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Prison Legal News v. Werholtz, Judgement on Remand, Kansas DOC Censorship 2007

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Case 5:02-cv-04054-MLB

Document 91

Filed 10/01/2007

Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PRISON LEGAL NEWS, INC.,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ROGER WERHOLTZ,
Defendant.

CIVIL ACTION
No.

02-4054-MLB

MEMORANDUM DECISION
I.

INTRODUCTION
This case has a somewhat lengthy procedural history.

In 2002,

plaintiff Prison Legal News, Inc., (PLN) a Washington state non-profit
corporation that publishes the monthly periodical Prison Legal News,
filed an action against defendant, in his capacity as Kansas Secretary
of Corrections, alleging that its First Amendment rights are violated
by Kansas Department of Corrections’ (KDOC) current regulations. The
court consolidated plaintiff’s case with two ongoing cases that had
been originally filed by Kris Zimmerman and Joseph Jacklovich, inmates
under the supervision of the KDOC. All plaintiffs sought declaratory
and injunctive relief and actual damages.

Plaintiffs asserted that

the KDOC regulations and policies violate their First Amendment rights
since they prohibit inmates from receiving gift subscriptions of
publications and limit the amount of money that inmates can spend on
publications.

The regulations also do not require any notification

to a publisher when KDOC does not deliver a publication.
On April 29, 2003, Judge G. Thomas VanBebber granted defendants’
motion

for

summary

judgment

and

entered

judgment

in

favor

of

Case 5:02-cv-04054-MLB

defendants.

Document 91

(Doc. 43).

Filed 10/01/2007

Plaintiffs appealed.

Page 2 of 19

On December 21, 2004,

the Tenth Circuit reversed Judge VanBebber’s decision. Jacklovich v.
Simmons, 392 F.3d 420 (10th Cir. 2004). After remand, defendant filed
a motion for partial summary judgment based on qualified immunity in
his individual capacity.
partial

summary

judgment

This court granted defendant’s motion for
as

to

all

claims

against

him

in

his

individual capacity.1 (Doc. 75). This court also dismissed the cases
filed by Zimmerman and Jaclkovich since their claims were rendered
moot after they were paroled.
Therefore, the only parties remaining are PLN and defendant Roger
Werholtz, in his official capacity as Secretary of Corrections.

The

issues before the court are whether KDOC’s regulations that prohibit
gift subscriptions and limit the amount an inmate may spend on
publications are unconstitutional.

Also, this court must fashion an

appropriate procedure that provides notification to publishers when
an inmate does not receive a publication.

Jacklovich, 392 F.3d at

434.
On February 13 and 14, 2007, this case was tried to the court.
This decision represents the findings of fact and conclusions of law
resulting therefrom.
II.

Fed. R. Civ. P. 52(a).

FINDINGS OF FACT2
Kansas Administrative Regulation § 44-12-601(g)(1) provides that

“[a]ll books, newspapers, and periodicals shall be purchased through
1

This case had also included various defendants who were
dismissed by this court’s order.
2

The facts set forth in this section consist of a general
overview of the facts of this case.
Additional facts will be
discussed, where appropriate, throughout the decision.
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special purchase orders.”3

Filed 10/01/2007

Page 3 of 19

This regulation prohibits the receipt of

gift publications by requiring that inmates purchase publications only
through their facility bank accounts.

An inmate may not have any

other bank account outside the facility without permission and all
funds must be deposited into the inmate’s facility bank account.
K.A.R. § 44-12-210.
In addition to prohibiting an inmate from receiving a publication
not

purchased

through

his

facility

bank

account,

KDOC

Internal

3

The entire regulation states as follows:
(g) Publications.
(1) Inmates may receive books, newspapers, and periodicals as
permitted by the internal management policies and procedures of the
department of corrections. All books, newspapers, and periodicals
shall be purchased through special purchase orders. Only books,
newspapers, and periodicals received directly from a publisher or a
vendor shall be accepted. However, an inmate shall be permitted to
receive printed material, including newspaper and magazine clippings,
if the material is included as part of a first-class letter that does
not exceed one ounce in total weight.
(2) The procedures for censorship of mail listed in subsection
(d) of this regulation shall be used for censorship of publications.
(3) No publication that meets either of the following conditions
shall be allowed into the facility:
(A) Contains sexually explicit material, as described in K.A.R.
44-12-313, or is otherwise illegal, in whole or in part; or
(B) meets, in whole or in part, the test for censorship of mail
in subsection (d) of this regulation.
(4) Inmates shall have the option of having censored publications
in their entirety either mailed out of the facility at their own
expense or discarded.
(5) Before transferring between institutions or facilities, the
inmate shall arrange for a change of address for newspapers and
periodicals. Newspapers and periodicals shall not be forwarded for
more than 30 days after the date of transfer.
K.A.R.

§ 44-12-601(g).
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Management Policy and Procedure (IMPP) 11-101 limits the amount an
inmate may spend on publications by use of a privilege and incentive
system.

IMPP 11-101 creates four groups of levels for inmates.

Inmates on the intake level are newly admitted to the KDOC and do not
rise to Level I until they are transferred to a facility.

During

intake level, an inmate is at the reception and diagnostic unit and
cannot spend any funds on publications.

An inmate on Level I may

spend $40 a month on canteen expenditures but may not spend any funds
on publications (with the exception of a primary religious text).4
4

IMPP 11-101 (4/21/06) provides as follows:

VI. Limitation on Use of Incoming and Outgoing Funds
A. For inmates assigned to Intake Level, outgoing funds shall be
limited to fees for legal services, and for inmates on Level I, no
outgoing funds may be used to purchase books, or, newspaper or
magazine subscriptions.
B. Except as provided below, there shall be a $40.00 limit on
outgoing funds.
1. Inmates may exceed the $40.00 limit, if necessary, for the
purchase of a primary religious text if the cost of the text is
greater than that amount.
2. The $40.00 limit shall not apply to payments to the following:
a. The court for verified restitution and/or court costs;
b. Verified fees payable to an attorney for legal services;
c. Verified child support payments;
d. Specialized fees, expenses as authorized by the warden or
designee; and,
(1) As possible, approval for such payments shall be payable to
the vendor or service provider only.
e. Purchases of approved handicraft materials/supplies.
C. Upon recommendation of the unit team and approval of the
warden or designee, offenders assigned to private industry (minimum
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After 120 days, an inmate may advance to Level II.

On Level II, an

inmate may spend $40 on publications and $110 on canteen purchases.
After another 120 days, an inmate may advance to Level III, the
highest level.

At Level III, an inmate may spend $40 on publications

and $180 at the canteen.

The $40 limit on publications may be

exceeded once every three months for the purchase of one newspaper
subscription.5
An inmate must follow certain procedures prior to ordering a
publication.

First, an inmate must fill out a Special Purchase Order

form and a publication form and submit those to the business office.
The business office will then ensure that the inmate has the proper
funds and that the publication is allowable under the regulations.
Once the inmate has completed this process the business office will
order the publication. If an inmate has ordered a publication without
completing this process, the publication will be censored.

Upon

receipt of the publication, the mail room requests the inmate to
establish that he followed the procedures by producing the special
wage) or those who receive government benefits may be authorized, on
an individual basis, to send out funds in excess of the $40.00 per pay
period limit.
D. Inmates on Incentive Level II or Incentive Level III are
authorized to maintain one (1) newspaper subscription, and may exceed
the $40.00 limit for outgoing funds in order to do so.
1. The expense for the newspaper subscription shall be included
in the $40.00 limit.
2. Such an exception shall be allowed no more than one (1) time
per every three (3)-month period.
5

This exception was created since most yearly newspaper
subscriptions cost in excess of $40. However, there is no exception
in the rules for a subscription or publication that is not a newspaper
subscription.
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purchase order and the publication form. If the inmate cannot produce
those forms (or, if the form has been lost the inmate can utilize his
bank

statement

showing

the

purchase),

then

the

publication

is

censored.
When

a

publication

is

censored,

the

notification of publication seizure/censorship.

inmate

is

given

a

The form allows the

inmate to appeal the decision within three days of receipt of the
notice.

If the inmate does not successfully appeal the decision, the

items are either mailed out of the facility at the inmate’s expense
or discarded.

IMPP 12-134.

The notice is not sent to the publisher.

The inmate is responsible for informing a publisher that the item was
not delivered.6

6

Kan. Admin. Regs. § 44-12-601(d)(2) provides:

(d) Censorship grounds and procedures.
...
(2) If any communication to or from an inmate is censored, all
of the following requirements shall be met:
(A) Each inmate shall be given written notice of the censorship
and the reason for the censorship, without disclosing the censored
material.
(B) Each inmate shall be given the name and address of the sender
of incoming mail, if known, or the addressee of outgoing mail and the
date the item was received in the mail room. It shall be the
responsibility of the inmate to contact the sender of censored
incoming mail or the addressee of censored outgoing mail, if the
inmate so desires.
(C) The author or the addressee of the censored correspondence
shall be given a reasonable opportunity to protest that decision.
(D) All protests shall be referred to a prison official other
than the person who originally disapproved the correspondence.
Kan. Admin. Regs. § 44-12-601(d)(2)(emphasis supplied).
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Plaintiff requests that this court declare KDOC’s regulations
prohibiting gift subscriptions and limiting the amount of funds that
may be spent on publications unconstitutional.7

Plaintiff also

requests that the court adopt its proposed notification to the
publisher of a censored publication.

(Doc. 72 at exh. 2).

Defendant

responds that its current regulations are reasonably related to
legitimate correctional interests.
III. CONCLUSIONS OF LAW
Resolution of the inmates' claims requires balancing
between the constitutional rights retained by inmates and
those who send them publications against the deference owed
to
prison
authorities
when
it
comes
to
prison
administration. Inmates have a First Amendment right to
receive information while in prison to the extent the right
is not inconsistent with prisoner status or the legitimate
penological objectives of the prison. In weighing the First
Amendment interests against the deference afforded
corrections
officials,
the
reasonableness
of
the
regulations and policies matters. Although the Court has
continually recognized (1) the difficulty of running a
prison, (2) the separation of powers concerns when a
federal court assumes a function (prison administration)
entrusted to the legislative and executive branches, and
(3) the need for federal courts to accord deference to
state prison authorities, those factors do not mean that
every prison regulation is insulated from review no matter
what the facts may be. As the Court stated in Procunier v.
Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224
(1974), overruled on other grounds by Thornburgh v. Abbott,
490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed.2d 459 (1989):
But a policy of judicial restraint cannot encompass
any failure to take cognizance of valid constitutional
claims whether arising in a federal or state
institution. When a prison regulation or practice
offends a fundamental constitutional guarantee,
federal courts will discharge their duty to protect
constitutional rights.
The Court has determined that when a prison regulation
impinges on inmates' constitutional rights, the regulation
7

Plaintiff does not challenge defendant’s regulation that
prohibits inmates on intake level from receiving publications.
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is valid if it is reasonably related to legitimate
penological interests. The four-factor test supplied by
the Court requires a look at (1) whether a valid and
rational connection exists between the regulation and the
asserted legitimate governmental interest, (2) whether
alternative means of exercising the constitutional right
remain available to inmates, (3) any effect accommodating
the right would have on guards and inmates, and (4) the
absence of ready alternatives.
Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004).
A.

Restricting Publications

The present KDOC policies prohibit gift subscriptions, limit
spending on publications for Level II and III inmates to only $40 a
month and entirely prohibit an inmate on Level I from purchasing
publications.

The first factor the court must consider is whether a

valid and rational connection exists between the regulations and the
asserted legitimate governmental interest. Jones v. Salt Lake County,
---F.3d---, 2007 WL 2812594 *3 (10th Cir. Sept. 28, 2007)(citing
Turner v. Safley, 482 U.S. 78, 89-90, 107 S. Ct. 2254, 96 L. Ed.2d 64
(1987)).
During trial, defendant set forth various interests that he
asserts are legitimate penological objectives. The court will address
these in turn.
1.

Legitimate Governmental Interest
A.

Security Concerns8

First, Charles Simmons, Deputy Secretary of KDOC, testified that
the prohibition on gift subscriptions allows KDOC to track an inmate’s
receipt of money in his facility bank account.

By allowing an inmate

to receive a gift subscription, the facility cannot investigate the
8

Plaintiff’s hearsay objection to defendant’s exhibit N is
sustained.
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source of the funds and the individual who purchased the subscription.
Simmons stated that KDOC’s concerns are that the subscription is being
purchased as a result of extortion or strong-arming, debt collection,
or trafficking of contraband by another inmate. (Trial Tr. at 52-53).
Donald

Halpin,

Jerry

Rice

and

Joseph

Jacklovich,

all

formerly

incarcerated in KDOC facilities, testified that strong-arming, dealing
or trading in a content-neutral publication does not occur in KDOC
facilities.9

Similarly,

plaintiff’s

expert,

Patrick

McManus,

testified that publications are not something of value and that
strong-arming using a publications would be very unlikely. Defendant
presented no testimony that publications are used for extortion,
strong-arming, debt collection or trafficking.10
Accordingly, there is no rational and valid connection between
the prohibition of gift subscriptions and security concerns.

See

Crofton v. Roe, 170 F.3d 957, 960 (9th Cir. 1999)(strong-arming
rationale rejected when the warden failed to produce any evidence that
strong-arming was used to obtain gift subscriptions).
B.
Second,

Level and Incentive System

witness

Simmons

testified

that

the

privilege

and

incentive system was created for inmates to earn privileges based on
good behavior.

Inmates can lose privileges earned by bad behavior or

9

The only publications that had been used at KDOC for bartering
were magazines that are currently prohibited and censored due to
content.
10

It is interesting, however, that inmates testified that items
from the canteen are frequently used for strong-arming and KDOC’s
policies currently allow an Inmate on Level III to spend $180 a month
on canteen items. An inmate on Level III therefore can spend $140
more on canteen items than he can on publications.
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other negative activities which result in a reduction in privilege
level. Defendant asserts that allowing gift subscriptions and lifting
the limitations on publication spending will defeat the purpose of the
privilege and incentive system.

Simmons testified that if an inmate

were able to receive gift subscriptions then the inmate would get
something that he did not earn.
However, defendant failed to establish how receipt of a gift
subscription will drastically affect its privilege and incentive
system.

Inmates will still be motivated to rise to the next level

because there are other incentives that coordinate with a rise in
level.

For example, an inmate on Level I cannot have personal

audio/visual equipment.
inmate

is

on

Level

II.

However, those items are available once an
Moreover,

an

inmate

is

restricted

to

organizations and activities on Levels I and II, but is eligible to
participate in all activities on Level III.

Other examples include

the number of visitors an inmate can receive, the availability of the
inmate’s personal property, the amount of incentive pay an inmate may
receive and the amount that can be expended in the canteen.
101, Attachment A.

IMPP 11-

The court highly doubts that the availability of

gift subscriptions will cause an inmate to lose motivation to earn
other privileges through the system.

Moreover, defendant wholly

failed to establish how receipt of a gift subscription will affect its
privilege and incentive system.
Defendant has also failed to establish that there is a rational
and valid connection between the limitation on outgoing funds spent
on publications and the use of the privilege and incentive system.
An inmate on Intake Level will have no incentive to rise to Level I
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if that inmate is interested in purchasing publications because no
publications are allowed on Level I.

An inmate on Level I will have

incentive to rise to Level II so that he may purchase publications but
that inmate will not have an incentive to rise to Level III because
inmates

on

Levels

II

and

III

can

only

expend

$40

a

month

on

publications.
Defendant could not put forth any rational explanation for
entirely restricting an inmate on Level I from publications and
limiting inmates on Levels II and III to only $40 per month on
publications.

Witnesses for defendant simply kept repeating that it

was the amount that the KDOC determined was reasonable.

In contrast

to its policies on spending on publications, expenditures for the
canteen do rise for each level.
per month.

At intake, an inmate may spend $10

On Level I, an inmate may spend $40 per month.

and III are allowed $110 and $180, respectively.

Levels II

Expenditures on

publications, however, do not rise with the privilege level, with the
exception between Level I and II.

Moreover, KDOC allows an inmate to

spend an unlimited amount on handicraft materials.

Witness Simmons

testified that there is no limitation on handicraft materials because
those

items

frequently

exceed

$40.

However,

there

are

many

subscriptions and legal books that exceed $40 as well. While KDOC may
want to encourage arts and crafts, the court does not comprehend why
KDOC does not want to encourage, and in actuality limits, an inmate
spending time reading and gaining knowledge.
Accordingly, the court finds that there is no rational and valid
connection between KDOC’s policies and the privilege and incentive
system.
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C.

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Avoidance of Legal Obligations

Finally, defendant asserts that inmates will elect to receive
gift subscriptions paid for by friends and family instead of those
individuals sending money to KDOC in order to avoid any unpaid
obligations that the inmate may have and to avoid the automatic 10%
savings of all incoming money in an inmate’s account.

Defendant

argues that a gift subscription will circumvent KDOC’s policies of
requiring any funds in an inmate’s account to first pay outstanding
obligations before purchasing any subscriptions.

While the court

believes that the policies requiring inmates to pay outstanding
obligations and save 10% of their funds prior to purchasing other
items are reasonable, the court finds it difficult to believe that
many inmates will request that a relative order a gift subscription
instead of sending money to that inmate.

Money received from friends

and family members and placed in an inmate’s account is utilized by
the inmate for items other than publications, most importantly, as
testified by prior inmates, to buy canteen items.
During trial, defendant failed to establish that the allowance
of gift subscriptions will result in inmates intentionally having
relatives send gift subscriptions instead of money orders. Moreover,
Other well-run prison systems, including the Federal Bureau of Prisons
and numerous state correctional facilities, allow gift subscriptions.
If the end result of allowing gift subscriptions was an avoidance of
inmate’s obligations than the court would expect that it would be
prohibited by those facilities.
Again, defendant has failed to demonstrate a rational and valid
connection between the prohibition of gift subscriptions and an
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inmate’s avoidance of personal obligations.
2.

Alternative Means

The second factor relevant in determining the reasonableness of
a prison restriction is whether there are alternative means of
exercising the right.

Turner, 482 U.S. at 90.

“Where other avenues

remain available for the exercise of the asserted right courts should
be particularly conscious of the measure of judicial deference owed
to corrections officials . . . in gauging the validity of the
regulation.”

Id.

Witness Simmons testified that inmates have access to the
library, which includes numerous publications and internet access.
However, no KDOC facility subscribes to plaintiff’s publication.
Moreover, there was testimony that the library’s publications are
limited and only one copy of each publication is on file in the
library.

Prior inmates testified that they frequently encountered

publications with pages missing and torn. Also, the number of inmates
that can be in the library is limited.

If an inmate in maximum

security desires to go to the library, he must sign up at a certain
time.

Frequently, however, an inmate may be unable to go to the

library because the list was full at the time he had access to the
list.
The court finds that the library is not a sufficient alternative
means to exercise the inmate’s right to receive information.
3.
The

Impact on Guards and Inmates

third

factor

is

the

impact

accommodation

of

the

“constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally. . . . When accommodation
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of an asserted right will have a significant ‘ripple effect’ on fellow
inmates or on prison staff, courts should be particularly deferential
to the informed discretion of corrections officials.”

Turner, 482

U.S. at 90.
The only possible impact of eliminating the gift subscription ban
and allowing inmates to spend an unlimited amount on publications is
an increase in the amount of mail that inmates receive.

While this

may cause a facility to expend more time delivering and sorting mail,
it was not shown to have a significant effect on the facility.
Moreover, lifting the ban on gift subscriptions will eliminate the
need to check whether that subscription was purchased through the
purchase order system.

So, in reality, a facility may have less

obligations and responsibilities when a subscription is received in
the mailroom.
Therefore, the court finds that the impact, if any, will not be
significant.
4.

Absence of Ready Alternatives

“Finally, the absence of ready alternatives is evidence of the
reasonableness of a prison regulation.”

Id.

In this case, there are

obvious, easy alternatives to the regulations that accommodate the
First Amendment right to information while imposing a de minimis
burden on the facilities.
subscriptions.

KDOC can allow inmates to receive gift

Again, numerous facilities, including the Federal

Bureau of Prisons allow gift subscriptions. If the facility has valid
security concerns that are substantiated after the ban on gift
subscriptions is lifted, it may consider requiring a gift subscription
to include the name and address of the person who purchased the
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subscription so that the facility can investigate whether strongarming occurred.

KDOC may also formulate a new regulation which

allows inmates to spend more on publications and properly correlates
with its privilege and incentive system.

Limitation on inmate

spending may be reasonable if the facility can identify the purpose
of the limitation and if that spending was correlated with the
privilege and incentive system.11
Accordingly, the court finds that there are ready alternatives
available to guarantee an inmate’s right to publications.
5.

Conclusion

The court is more disinclined than most to interfere with the
running of prisons, a subject which courts generally are ill-equipped
to understand, much less to undertake.

However, the court concludes

that the KDOC prison regulations are not reasonably related to the
penological interests identified by defendant.

The inmates do not

have alternative means available to access desired publications and
the elimination of the regulations will not have a significant impact
on the facility, inmates and guards.

The court also finds that there

are ready alternatives available to KDOC that would meet its stated
penological interests.
Accordingly, K.A.R. § 44-12-601(g)(1) and IMPP 11-101, Section
VI, are constitutionally infirm and therefore invalid.

11

During trial, witness Werholtz was questioned by the court.
The court specifically stated that if it did not find that the
regulations limiting outside spending were reasonable then did the
witness have another amount that would be reasonable.
Witness
Werholtz testified that he did not have an alternate amount that he
considered reasonable to spend on publications.
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B.

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Notification to Publishers

The Tenth Circuit instructed this court on remand to fashion an
appropriate procedure in which the publisher would receive “adequate
individualized notice” that would give it an opportunity to be heard.
Jacklovich, 392 F.3d at 433-34.
procedures.

Both parties have submitted proposed

Plaintiff has submitted the following:

DATE:_________________
TO: Inmate #XXXX
Institution_________________
RE: _______________________ Issue date:__________________
Title of Publication
The
publication
identified
above,
published
by
____________________ [publisher], has been rejected in
accordance
with
KDOC
regulations,
specifically
_______________________________________________________.
This
publication
has
been
rejected
because
_________________________________________________________
_________________________________________________________
__________________ [provide reference to the specific
portions
or
pages
of
the
publication
which
are
objectionable or other reason for rejection, the KDOC
regulations or policies which are applicable and the
reasons for the decision to reject]. Either you or the
publisher or both may appeal this decision. If there is no
appeal, the publication will be mailed out at your expense
if you so request or destroyed.
If you wish to appeal this decision, you must do so within
20 days of the receipt of this letter by writing to KDOC
Secretary, 900 SW Jackson St., Topeka, KS 66612, or by
handing an appeal in writing to your unit team and
including your reasons for the appeal and any materials you
wish considered. The decision will be made based on the
publication and the materials you provide or by
_________________________[explain alternative procedure if
to be used]. A decision will be rendered within 20 days of
the receipt of your appeal and you will be notified in
writing. The publication in question will be held until the
decision in this matter is made and then it will be
delivered to you, mailed out at your expense if you so
request or destroyed, depending on the outcome of the
appeal.
___________________
________________
Secretary or designee Date
cc [Publisher name and address]
(Doc. 72, exh. 2).

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Defendant submits that a notification would be immediately sent
to the publisher if the publication is censored for content but not
if the publication was censored due to the inmate’s inability to
receive a publication because of the inmate’s current level or
behavior restrictions.

Defendant asserts that a publication will

receive a “content neutral nondelivery” notification on an annual
basis.

This notification will include the department’s regulations

and the reasons why their publication may not be delivered.

The

publishers will have 15 days to challenge the validity of the
regulation or policy.

Inmates will still receive notification at the

time their publication is not delivered.

(Doc. 73).

Plaintiff asserts that defendant’s proposed notification when
a content neutral publication is censored does not provide publishers
with

adequate

notice.

Defendant

responds

that

notification will be too time consuming and costly.

individualized
However, the

court’s ruling struck the policies prohibiting gift subscriptions and
limiting the funds an inmate may spend on publications.

Therefore,

defendant’s argument that it will be too time consuming and costly is
moot.

After

the

court’s

ruling,

the

only

foreseeable

publication will be censored will be for content.

time

a

Defendant agreed

to send an individualized notice to the publisher when it censored a
publication due to content.

In the rare event that a publication is

censored for a non-content reason, the court finds that simultaneous
notification to both the inmate and the publisher satisfies due
process.
The court finds that plaintiff’s proposed notification, based on
the notification utilized by the Federal Bureau of Prisons, is
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Page 18 of 19

sufficient to provide adequate notice to both the inmate and the
publisher.
IV.

CONCLUSION
K.A.R.

§

44-12-601(g)(1)

and

IMPP

11-101,

Section

VI,

are

constitutionally infirm and therefore invalid. Defendant must notify
both the inmate and publisher at the time a publication is censored
by utilizing the form proposed by plaintiff.

(Doc. 72, exh. 2).

The

clerk is hereby ordered to enter judgment for plaintiff.
A motion for reconsideration of this order pursuant to this
court's Rule 7.3 is not encouraged.

The standards governing motions

to reconsider are well established.

A motion to reconsider is

appropriate where the court has obviously misapprehended a party's
position or the facts or applicable law, or where the party produces
new evidence that could not have been obtained through the exercise
of reasonable diligence.

Revisiting the issues already addressed is

not the purpose of a motion to reconsider and advancing new arguments
or supporting facts which were otherwise available for presentation
when the original motion was briefed or argued is inappropriate.
Comeau v. Rupp, 810 F. Supp. 1172 (D. Kan. 1992).

Any such motion

shall not exceed five pages and shall strictly comply with the
standards enunciated by this court in Comeau v. Rupp.

The response

to any motion for reconsideration shall not exceed three pages.
reply shall be filed.

IT IS SO ORDERED.
Dated this

1st

day of October 2007, at Wichita, Kansas.

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No

Case 5:02-cv-04054-MLB

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Filed 10/01/2007

Page 19 of 19

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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