Case 4:12-cv-00239-RH-CAS Document 65 Filed 06/07/12 Page 1 of 3
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

PRISON LEGAL NEWS, etc.,
Plaintiff,
v.

CASE NO. 4:12cv239-RH/CAS

THE GEO GROUP, INC.,
etc. et al.,
Defendants.
____________________________/

ORDER DENYING THE MOTIONS TO DISMISS

The plaintiff Prison Legal News publishes a periodical. Its target market is
prisoners. The State of Florida Department of Corrections has rules that restrict
the materials that may be mailed to prisoners. In its first amended complaint, the
plaintiff asserts that, without notice to the plaintiff, the rules have been applied to
block its publications, that the rules as so applied violate the First and Fourteenth
Amendments, and that the failure to give the plaintiff notice violates the Due
Process Clause. The first amended complaint names as defendants the DOC
Secretary in his official capacity and two private corporations that operate
correctional facilities under contract with DOC.

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The defendants have moved to dismiss the first amended complaint for
failure to state a claim on which relief can be granted. The defendants’ primary
assertion, in effect, is that the DOC rules are facially constitutional. But facially
valid rules can be unconstitutionally applied. See, e.g., Thornburgh v. Abbott, 490
U.S. 401, 404, 419 (1989). Whether that has occurred here cannot properly be
determined on the defendants’ motions to dismiss.
This does not mean, though, that a determination of the as-applied claims
must await prolonged discovery. See, e.g., Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) (“federal courts
and litigants must rely on summary judgment and control of discovery to weed out
unmeritorious claims sooner rather than later”). The attorneys should cooperate
with the goal of efficiently preparing and presenting the case on the merits so that
the side that is entitled to prevail—whether plaintiff or defendants—can do so
without undue burden.
That leaves for consideration the motion to dismiss the Due Process claims.
The defendants are incorrect when they assert that notice to a publisher is never
required. See Montcalm Publ’g. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996);
Martin v. Kelley, 803 F.2d 236, 243-44 (6th Cir. 1986); Jacklovich v. Simmons,
392 F.3d 420, 433-34 (10th Cir. 2004); see also Abdul Wali v. Coughlin, 754 F.2d
1015, 1027-28 (2d Cir. 1985); Trudeau v. Wyrick, 713 F.2d 1360, 1366-67 (8th

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Cir. 1983); Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001).
The first amended complaint adequately states a claim on which relief can be
granted.
For these reasons,
IT IS ORDERED:
The motions to dismiss for failure to state a claim on which relief can be
granted, ECF No. 29 and 37, are DENIED.
SO ORDERED on June 7, 2012.
s/Robert L. Hinkle
United States District Judge

Case No. 4:12cv239-RH/CAS