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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 3 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 4 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 7 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 8 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 9 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 11 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 12 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 13 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 14 of 18 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 Case 2:13-cv-14481-JEM Document 23 Entered on FLSD Docket 04/09/2014 Page 16 of 18 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