed by Terry Maketa. Motion referred to Magistrate Judge Kristen L. Mix by Chief Judge Wiley Y. Daniel on 3/18/11. TEXT ONLY ENTRY − NO DOCUMENT ATTACHED (wydcd, rrk) (Entered: 03/18/2011)

Case: 1:10-cv-2242 As of: 05/07/2013 01:37 PM MDT 7 of 7

03/18/2011 03/28/2011 03/28/2011 03/31/2011
05/25/2011 06/07/2011
06/08/2011

53 Minute ORDER granting 51 Motion for Extension of Time to File Joint Stipulations Regarding Settlement. ORDERED that all deadlines and proceedings in this case are stayed until 03/18/11. ORDERED that the deadline for the parties to file joint stipulations regarding settlement is extended to 03/28/11 by Magistrate Judge Kristen L. Mix on 03/18/11.(jjh, ) (Entered: 03/18/2011)
54 Unopposed MOTION for Attorney Fees by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Intervenor Plaintiff Callie Gonzales. (Attachments: # 1 Exhibit, # 2 Exhibit)(Silverstein, Mark) (Entered: 03/28/2011)
55 Joint MOTION for Order to Approve Resolution of Class Action by Plaintiffs Elizabeth Fritz, Damian Gradeless, Gary Harrison, Amber Hugenot, Michael Jason Martinez, Robert Rumpf, Thomas Trujillo, Intervenor Plaintiff Callie Gonzales. (Attachments: # 1 Exhibit, # 2 Joint StipulationsSupporting Resolution of Class Action)(Wallace, Rebecca) (Entered: 03/28/2011)
56 ORDER. Ordered that the Joint Motion to Approve Resolution of Class Action 55 is GRANTED IN PART AND DEFERRED IN PART as set forth in this Order. Order granting 2 Motion to Certify Class. ORDERED that the proposed notice pursuant to Rule 23(e) to class members of the proposed resolution of the case attached to the Joint Motion to is APPROVED and is attached hereto. ORDERED that a hearing is set for Wednesday, 05/25/11, at 3:00 p.m., to determine whether the resolution is fair, adequate and reasonable pursuant to Fed. R. Civ. P. 23(e). ORDERED that Plaintiffs Unopposed Motion for Attorneys Fees 54 is DEFERRED until the hearing by Chief Judge Wiley Y. Daniel on 03/31/11.(jjhsl, ) (Entered: 03/31/2011)
57 Minute Entry for Motion Hearing proceedings held on 5/25/2011 before Chief Judge Wiley Y. Daniel. Granting 54 Motion for Attorney Fees. Granting 55 Motion for Order. Mr. Silverstein shall submit a proposed form of order not later than Friday, May 27, 2011. (Court Reporter: Therese Lindblom) (wydcd, rrk) (Entered: 06/01/2011)
58 ORDER. ORDERED that the parties' Joint Motion to Approve Resolution of Class Action 55 is GRANTED. In accordance therewith, Defendant Terry Maketa, hissuccessors, officers, agents, servants, employees, and attorneys, and all others in active concern or participation with them, are PERMANENTLY ENJOINED from enforcing the postcard−only policy, or any other policy that limits prisoners' outgoing mail to postcards. ORDERED that Plaintiffs' Unopposed Motion for Attorneys' Fee 54 is GRANTED. In accordance therewith, Defendant is to forthwith pay Plaintiffs an attorneys' fee and costs award of $60,000. ORDERED that as all claims have been resolved, this case is DISMISSED by Chief Judge Wiley Y. Daniel on 06/07/11. (jjh, ) (Entered: 06/07/2011)
59 Final JUDGMENT. ORDERED that Defendant shall forthwith pay Plaintiffs an attorneys fee and costs award of $60,000.00. ORDERED that post−judgment interest shall accrue on the total amount of $60,000.00 at the legal rate of.18% per annum from the date of entry of judgment by Clerk on 06/08/11. (jjh, ) (Entered: 06/08/2011)

 
 TO:

All Concerned Personnel and Inmate Users

FROM:

Commander Robert W. King #88010

DATE:

12/16/10

SUBJECT: Revision of Personal Outgoing Inmate Mail Procedures

Re: Interim Directive #10.11

Effective on the dates identified below, the El Paso County Sheriff’s Office Detention Bureau will revise its outgoing personal inmate mail program to incorporate sealable envelopes and blank writing paper for both indigent and non-indigent inmates. We will continue to offer 4x6 inch post cards through the inmate commissary program for those inmates who desire to spend less on correspondence materials.

Beginning on December 20, 2010, the inmate commissary program will offer, for sale, posted
sealable envelopes and blank writing paper. These correspondence materials if ordered on the 20th will be delivered to Alpha, Bravo, Charlie and Delta Mods on December 22nd and Echo, Fox and Golf Mods on December 24th.

On December 22, 2010, indigent supplies delivered to indigent inmates throughout the detention facility will include sealable envelopes and blank writing paper. These envelopes will contain the Criminal Justice Center’s return address. Only these envelopes with the CJC return address will be eligible for postage via the outgoing indigent inmate mail program. Each indigent envelope mailed out must be properly addressed and free from any additional writing or drawing on the envelope.

All Power of Attorney forms and other sensitive mail must be sent out using the personal outgoing mail program. On December 24, 2010, we will discontinue the use of the DB219 Form which was used to request special mail privileges to mail out sensitive mail.

Indigent inmates who are on the law library list will receive their legal supplies from the Program’s Manager. Indigent inmates who are not on the law library list who wish to send out legal mail must use their allotted indigent inmate supplies.

Non-indigent inmates who wish to send out legal mail must purchase their legal supplies from the inmate commissary program.