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Prison Legal News v. Sheriff Ken Mascara, St. Lucie County Jail, Order Granting in Part Preliminary Injunction 2014

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Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 1 of 18

UNITED STATES DISTRICT CO URT
SO UTHERN DISTRICT O F FLO RIDA
CASE NO.I3-I4V I-CIV-M ARTINEZ/LYNCH
PRISO N LEGAL NEW S,

a projectofthe Hum an Rights
Defense Center,a not-for-profit,
W ashington charitable corporation,
FILED ùy

Plaintiff,

D.C.

V.

AFq - 8 2g1i

KENNETH J.MASCARA,in his
officialcapacity as Sheriffof
St.Lucie County,Florida,

SI-EVEN M LARIMORE

CLERKub.D!?Tc'
F.
s.D.orFLS.-n,ilEmcc

Defendant.
I

REPORT AND RECOM M ENDATIO N ON PLAINTIFF'S

MOTION FOR PRELIMINARY INJUNCTION (D.E.#4)
THIS CAUSE having com e onto be heard uponthe aforem entioned m otionand this

Courthaving reviewedthe m otion,the response and reply aswellasaIIattachm ents m ade
by the parties to theirpleadings,this Courtrecom m ends to the DistrictCoud as follows:
1.

The Plaintiffisa not-for-profitW ashingtoncharitable corporationw ithitsm ain

office in Lake W odh,Florida,as setforth in its m otion. The Plaintiffdistributes a m onthly

journalofcorrectionsnewsand analysisaswellascedain booksaboutthecriminaljustice
system and Iegalissues in general.The Plaintiffchallengesthe Defendant's''postcard only
policy''concerning incom ing Iegalm ailto the St.Lucie County Jail.
2.

The policy in question has been attached by the padies to their various

pleadings.The ini
tialpolicyattachedtothe Plaintiff'sMotion ForPreliminaryInjunctionis
dated June 15,2010. This policy,which neither pady disputes is the correct policy,

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 2 of 18

requires alIincom ing m ailto be by way ofpostcards m eeting the size criteria setforth in
the m em orandum/policy. The effective date ofthe d'postcard only policy''was August2,

2010 as is reflected in thatm em orandum/policy. Further,the policy states that,with the

exception oflegalm ail,aIIincom ing m ai!m ustbe in the form ofa postcard which can be
visually scanned by staff mem bers. The policy states that inm ates who are denied
correspondence are given written notificationw hich willinclude the reasons forthe denial.

Fudher,the policy states that incom ing m ailwill be received and reviewed by staff
mem bersto verifythatthe inm ate isstillincarcerated.AIIstam ps orunusualm arkswillbe
cutand torn from the postcard. Any postcards with stickers orIabels w illbe returned to
senderto elim inate the possibility that any item s m ay have been treated w ith a drug.
Postcards altered from theiroriginalform w illnot be delivered and willbe returned to
sender.
3.

The policy also directed thatm agazines,paperbacks,orhardcoverbooks

cannotbe received through the m ail. Paperback books and m agazines can be received

byrequestthrough thejail'sIeisure Iibrary.This provision is a provision which this Court
views to be the m ostpedinentto the Plaintiff's posi
tion as a media/news dissem ination
non-profi
t. By the very definition thatthe Plaintiff places in its m otion,i
t distributes a

monthly journalas this Courtpreviously stated,togetherwith cedain books aboutthe
criminaljusticesystem and Iegalissues.The Plaintiffdoes notcomplain norsetfodhany
specific instances of personalcorrespondence which has to be sent by Ietterform to
inmates. Nevedheless,the changed policy,which thisCourtwillreview Iaterherein,does
exem ptthe Plainti
ffand sim ilarm edia publishers from the postcard only policy.

2

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4.

As the pleadings indicate, subsequent to this action being filed, the

Defendantam ended its policy asofJanuary2014 This am ended policy is attached to the
.

Defendant's response to the Motion ForPreliminary Injunction. This am ended policy
reflects that generalcorrespondence is considered to be between an inm ate, fam ily
m em bers,orotherpersons.This policyencourages correspondence. Fudher,the policy

reiterates that,with the exception of privileged m ailand perm issible publications, aII
incom ing m ailm ustrem ain in the form ofa postcard to be visually scanned by staff
.

5.

The policy then recites thatany incom ing correspondence which is denied

to an inm ate willresult in a written notification to thatinm ate which would include the

reasons fordenial. Inm ates m ay appealthe denialvia an inm ate request form to the
facility com m ander.The am ended policy rei
teratesthe requirem entsconcerning rem oval
ofpostage stam ps orotherIabels from any incom ing postcards.

6.

The am ended policy then exem pts privileged mailw hich isdefined to be m ail

from attorneys,couds,public officials,governm entalagencies,and the news m edia.The
am ended policy states thatthis ''privileged m ail''does not need to be in the form ofa

postcard. Itshallbe opened only to determ ine thatitis privileged m ailand contains no
contraband. Itm ustbe opened in the presence ofthe inm ate according to the am ended
policy.
The am ended policy also exempts publications such as the books,
m agazines,and periodicalswhichthe Plaintiffseeks to send to inm atesatthe Defendant's

facility. Those publications are setforth in subparagraph (E)ofthe amended policy, It
reflects thatselectperiodicals,books,and newspapers are provided atno charge to the
inmates through the facility Ieisure library. Ifan inm ate wants a publication notoffered in
3

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thatIibrary,the inm ate m ay m ake arrangem ents to purchase such a publication directly
from the publisherorcom m ercialdistributor. Further,the am ended policy reflects that

publications will not be disapproved solely because its content is religiously,
philosophically,politically,orsocially unpopular. Published m aterials from outside m ust
be sentdirectly from the publisherorvendorapproved by the Defendant's Directorof

Detention and be atthe inmate's expense which m ust be prearranged for paym ent.
Published m aterials which are found to be detrimentalto security,order,disciplinary,or
rehabilitative interestofan inmate inany facility m ay be refused.The am ended policy then

setsforth specific publicationswhichwould be rejected in paragraph (E)(6).

8.

Theamendedpolicythensetsforthproceduresshouldtherebeanyrejection

of delivered published m aterials which do not meetthe requirem ents ofthe amended

policy.W hensuch arejectionoccurs,boththe inmate andthe publisherwillbe notified of
the rejection in wri
ting and the reasons forsuch rejection. ltwillbe the inmate's sole
responsibilityto contactthe publisherorvendorforreim bursem entofanyfunds advanced

forsuch rejected materials.The amended policyalso provides a procedure forawritten
appealofeach rejectionwhichmaybesubmittedto the DirectorofDetentionwithinfi
fteen
business days ofthe rejection. Such an appealmustbe in writing on the approved
grievance form provided atthe Defendant's facility with the DirectorofDetention m aking
the finaldecision on aIIappeals.

9.

Itis also pointed outin the pleadings as wellas within the am ended policy

thatmailfrom dsnews media''is considered privileged mailundersubparagraph (D)ofthe
am ended policy. As the pleadings indicate,the Defendantconsiders correspondence in
letterform from the Plaintifforsim ilarnews m edia/publishers to be privileged m ailw ithin
4

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 5 of 18

this exception. Underthe privileged m ailprocedures,thatmailneed notbe in the form of
a postcard. Any incom ing privileged m ailshallbe opened only to determ ine that itis

privileged and contains no contraband,asthis Courtpreviously recited. Fudher,the m ail
m ustbe opened in the presence ofthe inm ate.
1O.

Also attached to the pleadings are an Unsworn Declaration by the Plaintiff's

expertand an Affidavitfrom the Defendant's expertconcerning these issues. M ichael
Berg provided an Unsworn Declaration w hich the Plaintiffattaches to its pleadings. This
Courtwillsum m arize the pertinentpodions ofthatUnsworn Declaration now.
a.

M r. Berg began as a Corrections Officer in 1972 in Jacksonville,

Florida. He was ChiefofJails from 1977 to 1987. He was Deputy DirectorofJails and
Prisons from 1987 to 1995 forthe Jacksonville Sheriff.
b.

He served twelve years in the Florida Depadm entofCorrections as

ChiefofStaffoverseeing staffeducation and training.
c.

Hethenbecame ExecutiveAssistanttotheAssistantDeputy Secretary

ofInstitutions. Fortwenty-five years he served on the CorrectionalStandards Counciland
Crim inalJustice Standards and Training Com m ission.
d.

M r.Berg asserts thatthe postcard onl
y policy unnecessarily Iim its

inm ate oppodunities to engage in Iawfuland routinely accepted correspondence and
reading m aterials.
e.

He asseds phone calls and visits do not adequately serve as a

substitute.O ne inm ate reading anotherinmate's postcard could create a security concern.
f.

He asseds thatthe Defendant's reasonsforthe postcard only policy

to preventintroductionofcontraband andto conserve resources is notsufficientto suppod
5

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 6 of 18

such a policy. He asseds thatthe Florida Departmentof Corrections and the Federal
Bureau ofPrisons allow inm atesto receive letters, books,and m agazines.He assedsthat

the costsavings to staffis m inim aland even so, does notoutweigh the inmates having
com m unication with friends and fam ily to be so restricted.

g.

He asseds thatifmailis rejected,there is no hardship to provide

written notice to the inm ate and senderto allow both to challenge the decision

.

h.

He asserts that the Florida Depadm ent of Corrections has over

100,000 persons in custody and allows Iettersand periodicals He assertsthatthe Federal
.

BureauofPrisonshasinexcessof208,000 persons in custodyand allow ssuch letters and
publications.
Finally,he asserts thatthe Florida Sheriff's Association encourages
correspondence and does notprohibitpublications orvolum es ofm ail.

The Defendantattaches an Affidavitfrom F.Patrick Tighe to its pleading.
This Courtw illlikew ise sum m arize the pertinentportions ofthatAffidavitnow .
a.

He has been em ployed by the St.Lucie County Sheriff's Office for

approxim ately twelve years. He hasthirty-three years ofexperience in corrections which

include overtwenty yearsw ith the Brevard County Sheriff's Office where he was Director
ofthe Depadm entofCorrections from 1999 to 2002. He is currently the Directorofthe

DepartmentofCorrections with the St.Lucie County Sheriff's Office.
b.

M r.Tighe'sAffidavitassertsthatthe m ailpolicyisnecessaryto ensure

thatthe mailgets to the properinm ate.AIlm ailis opened,inspected,and m onitored to
ensure thatno contraband is contained in any envelopes. Further,itis checked forany

6

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coded m essages,gang affiliations,securitythreats,orotherm aterialwhich m aydisruptor
potentially disruptthe facility.
C.

Legalmailis opened and inspected in the presence ofthe inmate to

determ ine i
fitis privileged and contains no contraband.Six staffm em bers are assigned
to process m ailwhich M r.Tighe estim ates to be between 10,000 to 12,000 Ietters per
m onth.

d.

The postcard only policy has greatly reduced the num berofIetters

being processed. The policy applies only to non-privileged m ail.
e.

The policy was im plem ented as a means to address daily concerns

ofpotentially hazardous and dangerous m aterialsw hich could be contained in envelopes
such as drugs,tobacco,m oney and othercontraband whichwere com m on to be found in
envelopes priorto the policy being initiated.
f.

M r.Tighe assedsthatthe policyhas resul
ted in a significantdecrease

in contraband introduction into the facility.Ithaselim inated having to take time to inspect
envelopes and m ade the inspection process easier in respect to checking for such
contraband referenced by his Affidavit.

g.

M r.Tighe asseds that the facility allows two hours per week for

visi
tation with an inm ate and theirfriends and fam ily. Further,an inm ate has daily use of
the telephone. These are alternatives to com m unication which are in addition to written
com m unication in accordance with the postcard only policy.
h.

His Affidavit then closes with the assertion that this is the Ieast

restrictive m eans to address the Iegitim ate security concerns atthe facility.

7

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12.

As referenced earlier,subsequentto the filing ofthis action,the Defendant

changed the policy concerning postcards,m agazines,periodicals,and m edia m ailwhich
is considered privileged.The Defendantassertsthatthism akesthe issue m ootin respect

tothe Plaintiff's request.The Plaintiffdeniesthatthe m atterism ootand assertsin support

ofthatargumentthatthe policy could be changed again ifa preliminary injunction is not
granted while this action is pending.
ANALYSIS
13.

This Courtdoes notsee the need foran evidentiary hearing.There isno per

se requirement for an evidentiary hearing on a motion for preliminary injunction.
McDonald'sCorn.v.Robedson,147 F.3d 1301(11thCir.1998).The policyandamended
policy are w hatthey are, W hile the parties have differentinferences and draw different
inferences and argum ents in respectto the policies,there is no dispute as to whatthe

originalpolicy and the am ended policy are at this tim e. Additionally, the Unsworn
Declaration and the Affidavitare accepted by this Courtas evidence of each pady in
suppod oftheirrelative positions.

14. The issue ofwhetherornota preliminary injunction should be issued isa
Iegalissue based upon the facts before the Court,which this Coud finds to notbe hotly
disputed. The m ere factthateach party draws inferences orsuggests argum ents from
theirparticular position,does notrequire an evidentiary hearing to be conducted. The
issue isw hetherornot,in a prelim inaryfashion,the policy and am ended policy violate the

establishedcaseIaw.Assuch,thisCoudviewstheissue ofa prelim inaryinjunctiontoturn
on a question ofIaw w hich does notrequire this Courtto conductan evidentiary hearing.

8

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United Statesv.Lopez,466 Fed.Appx.829 (11thCir.2012)and Cumulus Media,Inc.v.
ClearChannelCommunications,Inc.,304 F.3d 1167 (11thCir.2002).
15.

The Coud has reviewed the cases cited by the padies in theirpleadings as

well as som e which have been attached to the pleadings. This Coud finds m ost
persuasive and factually on point,Judge M arra's decision in Althouse v.Palm Beach

CountySheriff'sOffice,2013W L 536072 (S.D.Fla.2013).Inthatcase,Judge Marrawas

reviewing by way ofsummary judgmentmotions,the postcard only policy ofthe Palm
Beach County Sherifrs O ffice. In thatcase,there was a virtually identicalpolicy in place
w here aIIincom ing m ail,exceptIegalm ailand otherspecifically approved item s,m ustbe
in the form ofa postcard. Itshould be noted thatthe defendant's policy in Althouse did

permitpublishers to deliverbooks,papers,magazines and otherperiodicals to the jail
sim ilarto the am ended policy in place now in the case before this Court.
16.

Just as in this case,the Palm Beach County Sheriff's Office perm itted

inm atesto have visitswith fam ily and friends and have access to telephones forunlim ited
calling andto receive an unlim ited am ountofwritten correspondence as Iongas itcom plied
with the postcard only policy.

17. Justasinthiscase,thePalm BeachCountySherifrsOfficejusti
fieditspolicy
as relating to Iegitimate penologicalinterestbased upon the standards setforth by the

Supreme CourtinTurnerv.Safley,482 U.S.78(1987).Affidavi
tssubmitted insuppod of
the Palm Beach County Sheriff's Office position asseded that policy was to intercept
contraband such as drugs,tobacco,m oney,and othercontraband thatmay be secreted
within pages ofcorrespondence within envelopes.The affidavitin thatcase also asserted

9

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 10 of 18

thatthe incidents involving attem ptsto introduce contraband were greatlydim inished after
the introduction ofthe postcard only policy.

18.

Judge Marra reviewed the factors established in Turner, sunra,foranalysis

ofthe underlying facts in his case. Judge M arra also noted the constitutionalrights of
prisoners are m ore Iim ited in scope than the constitutionalrights held by individuals in
society at Iarge. In regards to a FirstAm endmentcontext, some rights are simpl
y

inconsistentwiththestatusofaprisonerorwiththe Iegitimate penologicalobjectivesofthe
corrections system . In applying the Turner factors, Judge M arra found that sealed

envelopesprovided greateropportunity forthe introduction ofdrugs and othercontraband

intothejailfacilitiesthando postcards since postcardshave no foldsorcreaseswherein
such m atters could be secreted. He also noted thatthe policy in place atthe Palm Beach

Countysheriff'sOffice perm itted publisherstodeliverbooks, papers,magazines,and other

periodicals,justasisinthiscase before the Courtunderthe amended policyadopted by
the Defendant.
19.

The second TurnerfactorthatJudge M arra addressed was the alternative

means ofcom m unication available to inm ates. Justas in the case before this Coud , the

Palm Beach County Sheriff'sOffice perm itsinm ate visitswithfam ily andfriends, telephone
calls,and unlim ited correspondence within the restrictions ofthe postcard only policy

.

20. The third Turnerfactoraddressed by Judge M arra was whetherornotthe
plaintiff's asserted rightwould be detrim entalto prison security The plaintiffin Althouse
.

argued thatsince staffwas stillopening and inspecting otherprivileged mail,thatwas
exem pt from the postcard policy,there would be no im pact on the staff ifthey were

required to accom m odate the plainti
ff's requestto perm itcorrespondence in envelopes.
10

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Judge Marraspecificallyrejectedthatprem isebyfindingthatincreasingtheoppodunityfor
contraband to be introduced into the sheriff's office facilities is notin the bestinterests of
the security staff,otherinm ates,orthe allocation ofprison resources This Courtagrees
.

with thatanalysis and finds thatthe sam e holds true in respectto the facts in this case.
21.

Finally,Judge Marra found thatthe postcard only policy ofthe Palm Beach

County Sheri#'s Office was notan exaggerated response to the legitim ate concernsto the
penologicalgoalofintercepting possible contraband w hich w as being attem pted to be

introduced into thejailfacility.Likewise,inthiscase,thisCourtfindsthatthe Defendant's
postcard only policy asitrelatesto generaland personalcorrespondence is sojustified.
In sum m ary,Judge M arra found,w ithoutthe necessity ofan evidentiary hearing,thatthe

defendant's motion forsum maryjudgmentbe granted because the postcard only policy
was contentneutral,Iogically advanced the goals ofinstitutionalsecurity and safety,and

is notanexaggerated response to those objectives.
22.

In applyingthe Turnerfactorsto this case before the Court,this Courtagrees

with Judge M arra's analysis in Althouse. ln respectto the facts before this Court,the
postcard only policy is rationall
y connected to prison security based upon the affidavit
subm itted in suppod of the Defendant's position. Postcards do not easily secret

contraband even ifpostage stam ps orotherstam ps m ustbe rem oved to m ake cedainthat
drugsare nothidden below those stam ps.The Plaintiffis excepted from the postcard only

policy underthe am ended policy enacted by the Defendant. The Plaintiffis perm itted to
deliverbooks,papers,m agazines,periodicals,and even correspondence inenvelopes as

privileged m ailunderthis am ended policy.This is consistentw i
ththe factsin the Althouse
Case .

11

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23.

Thesecond Turnerfactorconcerning an alternative m eansofcom m unication

forinm ates atthe Defendant's facility,weighs in favorofthe Defendant. Inm ates atthe
Defendant's corrections facility are perm itted visits w ith fam ily and friends. They are
perm itted telephone calis and unlim ited correspondence as Iong as itcom plies with the
postcard only policy.

24.

The third Turnerfactoraddresses the Plaintiff's asserted rightand whether

ornotthatwould be detrimentalto prison security. Based upon the entire record before
the Coud including the Unsworn Declaration ofthe Plaintiff'sexpedand the SwornAffidavit

ofthe Defendant's expert,this Coud finds thatthe factthatstaffare stillrequired to open
m agazines,periodicals,books,orotherprivileged m ail,such as Iegalm ailorm ailfrom

news media,does notin and ofitselfjustify increasing the work ofthatstaffto open
envelopes ofgeneraland personalcorrespondence. As Judge M arra found,increasing
the opportunityforcontrabandto be introduced into the Defendant'scorrectionalfacilityby
allow ing generaland personalcorrespondence to be contained within envelopes,is notin
the bestinterests ofthe security staffofthe Defendant,otherinm ates atthe Defendant's
facili
ty,orthe allocation ofprison resources.
25.

The finalTurnerfactoraddresses whetheror notthis is an exaggerated

response to the Defendant's concerns of introduction of contraband. This Court has
considered the Unsworn Declaration ofthe Plaintiff's exped,butfinds thatthe postcard

onlypolicy asdiscussed in the pleadings andthe Defendant's expert'sAffidavitreasonably
relate to legitim ate attem pts to avoid the secreting of contraband in pages w ithin
envelopes. Com m on sense would dictate thatitis m uch easierto attem ptto sm uggle
contraband into the Defendant's facility within an envelope as opposed to a postcard.
12

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Therefore,this Coudfinds thatthe Defendant's postcard onlypolicy is notan exaggerated
response to the previous history offinding contraband hidden w ithin envelopes sentto
inm ates atits facility.
26.

The standard which this Courtm ustfollow in determ ining whetherto grant

apreliminaryinjunctioniswellestablished,A courtmaygrantinjunctivereliefifthemovant

shows (1)substantiallikelihood ofsuccess on the merits'
,(2)irreparable injury willbe
suffered unless the injunction issues'
,(3)a threatened injury to the movantoutweighs
whateverdamagetheproposedinjunctionmaycausetheopposingparty;and(4)ifissued,

the injunctionwould notbe adverse tothe public interest. See McDonald'sCorn.,sunra.
27.

ThisCoud findsthatthe Plaintiffdoes have standing to continue to challenge

the postcard only policy even as am ended,in respectto its com m unicationswith inm ates.

Standing isdeterm ined ashaving a personalinterestthatm ustexistatthe com m encem ent
ofthe Iitigation. However,this Courtalso notes thatto qualify,an actualcontroversy m ust
existataIIstagesofreview and notm erely atthe tim e a com plaintisfiled.Davis v.Federal

Election Commission,554 U.S.724 (2008).ThisCourtfinds thatthe Plaintiffdoes have

standingatthetime ofthecommencementofthisactionandforanyprospective injurythat
m ay resultin respectto correspondence itspecifically has between itselfand inmates.
This would include m agazines,books,periodicals,and othercorrespondence which the
amended policy now exem pts as privileged m ail.
28.

This Courtdoes notsee the Plaintiffas having standing to challenge general

correspondence orpersonalcorrespondence to any inmate otherthan correspondence

betweenthe Plaintiffand thatinm ate.The Plaintiffcannotestablish standing in respectto
thatgeneralcorrespondence orpersonalcorrespondence which may be between third
13

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padies and an inm ate. There mustbe a causalconnection between the i
njury and the
conductcom plained of. As such,the Plaintiffcannot assed rights on behalf of other

inm ates which do notdirectly im pactthe Plaintiffs distribution ofits m aterials. See Bass

v.Singletary,143 F.3d 1442 (11thCir.1998)andAdamsv.James,784 F.2d 1077 (11thcir.

1986). This Courtcannotsee how the Plaintiffcan stand in the shoes ofan inmate in
respectto correspondence which is notcorrespondence from the Plaintiffto an inm ate.

See Focus onthe Familyv.PinellasSuncoastTransitAuthority,344 F.3d 1263 (11thCir.
2003).Asa result,thisCourtisonlygoingto addressthe issuesconcerningthe incoming

mailpolicy and the amendmentthereofas itrelates to the Plaintiff'sjusticiable case in
controversywhich this Coud sees to be any com m unications bym ailbetween the Plainti
ff
and an inm ate. The Plaintiffdoes notassertthatitis an organization representing any
padicularinm ate nordoes itassertthatany inm ate is a mem berofthe Plaintiff.
29.

In respectto m ootness,the am endm entofthe policy did notin and ofitself

m ake moot the issues relevant to the Plaintiff's claim s in respect to its m ail
com m unications with any inm ate. This Courtdisagrees with the Defendant's assertion in
thatregard. A case m ay becom e m ootbased upon a defendant's voluntary conductif

subsequentevents m ake itabsolutely clearthatthe alleged w rongfulbehaviorcould not
reasonabl
y be expected to recur. Friends ofthe Eadh.Inc.v.Laidlaw Environmental

Services,528 U.S.167 (2000).Fudher,the Courtin Friendsofthe Earth.Inc.statedthat
itis a heavy burden ofpersuading a courtthatthe challenged conductcannotreasonably
be expected to stad up again. This burden is on the party asserting m ootness.
30.

This Court finds that the am ended policy could be changed during the

pendencyofthisIitigationbeforeafinaldeterm inationonpermanentinjunctionand/orother
14

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 15 of 18

reliefisdecided bythe DistrictCourt.This Courtrem inds the partiesthatthis issue before

the Coud is only on a preliminary injunction and is notthe finaloutcome ofthe Iitigation.
Since the amended policy could be changed tom orrow by the Defendant, this Courtfinds
thatthe am ended policy is capable ofrepetition evading review before the finaloutcom e

ofthis Iitigation.The ''capable ofrepetition,yetevading review'
'exception to the mootness

doctrine appliesonlywhere (1)the challenged action isin itsdurationtooshod to be fully
li
tigated priortocessationorexpiration,and (2)there isa reasonable expectationthatthe
same complaining party willbe subjectto the same action again. See Arcia v.Florida
SecretarvofState,2014W L 1284907 (11thcir.2014).ThisCourtfindsthatthe amended
policy could be changed. Ithas only been am ended since January of2014. Its effecton
the outcom e ofthis Iitigation is stillopen to determ ination by the Coud afterthe padies
have com pleted discovery and presented aIIevidence and argum entsto the finderoffact.

This Coud finds thatthe m ootness doctrine does notapply since the am ended policy has

been ofsuch a shortduration and issubjectto being changed atanytime.
31.

Since the am ended policy is found by this Coud to notbe m oot,this Court

willrecommend thata preliminary injunction be entered by the DistrictCourtto maintain
the am ended policy as itrelates to the Plaintiff's com m unications with inm ates,during the
pendency ofthis case. The am ended policy exem pts the Plaintiff's com m unications and
correspondence with any inm ate atthe Defendant's facility whetherthatcorrespondence
be by way ofbooks,periodicals,m agazines,orby way ofprivileged mail. The am ended
policy allows such correspondence to be sentto inm ates.

15

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32. In reviewing the preliminaryinjunction requirements,thisCourtfindsthata
preliminaryinjunction shouldbe granted in respecttothe amended policyadopted bythe
Defendantas itaffectsthe Plaintiff's correspondence with inm ates via books, periodicals,

m agazines,and privileged m ailvia envelopes. This Coud finds that the Plainti
ff has
established a substantialIikelihood ofsuccess on the m erits in respectto thatam ended

policy.The Plainti
ffhasestablished irreparable injuryifno injunction isissued to keepthe
amendedpolicyineffectduringthependencyofthisIitigation.Thethreatenedinjurytothe
Plaintiffoutweighs whateverdamage the proposed injunction may cause the opposing
pady in this instance since the amended policy has already been im plem ented and the

Plaintiffshould be able to im mediately availitselfofcom m unications with inm ates under
thatamended policy. The damages to the Plaintiffshould this policy be reversed during

the pendency ofthis Iitigation,outweighs the damage which such an injunction would
cause to the Defendant. Finally,any preliminary injunction issued in respectto the
Plaintiff's com m unications only w i
th inm ates would notbe adverse to the public interest.

33. Indeterminingthata preliminaryinjunctionshould notbe granted in respect
to the postcard only policy in generalorin respectto anyothercom m unicationsaside from

those between this Plaintiffand inm ates,this Courtfinds thatthere is nota substantial
Iikelihood thatthe Plaintiffwillprevailin respectto generalcorrespondence orpersonal

correspondence. This is based upon this Coud's finding thatthe Plaintiffcannotassert
rights on behal
fofinm ates.The Plaintiffcan only assertrights on behalfofitselfin respect
to its com m unications with inm ates in the Defendantfacility. The Plaintiffis notable to

establish a substantialIikelihood ofsuccess on the m eri
ts in respectto asseding rights of

inmates. There would be no irreparable injuryto the Plaintiffshould an injunction notbe
16

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 17 of 18

issued in respectto the postcard only policy in generalsince the Plaintiffcannotassed

rightsonbehalfofinmates.Likewise,anythreatened injurytothe Plaintiff,whichhasnow
been addressed bythe am ended policy and this Court's recom m endation ofa prelim inary

injunction inthatregard,do notoutweighthe interestsofthe Defendantin maintaining the
postcard only policy in respect to inm ate general correspondence and personal
correspondence as stated by this Court previously in its finding. Finally, issuing a

preliminaryinjunction in respectto the postcard onlypolicywhichwould allow the Plaintiff
to assertpersonalrights on behalfofan inm ate would be adverse to the public interestin
thisCourt'sview .The Plaintiff,asthe case law cited herein indicates,can assertrightsthat
ithas itself in respectto the issues addressed by the policy. Thatis,in respectto its

correspondencewithinmatesdirectly.ThePlaintiffcannotassed rightsnorinjuryoutside
ofits ow n comm unications with inm ates.

ACCORDINGLY,this Courtrecom m ends to the DistrictCoud thatthe Plaintiff's

Motion ForPreliminary Injunction (D,E.#4)be GRANTED IN PART only insofaras the
am ended policy instituted by the Defendant during the pendency ofthis Iitigation shall
rem ain in fullforce and effectduring this Iitigation and thataIIcorrespondence including
books,periodicals,m agazines,and correspondence by envelope which is considered
privileged m ailbetween the Plaintiffand inm ates shallbe considered an exception to the

postcard only policy. This Coud recom m ends thatthe Plaintiff's Motion ForPrelim inary

Injunction be DENIED in aIIotherrespects.
The padies shall have foudeen (14) days from the date of thi
s Repod and

Recom mendation within which to file objections,if any,with the Honorable Jose E.
17

Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 18 of 18

M artinez,the United States DistrictJudge assigned to this case. Failure to file tim ely

objectionsshallbarthe padiesfrom a de novo determination by the DistrictCourtofthe
issuescovered in this Repod and Recom m endation and barthe padies from attacking on
appealthe factualfindings contained herein. Loconte v.Dugger,847 F.2d 745,749-50

(11thcir.1988),ced.denied,488 U.S.958 (1988).
DO NE AND SUBM ITTED this

ay ofApril,2014,atFortPierce,Nodhern

Division ofthe Southern DistrictofFlorida.
e
..

(.,

,...

N
U

CC :

Hon.Jose E.M adinez
Dante P.Trevisani,Esq.
Lance T.W eber,Esq.
Bruce W .Jolly,Esq.

18

...'''

..
,'

.LYNCH,J .
D ST
A
TRATE JUDG E



 

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