1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Mark Brnovich

Attorney General

Michael E. Gottfried

Assistant Attorney General

State Bar No. 010623

2005 North Central Avenue

Phoenix, Arizona 85004-1592

Telephone: (602) 542-7693

Fax: (602) 542-7670

E-mail: Michael.Gottfried@azag.gov 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Prison Legal News, a project of the 

Human Rights Defense Center,

Plaintiff,

v.

David Shinn, et al.,

Defendants.

No. CV15-02245-PHX-ROS

SURREPLY IN OPPOSITION TO

REQUEST FOR CLARIFICATION 

AND RECONSIDERATION OF 

JANUARY 2020 ORDER (doc. 328)

Defendants, through undersigned counsel, pursuant to the Court’s Order (doc. 

3332), surreply in opposition to Plaintiff’s Motion for Clarification and Reconsideration 

of January 24, 2020 Order (doc. 328).

A. Introduction

The language in this Stipulated Motion is unambiguous and agreed to word-byword by Plaintiff’s counsel. Namely, if a stay pending appeal was granted, delivery of 

Plaintiff’s publications would be delayed until the stay was lifted. In fact, as explicitly 

set-out in the emails between counsel and the undersigned’s attached declaration, the 

operative language in this Stipulated Motion—“Should this Court or the Ninth Circuit 

Court of Appeals enter an order granting a stay pending appeal, Defendants shall deliver 

the subject issues of Prison Legal News within 30 days of the lifting of the stay”—was 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 1 of 12
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

proposed by Plaintiff’s counsel. There is no reasonable way to read this Stipulated 

Motion other than delivery of these publications is stayed until the appeal is completed.

B. Facts

In its November 6, 2019, Injunction Order, the Court ordered that the Arizona 

Department of Corrections (“ADC”) deliver previously withheld or redacted issues of 

Prison Legal News to inmate-subscribers within thirty days of the Order, revise its 

publication policies as to sexually-explicit material within ninety days of the Order, and 

train officers on this new policy within sixty days of such revision. (Doc. 305.)

`Under the Court’s Order the publications had to be delivered by December 6, 

2019. (Id.) Originally, given this short time-frame, ADC was going to deliver the 

publications, but Plaintiff had not delivered a requested, and obviously necessary, 

subscriber list and a limited use license it said was necessary for ADC to deliver the 

publications. (Declaration of Michael E. Gottfried dated March 6, 2020, at paragraph 3.) 

(Hereinafter “Gottfried at ___.”) As such, the parties entered into a stipulated motion to 

extend the delivery deadline through January 6, 2019. (Id.) The Stipulated Motion was 

filed on November 29, 2019 (doc. 309) and granted on December 2, 2019 (doc. 310).

Defendants appealed this Injunction Order (doc. 311) and on December 5, 2019, 

sought a stay pending appeal (doc. 315). Also on December 5, 2019, defense counsel 

asked Plaintiff’s counsel if they would stipulate to a stay of this injunction order, and its 

related requirements, pending resolution of the appeal. (Gottfried at 4.) Plaintiff’s

counsel responded that they “cannot agree to a stay pending appeal.” (Id.)

On December 17, 2019, the Court noted an error in Defendants’ stay motion 

where it was mistakenly stated that the Court had extended the date to deliver Prison 

Legal News issues until the conclusion of appellate proceedings. (Doc. 316.) The Court 

gave Defendants until noon on December 19, 2019, to file a motion to extend delivery of 

the publications. (Id.) Defendants filed a Notice of Errata on December 18, 2019, to 

correct this mistake. (Doc. 317.)

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 2 of 12
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

On December 17, 2019, defense counsel wrote Plaintiff’s counsel, stating that 

ADC was going to need additional time past January 6, 2020 to deliver these 

publications because of the upcoming holidays and the effect on people’s schedules, 

because ADC was still waiting for Plaintiff to deliver PDF versions of these 

publications, and because ADC had still not received the inmate subscriber list. (Doc. 

331-1 at 6; Gottfried at 6.)

Given the now pending stay motion, it made no sense to defense to simply choose 

another date to deliver these publications when the stay motion, if granted, would 

eliminate the need to deliver the publications pending appeal. (Gottfried at 7.) Similarly, 

the need to deliver the publications pending appeal would be eliminated if this Court 

denied the stay motion and the Ninth Circuit granted a stay motion. (Id.) As such, 

defense counsel asked Plaintiff’s counsel for “an extension until both the district court 

and the Ninth Circuit if necessary decide the stay issue.” (Id. at 8)

Defense counsel believed, and still believes, that this request was perfectly clear: 

if any court granted a stay pending appeal, delivery would be stayed pending the 

outcome of the appeal. If no court granted a stay, the publications would be delivered. 

(Id. at 9.)

Given Plaintiff’s counsel refusal to stipulate to a stay pending appeal, and the 

pending stay motion, it seemed logical to me to make this publication delivery 

contingent on the outcome of the pending stay motion in this Court and, if necessary 

because denied by this Court, contingent on the outcome of a stay motion in the Ninth 

Circuit. (Id. at 10.) Delivering the publications before the stay motions were resolved 

would moot that portion of the stay motions. (Id.)

Defense counsel’s proposal was apparently not clear to Plaintiff’s attorneys. 

Plaintiff’s counsel Masimba Mutamba responded that they consented to extending the 

time for redelivery of the magazines, that they were working on the license, PDF copies 

and subscriber list, and asked how long after these items were delivered would ADC 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 3 of 12
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

need to deliver the publications. (Id. at 12.) Significantly, Mr. Mutamba added “We 

oppose a stay on the redelivery of PLNs to [sic] until after the appeal.” (Id. at 13.)

Defense counsel took that last sentence as a misunderstanding of my proposal, 

because he was not asking that the redelivery be stayed until the end of the appeal, only 

that it be extended contingent on the outcome of the pending and possible future stay 

motions. (Id. at 14.)

Attempting to clarify this proposal defense counsel wrote back on December 18, 

2019, that: “I might have been unclear, I was asking to stipulate to stay the delivery until 

the Ninth Circuit rules on a stay (if necessary) not the conclusion of the appeal. Please 

let me know as soon as possible, I am planning on filing the motion today.” (Id. at 15)

Mr. Mutamba replied that day: “Thanks for clearing that up, Michael. Plaintiff 

consents to the stay of the redelivery pending resolution of the stay proceedings.” (Id. at 

16.) Defense counsel agreed to put together a stipulation. (Id.)

Defense counsel did not and would not propose a stipulation that would delay 

redelivery of these publications until after the resolution of the stay proceeding even if

ADC won the stay proceedings. (Id. at 17.) 

There was no logical reason to make such an agreement. If the timing of the 

holidays and the failure of Plaintiff to deliver needed material and information was the 

problem with ADC redelivering these publications, the simple resolution was to choose a 

definite time in the future to redeliver these publications. (Id. at 18.) There is no logical 

or legitimate reason to make the redelivery contingent on resolution of the stay 

proceeding regardless of outcome. (Id.)

If this was not clear from my emails, it had to have been clear from the proposed 

stipulation I sent Plaintiff’s attorneys. (Id. at 19.) On December 18, 2019, I sent a draft 

stipulated motion to Plaintiff’s attorneys which stated:

[The parties] stipulate to extend the deadline to deliver the October 

2014, April 2017, May 2017, and June 2017 issues of Prison Legal News

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 4 of 12
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to current ADC-prisoner subscribers until thirty days after this Court 

enters an order denying a stay pending appeal and the Ninth Circuit 

Court of Appeals enters an order denying a stay pending appeal. 

Further, if Defendants do not file a motion for a stay pending appeal 

with the Ninth Circuit Court of Appeals within fourteen-days of an order 

from this Court denying a stay pending appeal, Defendants shall have 

forty-five days from this Court’s order denying a stay pending appeal to 

deliver these issues of Prison Legal News.

(Id.)

That same day, December 18, 2019, Plaintiff’s counsel, Mr. Mutamba, 

sent back a redlined version of my draft stipulated motion which specifically 

addressed the issue of what happened if the stay pending appeal was granted. 

(Id. at 21.) He wrote: 

Attached are redline versions of both the extension motion and the 

proposed order, mainly to and some wording changes and address what 

should happen if a stay is granted by either court.

Please review and, if you are fine with these changes, you can file these 

versions. Thanks.

(Id.)

The redlined version, indicating changes requested by Plaintiff, added,

among other things, a sentence that stated: “Should this Court or the Ninth Circuit Court 

of Appeals enter an order granting a stay pending appeal, Defendants shall deliver the 

subject issues of Prison Legal News within 30 days of the lifting of the stay.” (Id. at 22.) 

Defense counsel had no issues with Plaintiff’s counsel’s redlined changes and accepted 

them into the final stipulated motion document. (Id. at 23.) 

There was a minor problem with Plaintiff’s redlined version of the proposed order 

that was quickly resolved between defense counsel and Plaintiff’s counsel Lisa Ells. (Id.)

Specifically, defense counsel wrote back to Mr. Mutamba, with a copy to Ms. Ells, on 

December 18, 2019:

Hello – it is generally good. The only comment I have is the order, not 

the motion, talks about an appeal being filed in the 9th circuit within 14 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 5 of 12
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

days, rather than a stay motion. IU think a stay motion is the appropriate 

way and the order should be changed. What do you think?

(Id.) Ms. Ells wrote: “You’re right. How’s this?” and sent a redlined proposed order. 

(Id. at 24.) Defense counsel responded: “Perfect, I’ll file tonight or in morning. Thanks 

Lisa.” (Id. at 25.)

On December 18, 2019, defense counsel filed the Stipulated Motion to Extend 

Deadline to Deliver Publications, along with the proposed order. (Doc. 318.) The filed 

Stipulated Motion incorporated all of the redlined suggestions made by Plaintiff and the 

filed document is exactly the same as Plaintiff’s redlined document (except obviously 

without the redlining markings). (Gottfried at 26.) Plaintiff’s counsel explicitly stated in 

writing that if I was “fine with these changes, you can file these versions.” (Id.) 

Defense counsel was fine with Plaintiff’s changes to the Stipulated Motion, accepted and 

incorporated all of Plaintiff’s changes to the Stipulated Motion and filed it consistent 

with Plaintiff’s counsel’s email. (Id.)

Once filed, Plaintiff did not object to the Stipulated Motion, or in any way 

contend that the Stipulated Motion was inconsistent with our agreement or that I was not 

authorized to file it. (Id. at 26.) Similarly Plaintiff made no such claims in it 

Reconsideration Motion or Reply. (Docs. 328, 331.)

Under the Court’s Injunction Order, the deadline for revising and amending 

ADC’s publications regulations was February 4, 2020. (Doc. 305.) Since this deadline 

was rapidly approaching, and the Court had not yet ruled on the Stay Motion, on January 

23, 2020, defense counsel wrote Plaintiff’s counsel seeking to enter into a stipulation 

similar to the publication-delivery Stipulated Motion for the regulation-revision 

deadline. (Gottfried at 29.) It made no sense to defense counsel to revise ADC 

regulations while the Stay Motion was pending. (Id.)

Specifically, defense counsel wrote on January 23, 2020: 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 6 of 12
7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Counsel – would you be willing to enter into a similar stipulation/order as the one 

we did for delivery of the publications for the remaining obligations under the 

order (i.e. revising the regulation, the training requirements and the rest) pending 

the outcome of the stay motions only? Thank you

(Id. at 30.)

Ms. Ells responded that day: “Hi Mike, Sorry for the delay – we are not 

amenable to that kind of stipulation.” (Id. at 31.) Defense counsel responded the next 

day: “Lisa – just to be clear, it’s the same stip as with the publication delivery – why 

are we revising regulation while stay motion is pending?” (Id.) The Court ruled on the 

Stay Motion on January 24, 2020. (Doc. 325.)

C. Legal Analysis

1. The Court’s First Question.

The Court asked two questions. “First, after Defendants’ counsel represented to 

PLN that ‘he was asking to stipulate to stay the delivery until after the Ninth Circuit 

rules on a stay (if necessary) not the conclusion of the appeal,’ Doc 331-1 at 5, why did 

Defendants include the language ‘Should this Court ... enter an order granting a stay 

pending appeal, Defendants shall deliver the subject issues of Prison Legal News within 

30 days of the lifting of the stay’ in the stipulation and proposed order?” (Doc. 332 at 2.)

Undersigned counsel knew that Plaintiff was not interested in stipulating to a stay 

pending appeal—that is an agreement that that the Court’s Injunction Order would be 

stayed until the appeal was completed—because he had already asked Plaintiff for that 

stipulation and Plaintiff declined. (Gottfried at 4.) Therefore, defense counsel suggested 

what he believed was a compromise—instead of agreeing upfront to stay delivery for the 

entire appeal, the deadline for delivery would be extended while the stay motions were

being resolved. If stayed, then delivery would await the outcome of the appeal. 

Similarly if not stayed, delivery would occur while the appeal continued. Delivery of the 

publications was the focus of the Stipulated Motion because that deadline was fast 

approaching and it made no sense to deliver the publications when there was a request 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 7 of 12
8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pending to stay such delivery. (Id. at 3, 7.) 

This “compromise” was the basis of saying that the delivery would be stayed until 

“until after the Ninth Circuit rules on a stay (if necessary) not the conclusion of the 

appeal.” Doc. 331-1. Redelivery of the publications would be contingent on resolution 

of the stay motion, not automatically for the length of the appeal.

The answer to the second part of this question— “why did Defendants include the 

language ‘Should this Court ... enter an order granting a stay pending appeal, 

Defendants shall deliver the subject issues of Prison Legal News within 30 days of the 

lifting of the stay’ in the stipulation and proposed order?’”—is this sentence and result 

was exactly what was contemplated by the agreement and, perhaps equally important 

given Plaintiff’s arguments, this language was proposed by the Plaintiff. (Gottfried at 

21, 22.) In a redlined version of Defendants’ draft Stipulated Motion, Plaintiff’s counsel 

Masimba Mutamba added this sentence: “Should this Court or the Ninth Circuit Court 

of Appeals enter an order granting a stay pending appeal, Defendants shall deliver the 

subject issues of Prison Legal News within 30 days of the lifting of the stay.” (Id. at 22.) 

Undersigned counsel agreed to this addition and it was included in the filed Stipulated 

Motion. (Doc. 318.)

Plaintiff’s addition of this sentence to the Stipulated Motion is definitive evidence 

of its understanding that if a stay was granted by either this Court or the Ninth Circuit 

delivery of these publications would not happen until the stay was lifted. This is 

definitive evidence that Plaintiff’s understanding of the Stipulated Motion was consistent 

with the undersigned counsel’s understanding of the Stipulated Motion. There is no 

other reasonable interpretation of this sentence.

A stipulation is reviewed as a contract. Brawders v. County of Ventura, 503 F.3d 

856, 863 (9th Cir. 2007). An unambiguous contract is “interpreted according to its 

terms.” Isaak v. Mass. Indem. Life Ins. Co., 127 Ariz. 581, 584 (1981). A contract is not 

ambiguous simply because the parties disagree as to its meaning. Chandler Med. Bldg. 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 8 of 12
9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Partners v. Chandler Dental Grp., 175 Ariz. 273, 277 (App. 1993). Generally, language 

is deemed ambiguous “when it is open to multiple reasonable interpretations.” Glazer v. 

State, 244 Ariz. 612, 614 ¶ 12 (2018) (discussing statutory interpretation). If the parties' 

intent is clear from the contract language and the surrounding circumstances, then the 

contract is not ambiguous. Harris v. Harris, 195 Ariz. 559, 562, ¶ 15 (App. 1999).

There is nothing ambiguous about this Stipulated Motion and certainly nothing 

ambiguous about the sentence Plaintiff proposed: “Should this Court or the Ninth 

Circuit Court of Appeals enter an order granting a stay pending appeal, Defendants shall 

deliver the subject issues of Prison Legal News within 30 days of the lifting of the stay.” 

This Court entered a stay and delivery of these publications does not need to happen 30 

days of the lifting of the stay. Similarly, given the context of this Stipulated Motion 

involving a stay pending appeal, the only reasonable interpretation of “the lifting of the

stay” is the conclusion of the appeal in Plaintiff’s favor.

Equally unambiguous and evident is that none of the language in this Stipulated 

Motion supports Plaintiff’s claim that “the stipulation would last through the stay 

proceedings, not for the entire duration of the appeal.” (Doc. 331 at 2.) This claim is 

directly contrary to the above-quoted sentence Plaintiff proposed. Plaintiff agreed to 

every word in the Stipulated Motion (Gottfried at 26, 27) and it does not point to any 

word or phrase in the Stipulated Motion that supports this claim. This motion (328) 

should be denied.

2. The Court’s Second Question.

The Court’s second question is: “what consent did Defendants receive from PLN 

between the morning of December 18, 2019, when PLN’s counsel agreed to a stay 

regarding delivery only until the principal stay motion was resolved and 8:19 p.m. on 

December 18, 2019, when the stipulation was filed, that rendered accurate Defendants’ 

counsel’s representation that ‘this document and the proposed order has been approved 

and agreed to by Plaintiff’s counsel?’” This answer is: written consent from Plaintiff’s 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 9 of 12
10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

counsel to file the identical document and proposed order that was filed. (Gottfried at 

19, 21-28.)

A draft Stipulated Motion was sent to Plaintiff’s counsel at 2:17 p.m. and 2;23

p.m. on December 18, 2019. (Id. at 19.) A draft proposed order was also sent that day. 

(Id.) On the same day, December 18, 2020, at 4:22 p.m. Plaintiff’s counsel sent a 

redlined version of the draft Stipulated Motion and proposed order (Id. at 21.) He wrote: 

Attached are redline versions of both the extension motion and the 

proposed order, mainly to and some wording changes and address what 

should happen if a stay is granted by either court.

Please review and, if you are fine with these changes, you can file these 

versions. Thanks.

(Id.)

Undersigned defense counsel had no issues with Plaintiff’s counsel’s redlined 

changes and accepted them into the final stipulated motion document. There was a 

minor problem with Plaintiff’s redlined version of the proposed order that was quickly 

resolved. (Id. at 23-24.) Once resolved, undersigned counsel wrote to Plaintiff’s 

counsel at 8:13 p.m. that her revisions to the proposed order were perfect and that he 

would file the Stipulated Motion and proposed Order “tonight or in the morning.” (Id. at 

25.) The Stipulated Motion and proposed Order was filed at 8:19 p.m. on December 18, 

2019. (Id. at 26; doc. 318.)

Once filed, Plaintiff did not object to the Stipulated Motion, or in any way 

contend that the Stipulated Motion was inconsistent with the parties’ agreement or that 

defense counsel was not authorized to file it. Similarly Plaintiff made no such claims in 

its Reconsideration Motion or Reply. (Docs. 328, 331.)

The filed Stipulated Motion incorporated all of the redlined suggestions made by 

Plaintiff and the filed document is exactly the same as Plaintiff’s redlined document 

(except obviously without the redlining markings). (Gottfried at 26.) Plaintiff’s counsel 

explicitly stated in writing that if defense counsel was “fine with these changes, you can 

file these versions.” (Id.) Undersigned defense counsel was fine with Plaintiff’s changes 

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 10 of 12
11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to the Stipulated Motion, accepted and incorporated all of Plaintiff’s changes to the

Stipulated Motion and filed it consistent with Plaintiff’s counsel’s email. (Id.)1

 

Undersigned counsel had Plaintiff’s counsel specific written consent to file the identical 

document and proposed order that was filed at Doc. 318.

Accordingly, for the above reasons, it is respectfully requested that Plaintiff’s

Motion for Clarification and Reconsideration of January 24, 2020 Order (doc. 328) be 

denied.

RESPECTFULY SUBMITTED this 6th day of March, 2020.

MARK BRNOVICH

Attorney General

/s/ Michael E. Gottfried

Michael E. Gottfried

Assistant Attorneys General

Attorneys for Defendants 

 1 In the thirty-plus years undersigned counsel has been practicing law he has never 

represented to a court that a “document and the proposed order has been approved and 

agreed to by Plaintiff’s counsel” when that was not true. It was true here. (Gottfried at 

28.)

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 11 of 12
12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CERTIFICATE OF SERVICE

I hereby certify that on March 6, 2020, 2020, I electronically transmitted the 

attached document to the Clerk of Court using the CM/ECF System.

This document and the Notice of Electronic Filing were served on the same date 

on the following, who are registered participants of the CM/ECF System:

Lisa Ells

Caroline E. Jackson

Rosen, Bien, Galvan & Grunfeld LLP

50 Fremont Street, 19th Floor

San Francisco, CA 94105-2235

Attorneys for Plaintiff Prison Legal News

Daniel Marshall

Human Rights Defense Center

P.O. Box 1151

Lake Worth, FL 33460-1151

Attorneys for Plaintiff Prison Legal News

David J. Bodney

Michael DiGiacomo

Ballard, Spahr LLP

1 East Washington Street, Suite 2300

Phoenix, AZ 85004-2555

Attorneys for Plaintiff Prison Legal News

s/ L. Fuentes

Secretary to Michael E. Gottfried

#8582204

Case 2:15-cv-02245-ROS Document 333 Filed 03/06/20 Page 12 of 12