Skip navigation
Prisoner Education Guide

Prison Legal News v. Columbia County, Findings of Fact re: Permanent Injunction 2013

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 1 of 46

Page ID#: 4530

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

Case No.: 3:12-cv-00071-SI

Plaintiff,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

v.
COLUMBIA COUNTY; COLUMBIA
COUNTY SHERIFF’S OFFICE; JEFFREY
DICKERSON, individually and in his
capacity as Columbia County Sheriff,
Defendants.

Jesse Wing and Katherine C. Chamberlain, Macdonald, Hoague & Bayless, 1500 Hoge Building,
705 Second Avenue, Seattle, WA 98104; Lance Weber, Human Rights Defense Center, 1037
Western Avenue, Second Floor, West Brattleboro, VT 05303; Marc D. Blackman, Ransom
Blackman, LLP, 1001 S.W. Fifth Avenue, Suite 1400, Portland, OR 97204. Attorneys for
Plaintiff.
Steven A. Kraemer and Gregory R. Roberson, Hart Wagner, LLP, 1000 S.W. Broadway, 20th
Floor, Portland, OR 97205. Attorneys for Defendants.

SIMON, District Judge.
INTRODUCTION
This case concerns the constitutionality of a county jail’s inmate mail policies.
Defendants Columbia County, the Columbia County Sheriff’s Office (the “CCSO”), and Sheriff
Jeffrey Dickerson (collectively “Defendants”) operate the county jail in Columbia County,

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 2 of 46

Page ID#: 4531

Oregon (the “Jail”). Plaintiff Prison Legal News (“PLN”) alleges that Defendants violated the
First Amendment by rejecting dozens of PLN’s publications and letters mailed to inmates
incarcerated in the Jail. PLN also alleges that Defendants violated the Fourteenth Amendment by
failing to provide both PLN and inmates with notice of and an opportunity to appeal the Jail’s
rejection of PLN’s publications and letters. PLN alleges that these violations are traceable to
three policies in effect at the Jail: (1) a policy limiting inmates’ personal mail, both incoming and
outgoing, to postcards only (the “postcard-only policy”); (2) a policy prohibiting inmates from
receiving magazines (the “magazine policy”); and (3) a policy that failed to provide for
constitutionally adequate procedural due process protections (the “notice and appeal policy”).1
Based on these allegations, PLN makes two claims for relief under 42 U.S.C. § 1983,
which provides a cause of action against state and local governments and their officials for
violations of a person’s federal constitutional or statutory rights. In its first claim, PLN asserts
that Defendants’ postcard-only and magazine policies violate PLN’s First Amendment rights, as
well as the First Amendment rights of inmates at the Jail and their other correspondents (the
“speech claim”). Compl. ¶¶ 5.1-5.4. In its second claim, PLN asserts that Defendants’ notice and
appeal policy violates PLN’s Fourteenth Amendment procedural due process rights and the
procedural due process rights of inmates and their other correspondents (the “due process
claim”). Compl. ¶¶ 5.5-5.8
1

As discussed below, Defendants contend that they did not have “policies” that
prohibited magazines or failed to provide constitutionally sufficient procedural due process.
Rather, they contend that Jail staff merely failed to deliver magazines and afford proper notice in
practice. Whether Defendants had such policies or Jail staff simply failed to deliver magazines
and afford proper notice in practice is crucial to determining whether Columbia County, the
CCSO, and Sheriff Dickerson in his official capacity are liable under 42 U.S.C. § 1983. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). In adopting the shorthand “magazine
policy” and “notice and appeal policy,” the Court merely names those portions of PLN’s
allegations and does not prejudge whether Defendants’ conduct with respect to magazines and
procedural due process protections was the result of “policies.”
Page 2 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 3 of 46

Page ID#: 4532

In response, Defendants maintain that the postcard-only policy is constitutional. They
admit, however, that inmates have a First Amendment right to receive magazines and inmates
and their correspondents have a Fourteenth Amendment right to procedural due process.
Am. Answer at ¶¶ 1.1, 5.2, 5.6; Dkt. 203. Defendants also admit that they rejected dozens of
PLN publications, including numerous issues of PLN’s eponymous journal and that Defendants
failed to provide PLN or the inmate-addressees with adequate due process notice and an
opportunity to appeal those rejections. Am. Answer; Dkt. 203. Despite these admissions,
Defendants contend that they did not have a “policy” of prohibiting magazines. Rather, they
argue that CCSO staff simply, but incorrectly, rejected magazines notwithstanding an official
“policy” that stated that magazines were permitted. Defendants also contend that CCSO staff
failed to afford constitutionally sufficient procedural due process notwithstanding an official
policy to the contrary.
Shortly after filing this action in January 2012, PLN moved for a preliminary injunction
to enjoin Defendants “from enforcing unconstitutional jail mail policies” and to order Defendants
to provide inmates, PLN, and inmates’ other correspondents with procedural due process
protections. Dkt. 7. In Turner v. Safley, 482 U.S. 78 (1987), the United States Supreme Court
promulgated a four-factor test to guide courts in determining whether a correctional institution’s
challenged regulations satisfy constitutional requirements. On May 29, 2012, this Court issued
an Opinion and Order granting in part and denying in part PLN’s motion for a preliminary
injunction. Dkt. 64; Prison Legal News v. Columbia Cnty., 3:12-cv-00071-SI, 2012 WL 1936108
(D. Or. May 29, 2012). The Court found that PLN was likely to succeed in showing that
Defendants’ postcard-only policy failed to satisfy the four-factor test set forth in Turner.
Accordingly, the Court enjoined Defendants “from restricting all incoming and outgoing inmate

Page 3 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 4 of 46

Page ID#: 4533

personal mail to postcards only.” Dkt. 64 at 26. On the basis of the record available at the time,
the Court concluded that Defendants’ inmate mail policy permitted magazines, although the
Court noted that Defendants had admitted that they failed to deliver PLN’s journal in practice.
The Court found that there was an insufficient evidentiary record to determine whether
Defendants unconstitutionally failed to afford inmates and their correspondents procedural due
process.
In its preliminary injunction opinion, the Court also found that PLN had standing to
assert its claims in two ways. Dkt. 64 at 10-13. First, the Court found that PLN had standing in
its own right because Defendants rejected dozens of pieces of mail sent from PLN to inmates.
Second, the Court found that PLN had standing pursuant to the “overbreadth doctrine.”
According to the overbreadth doctrine, a plaintiff “may challenge an overly broad statute or
regulation by showing that it may inhibit the First Amendment rights of individuals who are not
before the court.” 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir. 1999).
At that stage in the proceedings, the Court did not consider whether PLN had standing to obtain a
permanent injunction. That issue is discussed in the Conclusions of Law below.
The Court denied PLN’s motions for summary judgment, and the case was set for trial.
Dkt. 125. In its Complaint, PLN requested a permanent injunction, declaratory relief, and
nominal, compensatory, and punitive damages. Compl. at ¶¶ 7.1-7.3. Pursuant to Federal Rule of
Civil Procedure (“Rule”) 42(b), the Court bifurcated the case so that two separate trials could be
held. Dkt. 198. The first trial, held February 6-8, 2013, was tried to the bench and is intended to
resolve liability and, if appropriate, equitable relief.2 After trial, the parties filed post-trial briefs.
Dkt. 208-11. These Findings of Fact and Conclusions of Law address liability and equitable
2

The parties agreed that the Court should resolve all liability issues without a jury. Pl.’s
Trial Br. at 2; Defs.’ Trial Br. at 2; Pretrial Conference Tr. at 7-8.
Page 4 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 5 of 46

Page ID#: 4534

relief. A second trial, before a jury, may be necessary to resolve any remaining claim for
damages.
FINDINGS OF FACT
Based on the evidence presented at trial, the Court makes the following findings of fact
pursuant to Rule 52(a). To the extent any of the findings of fact should more properly be
considered conclusions of law, they should be treated as such.
A.

Credibility of Witnesses
In these findings of fact, the Court relies on the testimony of the following witnesses who

testified at trial: former CCSO Sergeant Bryan Cutright; former Jail Commander Jim Carpenter;
former CCSO Sergeant Raquel Miller; former CCSO Sergeant Ralph Lee Rigdon; Undersheriff
Andrew Moyer; Sheriff Jeffrey Dickerson; Paul Wright; and Patricia Mendoza. Having observed
and considered the testimony of each of these witnesses, the Court concludes that they provided
credible testimony.
B.

The Parties
PLN is a project of the Human Rights Defense Center, whose mission is to “advocate for

progressive reform and change within the nation’s criminal justice system[.]” Wright Test. at 4.3
PLN publishes a monthly magazine of the same name. Id. at 5. In addition, PLN operates several
websites, publishes nonfiction reference books, arranges public speaking and advocacy on behalf
of prisoners, and organizes campaigns seeking “reform and change within the criminal justice
system both locally and nationally.” Id.
PLN publishes and mails to inmates a variety of publications. These include:

3

At this time, neither party has ordered an official transcript of the trial. The Court’s
citations to the record are to unofficial and uncorrected transcripts. In the event that an official
transcript is prepared, page numbers may differ.
Page 5 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 6 of 46

Page ID#: 4535

(1)

PLN’s monthly journal, “Prison Legal News.” See Ex. 66;

(2)

Informational brochures (one double-sided page). See Ex. 67;

(3)

Subscription renewal letters. See Ex. 56;

(4)

Book offers (one double-sided page). See Ex. 69.

(5)

Book catalogs (one double-sided page). See Ex. 68; and

(6)

Fundraising appeals. See Ex. 64.

PLN combines informational brochures, book catalogs, and book offers into a single mailing that
it calls an “info pack.” Wright Test. at 16; see, e.g., Exs. 1-27. PLN combines subscription
renewal letters and informational brochures into a single mailing that it calls a “subscription
renewal pack.” See, e.g., Exs. 56-63. Info packs, subscription renewal packs, and fundrainsing
appeals are mailed in envelopes.
Sheriff Dickerson has served as the Sheriff of Columbia County since 2009. Dickerson
Test. at 206. He is the “chief executive officer of the peace in Columbia County” and is paid by
Columbia County. Id. Sheriff Dickerson runs the CCSO. Id. The CCSO employees the
equivalent of 38 full-time employees. Id. at 139. At the time the Jail adopted the postcard-only
policy in March 2010, the Jail had approximately 200 inmates. Cutright Test. at 81. The inmate
population dropped to approximately 130 in May 2012. Id.; Dickerson Test. at 69. On average,
the Jail processes approximately 35 pieces of outgoing inmate mail and 37 pieces of incoming
inmate mail each day. Miller Test. at 176-77; Dkt. 201.
C.

The Jail’s Inmate Mail Policies
The parties introduced ten versions or iterations of the Jail’s written inmate mail policy

(“IMP”) into evidence, ranging from the policy adopted in January 2008 to the policy adopted in
July 2012. Exs. 113, 272-76, 297-300. The October 2011 IMP was the policy in effect when

Page 6 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 7 of 46

Page ID#: 4536

PLN filed this action. Ex. 113. All of the IMPs distinguish between legal (sometimes called
“privileged”) mail and personal mail. Legal mail is inmate mail to or from individuals and
agencies such as courts, attorneys, CCSO staff, the governor, and the state attorney general. See,
e.g., Exs. 113, 272. Inmates are largely free to send or receive legal or privileged mail without
restriction. Personal mail is inmate mail to or from friends, family, organizations, and businesses.
See, e.g., Ex. 272.
D.

The Postcard-Only Policy
In 2009, Sheriff Dickerson, Undersheriff Moyer, and Commander Carpenter attended a

conference of the Oregon State Sheriffs’ Association. Carpenter Test. at 148. During the
conference, the Washington County Sheriff’s Office presented a session on postcard-only inmate
mail policies. The Washington County Sheriff’s Office advised attendees that a postcard-only
policy would enhance the security and safety of jails and save time. Dickerson Test. at 144-45.
Based on what he learned at the conference, Commander Carpenter believed that with a
postcard-only policy “there would be less chance of contraband because there were not
envelopes” in which to conceal contraband. Carpenter Test. at 150.
After the conference, the CCSO considered implementing a postcard-only policy. Id.
at 135-37. Although one of the rationales for the postcard-only policy discussed at the
conference was the prevention of contraband, the Jail did not have a problem with contraband
arriving in the mail. Commander Carpenter testified that during his 22-year career at the Jail he
could recall contraband entering the Jail through the mail only one time:
[COUNSEL:] But the jail didn’t have a problem with contraband coming
in through the mail prior to the adoption of the postcard-only policy, did
it?
[MR. CARPENTER:] No, ma’am.

Page 7 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 8 of 46

Page ID#: 4537

[COUNSEL:] In fact, in your 22 year tenure, you can only think of one
time when contraband may have come in through the mail?
[MR. CARPENTER:] We believe so. Due to our diligence.
Id. at 134. Sergeant Miller, who processed the mail “many, many times” over the course of
eleven years working for the CCSO, never personally found anything “unsafe” in the mail.
Miller Test. at 162, 179. During a meeting convened to discuss implementing a postcard-only
policy, no one stated that contraband had been entering the Jail through the mail. Id. at 136.
Another of the proposed rationales for adopting a postcard-only policy was that it could
save time. The amount of time the Jail could save by switching to a postcard-only policy,
however, was de minimis. Sergeant Rigdon testified that inspecting a letter required only a few
seconds more than inspecting a postcard:
[COUNSEL:] So you had a lot of experience processing inmate mail at the
Columbia County Jail, right?
[MR. RIGDON:] Yes, sir.
[COUNSEL:] And based on your experience it takes few moments or
seconds to open an envelope; is that true?
[MR. RIGDON:] Correct.
[COUNSEL:] And it takes a second or two to take the letter out of the
envelope?
[MR. RIGDON:] Yes.
[COUNSEL:] And it takes a few seconds to a scan a letter, right?
[MR. RIGDON:] Yes. If it is one page, yeah. If it is several pages, it might
take longer, but yeah.
[COUNSEL:] And it probably takes the same amount of time to scan a
letter that it takes to scan a postcards?

Page 8 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 9 of 46

Page ID#: 4538

[MR. RIGDON:] If we are talk talking about a one page type deal, I would
say, yes, that's probably accurate.
[COUNSEL:] So any increase [in the] amount of time [it takes] to process
a letter versus a postcard is caused by opening a letter and taking the letter
out of the envelope; is that correct?
[MR. RIGDON:] Yes, sir.
[COUNSEL:] And that increased amount of time is a few seconds or a
few moments, right?
[MR. RIGDON:] Well, I have never timed it, sir but yes.
Rigdon Test. at 11. Commander Carpenter added that he was unaware whether the postcard-only
policy “actually saved any time.” Carpenter Test. at 135.
Nonetheless, Commander Carpenter recommended to Sheriff Dickerson that the CCSO
adopt a postcard-only policy. Dickerson Test. at 146-47. Sheriff Dickerson agreed and directed
the CCSO to implement the policy. Id. at 147. Defendants have identified three reasons for why
they adopted the postcard-only policy: (1) to makes their procedures consistent with other
sheriffs’ offices; (2) to prevent the introduction of contraband into the Jail; and (3) to save time.
Cutright Test. at 76; Dickerson Test. at 53, 145. Although Defendants implemented the postcardonly policy, in part, to prevent the introduction of contraband into the Jail, Sheriff Dickerson
agreed that he did not implement the policy “to solve a known problem” of contraband entering
the Jail. Dickerson Test. at 54 (emphasis added).
At the time they adopted the postcard-only policy, Defendants believed that this policy
would be constitutional. According to Commander Carpenter, “Washington [C]ounty said that
[postcard-only policies] had been tested in other states and that it went through the courts in
several other states and that they felt it was a legal thing to do.” Carpenter Test. at 152-53.
Sheriff Dickerson recalled “a presentation by Washington County that included a lawyer

Page 9 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 10 of 46

Page ID#: 4539

advising that the limited knowledge so far about postcards was that it had been tried in at least
one court” and that court found that a postcard-only policy was constitutional. Dickerson Test.
at 147.
The March 2010 IMP was the first IMP at the Jail to adopt a postcard-only policy.
Ex. 299. It provided that “[a]ll correspondence to and from inmates of the Columbia County jail
will be in the form of a post card [sic] unless it is legal or official mail.” Ex. 113. Under a
heading labeled “Outgoing mail,” the policy added that “[a]ll outgoing mail from inmates to their
family and friends will be in the form of a postcard o[r] special occasion card that has been
purchased from the Columbia County commissary account.” Id. The Jail adopted revised IMPs
in July 2011 and October 2011. Exs. 113, 300. Those IMPs retained the postcard-only policy in
substantially the same form.
After PLN filed this action on January 13, 2012, the Jail adopted several revised IMPs.
Exs. 272-76. The Jail’s revised policies, promulgated in January, February, and May, retained
the postcard-only policy. Exs. 272-74. The May 2012 IMP provided that “[e]xcept as otherwise
provided below, personal mail may be sent and received by inmates only in postcard form.”
Ex. 274 at 3. Unlike the IMPs in effect before PLN filed this action, the January, February, and
May 2012 IMPs contained an exception to the postcard-only policies for inmates who were
within 30 days of completing their sentence. The Jail issued revised IMPs that did not contain a
postcard-only policy after the Court issued its preliminary injunction on May 29, 2012.
Exs. 275-76.
E.

Magazines
All of the IMPs provided that inmates may receive periodicals, so long as the periodicals

were sent directly from the publisher or a bookstore. Exs. 113, 272-76, 296-300. Nonetheless,

Page 10 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 11 of 46

Page ID#: 4540

Defendants did not in fact allow magazines to enter the Jail. Jail staff did not consult or follow
the IMPs when deciding whether to permit inmates to receive magazines. Dickerson Test. at 242;
Moyer Test. at 188. Instead, Jail staff relied on the Jail’s written inmate manual, which expressly
stated that the Jail does “not accept magazines.” Ex. 107-11; Cutright Test. at 46; Dickerson
Test. at 243. Commander Carpenter testified that it was the CCSO’s actual practice to prohibit
magazines in the Jail. Carpenter Test. at 131. During the course of his 22-year career with the
CCSO, Commander Carpenter only once observed a magazine arrive by mail for an inmate, and,
on that occasion, Jail staff rejected it. Id. Sergeant Rigdon testified that he believed the Jail had a
policy prohibiting magazines. Rigdon Test. at 5. Sergeant Miller testified that it was her
understanding that magazines were not permitted in the Jail. Miller Test. at 21. On March 23,
2010, Sergeant Cutright distributed a memorandum to corrections staff and inmates that stated
that “[m]agazines are not allowed inside the facility.” Ex. 98; Cutright Test. at 52. That
memorandum remained in inmate areas of the Jail until May 2012. Moyer Test. at 203. The
CCSO’s website also stated that magazines were not permitted in the Jail. Exs. 100-01. On two
occasions, inmates filed inmate request forms asking if they could receive magazines. In both
cases, Jail staff replied that magazines are not permitted. Exs. 143, 194; Cutright Test. at 57-58.
F.

Notice and Appeal
The Jail’s IMPs state that inmates will receive notice when the Jail rejects incoming

inmate mail. They also state that inmates should receive an opportunity to appeal the Jail’s
censorship decisions. The October 2011 IMP provided, for example:
If mail is rejected the inmate/addressee will receive written notification
explaining:
i.

The correspondence has been rejected,

ii.

The reason it was rejected,

Page 11 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

iii.

Document 214

Filed 04/24/13

Page 12 of 46

Page ID#: 4541

The process to informally appeal the rejection to the jail
commander.

A copy of the notification will be placed in the inmate’s file.
Ex. 113; see also Exs. 296-99. Notwithstanding this provision, CCSO staff “rarely” provided
inmates with notice when the Jail rejected incoming mail. Cutright Test. at 61, 64-66.
The October 2011 IMP did not require Jail staff to notify the senders of incoming mail
when staff rejected their mail. It also did not require Jail staff to notify inmates when the Jail
rejected outgoing mail.
After PLN filed this action, the Jail adopted several substantially revised IMPs. These
IMPs promulgated new rules governing notice and appeal requirements for incoming inmate
mail. The January and February 2012 IMPs contained several paragraphs addressing notice.
Ex. 272 (January 2012 IMP) and 273 (February 2012 IMP). Paragraph 30, located in a section of
each of these IMPs titled “Regulating Inmate Mail,” provided:
Normally, mail handlers confiscate prohibited items. The sender of
confiscated mail must be notified pursuant to paragraph 31. . . .
a.

[...]

b.
Mail handlers will use a Prohibited Mail Slip to inform the inmate
of the confiscation and use a copy as a tag for the items. They will place
confiscated items in the inmate’s property storage[.]
c.
Mail handlers must notify the sender in writing that mail they sent
was confiscated or not delivered to the inmate, unless the inmate is no
longer in custody. They should use a Prohibited Mail Slip for the
notification. Any notice will give the reason and explain how the sender
can informally appeal the action.

Page 12 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 13 of 46

Page ID#: 4542

Ex. 273. Paragraph 31, located under the heading “Processing Incoming Mail,” requires mail
handlers to “[s]end a notice of right to reconsideration with returned mail. Send a notice of right
to reconsideration to senders of confiscated mail.” Id.
The February 2012 IMP also provided that “[m]ail handlers will use a Prohibited Mail
Slip to inform the inmate and the sender when mail is returned to sender.” Id. The Prohibited
Mail Notice consists of check-boxes allowing a mail handler to indicate the reason that a piece of
incoming mail was returned or confiscated. The check-box choices include such descriptions as:
“personal mail and not on a post card”; “contains sexually explicit material”; “did not come
directly from a publisher.” At the bottom of the Prohibited Mail Notice is a paragraph describing
the appeal process. Ex. 273. The January and February 2012 IMPs, however, did not provide that
inmates should receive notice when the Jail rejected or censored outgoing inmate mail.
The Jail revised the notice and appeal provisions again in the May, June, and July 2012
IMPs. The July 2012 IMP, the most recent IMP received in evidence, provides for a notice and
appeal process for both incoming and outgoing inmate mail. Ex. 276. With respect to incoming
inmate mail, the July 2012 IMP provides that Jail staff will provide a Prohibited Mail Notice to
both the sender and the intended inmate when the Jail rejects incoming mail. Id. For outgoing
mail, the July 2012 IMP states that both “inmate and addressee will be provided with a
Prohibited Mail Notice[.]” Id. A separate section addressing confiscated mail provides that if “a
Jail Supervisor signs a Prohibited Mail Notice, the sender and addressee of the confiscated mail
must be notified of the confiscation whether the disposition was to return the mail, store it, or
destroy it.” Id. The IMP provides an appeal process for both inmates and their unincarcerated
correspondents. Id. A sample Prohibited Mail Notice is attached to the July 2012 IMP. Like the

Page 13 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 14 of 46

Page ID#: 4543

Prohibited Mail Notice attached to the February 2012 IMP, it requires Jail staff to indicate the
reason why the mail was rejected. Id. It also explains the appeal process. Id.
G.

Effects of Defendants’ Policies
The Jail returned or failed to deliver dozens of PLN publications mailed to inmates,

including PLN’s journal, info packs, subscription renewal packs, and fundraising appeals.
Wright Test. at 17; Exs. 1-15, 17-50, 52-65; Dkt. 203. The Jail also returned nearly 20 letters
sent from Lucy Lennox, an unincarcerated individual, to inmates. Exs. 71-87, 89. Inmates filed
numerous grievances with the CCSO protesting the postcard-only policy. Exs. 130-33, 135, 140.
Further, Defendants stipulated that they “did not provide PLN or the prison-addressees due
process notice or an opportunity to appeal the censorship decisions when the Jail censored”
PLN’s mail. Dkt. 203. Defendants also stipulated that they “did not provide Ms. Lennox or the
prisoner-addressees with due process notice or an opportunity to appeal the censorship decisions
when the Jail censored” mail Ms. Lennox sent to inmates. Id.
In addition, the postcard-only policy prohibited inmates and their correspondents from
sending a variety of items through the mail. Sheriff Dickerson confirmed that the policy would
prohibit items such as children’s report cards, bills in need of payment, and articles printed from
the internet:
[COUNSEL: The postcard-only policy] prevented families from sending
their children’s report cards, right?
[SHERIFF DICKERSON:] They couldn’t send the actual card.
[...]
[COUNSEL:] The postcard-only policy would prevent copies of bills
being sent to prisoners, right?
[SHERIFF DICKERSON:] Yes. Generally.

Page 14 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 15 of 46

Page ID#: 4544

[COUNSEL:] Prevent sending doctors’ reports?
[SHERIFF DICKERSON:] Yes.
[COUNSEL:] Would prevent copies of articles that were published in
newspaper or magazines or on the Internet, right?
[SHERIFF DICKERSON:] Yes.
[COUNSEL:] Prevent educational, community or religious organizations
sending in lessons, whether religious or otherwise, right?
[SHERIFF DICKERSON:] Yes.
Dickerson Test. at 78-79. Patricia Mendoza, whose husband was incarcerated in the Jail, was
unable to mail her husband a legal document because of the policy. Mendoza Test. at 7.
In addition to preventing inmates and their correspondents from sending items through
the mail, the postcard-only policy reduced the quality and quantity of communication between
inmates and their correspondents. Sheriff Dickerson testified that the postcard-only policy
limited the amount of space in which an inmate could write. He added that the limitation on
space resulted in “a reduction in communication” and a “minimization of [inmates’] speech.”
Dickerson Test. at 74-75. The postcard-only policy also caused inmates and their correspondents
to limit the topics they communicated about through the mail. Ms. Mendoza explained that she
did not feel comfortable addressing some topics on postcards because they did not feel private: “I
just didn’t feel comfortable saying certain things because it is open mail. I didn’t know if our
local post office was going to read it. . . . I didn’t feel comfortable writing certain things.”
Mendoza Test. at 4-5. She was also concerned that her children might read the postcards.
“Normally we talk about our kids or financial issues. I was concerned about what he would write

Page 15 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 16 of 46

Page ID#: 4545

on a postcard. If my kids were to check the mail I didn’t know if they were going to read my
mail.” Id. at 5.
CONCLUSIONS OF LAW
As noted above, PLN seeks injunctive, declaratory, and monetary relief for violations of
the First and Fourteenth Amendments. Pursuant to the Court’s order bifurcating this case,
presently before the Court is the issue of liability and, if appropriate, equitable relief.
A.

Preliminary Legal Issues
1.

Standing

Defendants challenge PLN’s standing to obtain a permanent injunction.4 Defs.’ Post-Trial
Br. at 1-4. Defendants argue that because they “are no longer engaging in the conduct [that]
plaintiff asserts is unconstitutional,” there is “not a real and immediate threat that the same
deprivation will occur in the future.” Defs.’ Post-Trial Br. at 1. Among other requirements, a
plaintiff has standing to seek “injunctive relief only if he can show that he faces a ‘real or
immediate threat that he will again be wronged in a similar way.’” Mayfield v. United States,
599 F.3d 964, 970 (9th Cir. 2010) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111
(1983)) (emphasis added); see also Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (“To
seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’
that is concrete and particularized [and] the threat must be actual and imminent, not conjectural
or hypothetical . . . .” (citation omitted)). The Ninth Circuit has described two ways in which a
plaintiff may demonstrate that an injury is likely to recur: “First, a plaintiff may show that the

4

Defendants also argued at the preliminary injunction stage of this litigation that PLN
lacked standing and that this case was moot. In its preliminary injunction opinion, the Court
rejected those arguments. Prison Legal News v. Columbia Cnty., 3:12-cv-00071-SI, 2012 WL
1936108, at *5-6 (D. Or. May 29, 2012). Defendants’ standing argument here applies only to
PLN’s request for equitable relief.
Page 16 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 17 of 46

Page ID#: 4546

defendant had, at the time of the injury, a written policy, and that the injury ‘stems from’ that
policy. Second, the plaintiff may demonstrate that the harm is part of a ‘pattern of officially
sanctioned . . . behavior, violative of the plaintiffs’ [federal] rights.’” Melendres v. Arpaio, 695
F.3d 990, 998 (9th Cir. 2012) (quoting Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001).
(alterations in original). “Standing is determined by the facts that exist at the time the complaint
is filed.” Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001).
PLN has shown that its injuries stemmed from written policies or officially sanctioned
patterns of practice that were in effect at the time PLN filed its complaint. As discussed below, at
that time, Defendants maintained written policies and customs that restricted inmates’ incoming
and outgoing personal mail to postcards, prohibited magazines, and failed to provide for
constitutionally sufficient due process notice.5 PLN’s injuries resulted from these policies and
customs. As such, PLN has standing to pursue injunctive relief.
2.

Mootness

Defendants also argue that PLN’s claims are moot, again because Defendants’ have
amended their policies. Defs.’ Post-Trial Br. at 3. Unlike standing questions, mootness “inquiries
. . . require courts to look to changing circumstances that arise after the complaint is filed[.]”
Clark, 259 F.3d at 1006 (emphasis added). Nonetheless, a “defendant’s voluntary cessation of
allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). A case becomes moot only “if
subsequent events made it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Id. at 189 (internal quotation marks and citations omitted)
(emphasis added). The “party alleging mootness bears a heavy burden in seeking dismissal.”

5

The existence and scope of these policies are discussed below.

Page 17 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 18 of 46

Page ID#: 4547

Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009)
(internal quotation marks and citation omitted).
In response to the Court’s preliminary injunction, Defendants eliminated the postcardonly policy. Further, Defendants have voluntarily amended the IMP to provide adequate due
process protections and clarified that the Jail permits inmates to receive magazines. Nonetheless,
it is not absolutely clear that Defendants will not reinstitute the postcard-only policy or the
magazine ban in the future. Nor is it absolutely clear that Defendants will not roll back the IMP’s
procedural due process protections. Although Sheriff Dickerson testified credibly that he will not
reinstitute any constitutionally violative policies, the position of Columbia County Sheriff is an
elected office and a future sheriff may not choose to adhere to the same policies. Thus,
Defendants have failed to meet their heavy burden of demonstrating that the allegedly wrongful
conduct could not reasonably be expected to recur.
B.

Liability
To prevail on a § 1983 claim, a plaintiff must prove by a preponderance of evidence (1)

that a right secured by the Constitution or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the color of state law. Long v. Cnty. of
Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (elements of § 1983 claim); Dias v. Elique,
436 F.3d 1125, 1129 (9th Cir. 2006) (a plaintiff must prove § 1983 claim by a preponderance of
evidence).
There is no dispute in this case that Defendants acted under color of state law. Thus, the
only question is whether Defendants violated rights secured by the Constitution. The Court
considers this question separately with respect to the postcard-only policy, magazine policy, and
notice and appeal policy.

Page 18 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

1.

Document 214

Filed 04/24/13

Page 19 of 46

Page ID#: 4548

Postcard-Only Policy

PLN alleges that Defendants violated its First Amendment rights, and the First
Amendment rights of inmates and their correspondents, by rejecting inmate mail that was not on
a postcard. Compl. at ¶¶ 5.1-5.4. Defendants admit that they rejected numerous letters sent from
PLN to inmates. Dkt. 203. They contend, however, that their postcard-only policy does not
violate the First Amendment. Defs.’ Post-Trial Br. at 6-11.
Publishers, such as PLN, “have a First Amendment right to communicate with prisoners
by mail, and inmates have a First Amendment right to receive this mail.”6 Prison Legal News v.
Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (“PLN II”). The scope and potency of these rights
are, however, “subject to substantial limitations and restrictions in order to allow prison officials
to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner,
917 F.2d 382, 385 (9th Cir. 1990). To determine whether a correctional institution’s regulation
that “impinges on inmates’ constitutional rights” is valid, the court must determine whether that
regulation “is reasonably related to legitimate penological interests.”7 Turner v. Safley, 482 U.S.
78, 89 (1987).
6

The First Amendment is made applicable against state and local governments by the
Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964).
7

PLN contends that the standard articulated in Turner applies only to incoming mail,
and the standard articulated in Procunier v. Martinez, 416 U.S. 396 (1974), overruled in part by
Thornburgh v. Abbott, 490 U.S. 401 (1989), applies to prison regulations governing outgoing
mail. Pl.’s Post-Trial Br. at 7. PLN is correct. Martinez “is controlling law in the Ninth Circuit
and elsewhere as applied to claims involving outgoing prisoner mail.” Barrett v. Belleque, 544
F.3d 1060, 1062 (9th Cir. 2008); see also Abbott, 490 U.S. at 413 (“[T]he logic of our analyses in
Martinez and Turner requires that Martinez be limited to regulations concerning outgoing
correspondence.”). Nonetheless, it is unnecessary to apply the more demanding Martinez test to
the postcard-only policy with respect to outgoing mail. Under Martinez, “the regulation . . . in
question must further an important or substantial governmental interest unrelated to the
suppression of expression,” and “the limitation of First Amendment freedoms must be no greater
than is necessary or essential to the protection of the particular governmental interest involved.”
416 U.S. at 413. The Martinez standard is more protective of inmate rights than the Turner
Page 19 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 20 of 46

Page ID#: 4549

In Turner, the Supreme Court promulgated “a four-pronged test that guides courts in
determining whether a challenged regulation passes constitutional muster.” Frost v. Symington,
197 F.3d 348, 354 (9th Cir. 1999). Under the Turner test, courts must determine:
(1) whether the regulation is rationally related to a legitimate and neutral
governmental objective; (2) whether there are alternative avenues that
remain open to the inmates to exercise the right; (3) the impact that
accommodating the asserted right will have on other guards and prisoners,
and on the allocation of prison resources; and (4) whether the existence of
easy and obvious alternatives indicates that the regulation is an
exaggerated response by prison officials.
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (“PLN I”) (citing Turner, 482
U.S. at 89-90). These factors apply not only to regulations governing inmates’ rights to receive
mail, but also “to regulations affecting publishers’ rights to send materials to prisoners.” Id.
(emphasis omitted). “The first of these factors constitutes a sine qua non.” Walker, 917 F.2d
at 385. In other words, “if a regulation is not rationally related to a legitimate and neutral
governmental objective, a court need not reach the remaining three factors.” PLN II, 397 F.3d
at 699.
a.

Rational relationship

Under the first Turner factor, “there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482
U.S. at 89 (internal quotation marks and citation omitted). This requires the Court to “determine
whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3)

standard because it requires a “closer fit between the regulation and the purpose it serves.” See
Abbott, 490 U.S. at 412. As explained below, the Court finds that the postcard-only policy fails
to satisfy the Turner test with respect to both incoming and outgoing mail. Because the
restrictions limiting outgoing personal mail to postcards fail to survive the more deferential
Turner test, the Court need not also consider whether those restrictions survive the more
demanding Martinez test.
Page 20 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 21 of 46

Page ID#: 4550

whether the policy is ‘rationally related to that objective.’” Mauro v. Arpaio, 188 F.3d 1054,
1059 (9th Cir. 1999) (en banc) (quoting Abbott, 490 U.S. at 414).
As discussed in the Findings of Fact, Defendants identified three objectives in adopting
the postcard-only policy: (1) to standardize their procedures with other sheriffs’ offices; (2) to
enhance security; and (3) to promote efficiency. Security and efficiency are legitimate
penological objectives. Abbott, 490 U.S. at 415 (the “legitimacy of the Government’s purpose in
[protecting prison security] is beyond question”); Freeman v. Tex. Dep’t of Criminal Justice, 369
F.3d 854, 861 (5th Cir. 2004) (“staff and space limitations, as well as financial burdens, are valid
penological interests”). Standardizing procedures with other sheriffs’ offices, however, is not a
legitimate penological objective. Achieving consistency in mail policies between correctional
institutions may streamline administration. Even so, the administrative convenience achieved by
such standardization is not in itself a penological objective except to the extent that doing so may
indirectly support security or efficiency.
Whether a regulation is neutral depends on whether it operates “without regard to the
content of the expression.” Turner, 284 U.S. at 90. The postcard-only policy provides for no
restrictions based on content, and the parties do not dispute that it is neutral.
The remaining question under the first factor is, therefore, whether the postcard-only
policy is rationally related to the objectives of enhancing security and promoting efficiency. A
“regulation cannot be sustained where the logical connection between the regulation and the
asserted goal is so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S.
at 89-90. Although the Court must uphold a regulation that bears a rational relationship to a
legitimate penological interest, this standard “is not toothless.” Abbott, 490 U.S. at 414 (1989)
(internal quotation marks and citation omitted). “Turner requires prison authorities to show more

Page 21 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 22 of 46

Page ID#: 4551

than a formalistic logical connection between a regulation and a penological objective.” Beard v.
Banks, 548 U.S. 521, 535 (2006).
The government may demonstrate a rational relationship by showing “an intuitive,
common[-]sense connection” between the Jail’s policy and its objectives. Frost, 197 F.3d at 356.
If the plaintiff does not “present sufficient evidence to refute [that] common-sense
connection . . . ‘[the government] need not prove that the banned material actually caused
problems in the past, or that the materials are “likely” to cause problems in the future.’” PLN I,
238 F.3d at 1150 (quoting Mauro, 188 F.3d at 1060). “The only question is whether prison
administrators reasonably could have thought the regulation would advance legitimate
penological interests.” Id. If, however, the plaintiff presents sufficient evidence to refute the
government’s common-sense connection between the regulation and its objectives, the
government “must present enough counter-evidence to show that the connection is not so
‘remote as to render the policy arbitrary or irrational.’” Frost, 197 F.3d at 357 (quoting
Mauro, 188 F.3d at 1060).
There is not an intuitive, common-sense connection between the postcard-only policy and
enhancing jail security. Defendants contend that a postcard-only policy enhances security
because contraband may be concealed within envelopes. Carpenter Test. at 150; Defs.’ Post-Trial
Br. at 7. This rationale, however, is only compelling to the extent that it is compared to a policy
of permitting inmates to send and receive letters without the jail opening envelopes and
inspecting their contents. Compared to a “no inspection” policy, Defendants are undoubtedly
correct that there is a common-sense connection between adopting a postcard-only policy and
enhancing security. If Jail staff did not open and inspect envelopes and their contents, inmates
and their correspondents could easily send and receive contraband. Before adopting the postcard-

Page 22 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 23 of 46

Page ID#: 4552

only policy, however, the Jail did not have a “no inspection” policy. Instead, CCSO staff opened
and inspected letters to and from inmates. Miller Test. at 170. To determine whether there is a
common-sense connection between the postcard-only policy and enhanced security, the Court
must analyze the postcard-only policy within the context of the Jail’s other practices and
regulations. See PLN I, 238 F.3d at 1150 (rejecting state’s argument that ban on certain mail
reduced prisoner’s accumulation of paper, and hence fire hazards, because separate prison
regulation already limited amount of paper prisoner may store in cell). When the postcard-only
policy is compared to a policy of opening envelopes and inspecting their contents, the rational
relationship between the postcard-only policy and enhancing security dissolves. Defendants did
not at trial, and do not in their post-trial briefing, offer any explanation why a postcard-only
policy is more effective at preventing the introduction of contraband than opening envelopes and
inspecting their contents. Defendants have, therefore, failed to present “an intuitive,
common[-]sense connection” between the postcard-only policy and enhancing security.
Even if there were a common-sense connection between the postcard-only policy and
enhancing security, PLN presented evidence that convincingly refutes that connection.
Defendants did not have a problem with contraband entering the Jail through the mail. In fact,
Defendants concede that there were “at most[] one or two instances where contraband may have
entered the facility through the mail[.]” Defs.’ Post-Trial Br. at 7 (emphasis added). Sheriff
Dickerson agreed that the postcard-only policy was not adopted in response to a known
contraband problem. Defendants’ postcard-only policy was a solution in search of a problem.
Under Ninth Circuit precedent, Defendants need not prove that there have been past
episodes of contraband entering the Jail through the mail in order to establish a rational
connection between the postcard-only policy and enhancing security. Casey v. Lewis, 4

Page 23 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 24 of 46

Page ID#: 4553

F.3d 1516, 1521 (9th Cir. 1993). Even so, the absence of an inmate mail security problem at the
Jail enervates Defendants’ contention that the postcard-only policy is rationally related to
enhancing security. Cf. Mauro, 188 F.3d at 1060 n.3 (“Although it is not required that prison
officials be able to show that the prohibited materials have actually caused problems in the
past, . . . their ability to do so certainly strengthens their case.” (internal citation omitted)).
Turner does not give prison officials a “blank check” to restrict constitutional rights. See
Johnson v. California, 543 U.S. 499, 547 (2005) (Thomas, J., dissenting).
In the absence of evidence demonstrating an inmate mail security problem, and without a
credible explanation of why a postcard-only policy is more effective at preventing the
introduction of contraband than opening envelopes and inspecting their contents, the Court
concludes that the postcard-only policy not rationally related to enhancing jail security. Further,
the Ninth Circuit has regularly rejected claims that policies broadly prohibiting certain classes of
mail have a rational relationship to enhancing security. See, e.g., PLN I, 238 F.3d at 1150
(correctional institution “has presented no evidence supporting a rational distinction between the
risk of contraband in subscription non-profit organization standard mail and first class or
periodicals mail”); Morrison v. Hall, 261 F.3d 896, 902 (9th Cir. 2001) (“[A]lthough the
defendants presented evidence that contraband is sometimes included in bulk rate, third, and
fourth class mail, the defendants have failed to present any evidence that the risk of contraband
in first or second class mail is any lower than the risk of contraband in mail that is sent bulk rate,
third, or fourth class[.]”); Ashker v. Cal. Dep’t of Corr., 350 F.3d 917, 923 (9th Cir. 2003)
(invalidating requirement that books mailed to inmates have an approved book label or vendor
stamp as not rationally related to reducing contraband, in part because correctional institution
searches mail regardless); PLN II, 397 F.3d at 700 (overturning ban on requested bulk mail).

Page 24 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 25 of 46

Page ID#: 4554

With respect to promoting efficiency, Defendants adopted the postcard-only policy in
order to save time. There is a common-sense connection between the postcard-only policy and
promoting efficiency: Postcards do not need to be opened and they have no contents that need
inspection (although their text may still need to be read for security purposes). PLN presented
convincing evidence, however, to refute this common-sense connection. Sergeant Rigdon
testified that the increased amount of time to open and inspect a letter compared to inspecting a
postcard amounted to only a few seconds or moments. On average, the Jail processed
approximately 37 pieces of incoming and 35 pieces of outgoing mail each day. Thus the
combined savings accrued under a postcard-only policy could amount to only several minutes
each day. Defendants concede that “the time savings for the [J]ail was, at best, minimal.” Defs.’
Post-Trail Br. at 8. The de minimis savings in time achieved by the postcard-only policy is too
small to create a rational connection between the policy and promoting efficiency at the Jail. See
PLN I, 238 F.3d at 1151 (“We do not believe that requiring delivery of non-profit organization
standard mail will unduly burden the [correctional institution].”); Morrison, 261 F.3d at 903
(noting that in PLN I, “we held that the ‘efficient use of staff time’ argument cannot justify an
effective ban on non-profit subscription publications”); PLN II, 397 F.3d at 700 (rejecting ban on
for-profit subscription publications as not rationally related to controlling volume of mail).
The Court concludes, therefore, that the postcard-only policy fails to satisfy Turner’s
rational relationship factor. Even though the rational relationship factor is the sine qua non, it is,
nonetheless, useful to consider the remaining Turner factors as well. In doing so, the Court must
bear in mind that the “real task . . . is not balancing these factors, but rather determining whether
[Defendants] show[] more than simply a logical relation” between the postcard-only policy and
their legitimate penological goals. Beard, 548 U.S. at 533.

Page 25 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

b.

Document 214

Filed 04/24/13

Page 26 of 46

Page ID#: 4555

Alternative avenues

The second factor of the Turner test “is whether there are alternative means of exercising
the right that remain open to prison inmates.” Turner, 482 U.S. at 90. “In applying this factor,
‘the right in question must be viewed sensibly and expansively.’” Mauro, 188 F.3d at 1061
(quoting Abbott, 490 U.S. at 417). Thus, the Supreme Court has upheld a prohibition on inmates’
ability to attend the Jumu’ah, a Muslim religious ceremony, because inmates were permitted to
participate in other Muslim religious ceremonies. O’Lone v. Estate of Shabazz, 482 U.S. 342
(1987). The Supreme Court has also upheld a restrictive prisoner visitation policy in part because
“inmates may communicate with persons outside the prison by letter and telephone.” Overton v.
Bazzetta, 539 U.S. 126, 135 (2003). The Court noted that “[a]lternatives to visitation need not be
ideal . . . ; they need only be available.” Id.
The postcard-only policy erects a barrier to many forms of communication between
inmates and their unincarcerated correspondents. It prevents an inmate’s family from sending
items such as photographs, children’s report cards and drawings, and copies of bills, doctor
reports, and spiritual and religious tracts. Dickerson Test. at 78-79. It prevents an inmate’s
friends and other correspondents from sending printed copies of articles published in newspapers
or magazines, or on the internet. See, e.g., Exs. 71-87. It prevents educational, community, and
religious organizations from sending lessons, book and periodical offers, and fundraising
appeals. See, e.g., Exs. 1-15, 57-65. Finally, and perhaps most importantly, the postcard-only
policy creates a hurdle to thoughtful, personal, and constructive written communications between
an inmate and his or her unincarcerated family and friends. Mendoza Test. at 4-5.
As the Court explained in its preliminary injunction opinion, Dkt. 64, these are not
insignificant considerations. The postcard-only policy not only restrains PLN and inmates’ First

Page 26 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 27 of 46

Page ID#: 4556

Amendment rights, it also inhibits rehabilitation. The Supreme Court has noted that “the weight
of professional opinion seems to be that inmate freedom to correspond with outsiders advances
rather than retards the goal of rehabilitation.” Martinez, 416 U.S at 412.
Nonetheless, other avenues of communications are available. The Jail permits inmates to
place phone calls and receive visitors. Cutright Test. at 84-85. Phone calls and visits cannot
replace the ability to send items such as photographs, drawings, report cards, and bills. As the
Supreme Court provided, however, the alternatives need not be ideal, only available. On balance,
Turner’s second factor may be neutral: The postcard-only policy limits an important avenue of
communication, but inmates retain other avenues.
c.

Effects on staff, inmates, and resources

The third Turner factor “is the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources generally.”
Turner, 482 U.S. at 90. According to Turner, “courts should be particularly deferential to the
informed discretion of corrections officials” when accommodating a constitutional right that will
have “have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. In Turner, the
Court found that allowing certain inmate-to-inmate correspondence could “be exercised only at
the cost of significantly less liberty and safety” for inmates and staff generally and, therefore, the
court upheld certain restrictions on such correspondence. Id. at 92-93. This factor often weighs
heavily when courts consider mail policies that restrict potentially disruptive content, such as
depictions or descriptions of violence, escape, or criminal activity, sexually-explicit materials,
and role-playing games, see, e.g., Frost, 197 F.3d at 351-52; Bahrampour v. Lampert, 356
F.3d 969 (9th Cir. 2004), or where the challenged regulation saves the prison substantial
resources, see, e.g., Bazzetta, 539 U.S. at 135.

Page 27 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 28 of 46

Page ID#: 4557

Here, accommodating letters is unlikely to have a “significant ripple effect” on inmates
and staff. As explained above, there is no evidence that a postcard-only policy is more secure
than opening envelopes and inspecting their contents. In addition, the time-savings afforded to
the Jail by the postcard-only mail policy is de minimis. Thus, the third Turner factor suggests that
the postcard-only is not rationally related to legitimate penological goals.
d.

Easy and obvious alternatives

The final Turner factor requires the court to “consider ‘whether the existence of easy and
obvious alternatives indicates that the regulation is an exaggerated response by prison officials.’”
Morrison, 261 F.3d at 905 (quoting PLN I, 238 F.3d at 1149). If a “claimant can point to an
alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy the reasonable
relationship standard.” Turner, 482 U.S. at 91. This factor favors PLN. As noted above, before
implementing the postcard-only policy in 2010, Defendants opened and inspected envelopes and
their contents. Given that opening envelopes and inspecting their contents effectively prevents
the introduction of contraband into the Jail and requires only a de minimis amount of additional
time, it is an easy and obvious alternative.
The inmate mail policies in other correctional institutions also support this conclusion.
Other jails in Oregon, as well the Washington State Department of Corrections and the United
States Bureau of Prisons, have mail policies that permit inmates to send and receive letters and
periodicals. Exs. 148-52. These policies provide further evidence that opening envelopes and
inspecting their contents is an easy and obvious alternative to the Jail’s postcard-only policy.
Morrison, 261 F.3d at 905 (policies at other correctional institutions are relevant to consideration
of fourth Turner factor).

Page 28 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

e.

Document 214

Filed 04/24/13

Page 29 of 46

Page ID#: 4558

Other case law

In their post-trial brief, Defendants cite to several cases in which other district courts
have upheld postcard-only mail policies. Only two cases, however, thoroughly considered the
Turner factors: Covell v. Arpaio, 662 F.Supp.2d 1146 (D. Az. 2009) and Althouse v. Palm Beach
County Sheriff's Office, 12-80135-CIV, 2013 WL 536072 (S.D. Fla. Feb. 12, 2013). In Covell,
the district court held that the defendant’s inmate mail policy, which limited inmates to receiving
metered postcards, was reasonably related to a legitimate penological interest in reducing
contraband. The district court provided two reasons for this holding. First, the inmate mail policy
in Covell prohibited the use of postage stamps. The defendant argued that correspondents could
smuggle drugs into the jail under stamps. The district court agreed. Covell, 662 F.Supp.2d at
1153-54. The district court’s rationale on this point is not transferrable here because the
postcard-only does not forbid the use of postage stamps. Second, the district court found that the
defendant’s postcard-only policy prevented the introduction of “notepad bindings [that] have
been hollowed to conceal contraband[.]” Id. at 1153. In this case, however, Defendants have not
pressed the same argument, nor is there any evidence that contraband has ever been introduced
into the Jail in notepad bindings. Even if the evidence here had shown that notepad bindings
presented a risk of contraband, the Jail could prohibit the mailing of notepads to inmates or
confiscate notepads when opening envelopes and inspecting their contents. Banning inmates
from receiving all letters because notepad bindings may conceal contraband is an exaggerated
response to this security concern. In light of these considerations, the Court declines to follow
Covell.
In Althouse, an unincarcerated citizen proceeding pro se challenged the Palm Beach
County Sheriff’s Office’s (“PBCSO”) postcard-only policy. The district court applied the Turner

Page 29 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 30 of 46

Page ID#: 4559

test and granted summary judgment in favor of the PBCSO. 2013 WL 536072, *3-6. The court
concluded that the PBCSO’s postcard-only policy “logically advances the goals of institutional
security and safety, and it is not an exaggerated response to those objectives.” Id. at *6.
The Court declines to follow Althouse. The evidence in this case leads this Court to reach
different conclusions than the Althouse court regarding the first and third Turner factors.
Concerning the first Turner factor, the Althouse court found that “[s]ealed envelopes provide a
greater opportunity for the introduction of drugs and weapons into jail facilities than postcards
because envelopes can contain multiple pages of paper with folds and creases that lend
themselves to smuggling contraband.” Id. at *5. Evidence in this case, however, establishes that
opening and inspecting letters, as the Jail did before adopting the postcard-only policy,
effectively prevented the introduction of contraband into the Jail. Evidence also established that
the Jail did not have an inmate mail security problem before adopting the postcard-only policy.
Thus, in this case, the postcard-only policy does not bear a rational relationship to enhanced
security.
With respect to the third Turner factor, the Althouse court noted that the PBCSO’s
postcard-only policy “gives the jail security staff more time to deal with prison security
assignments because they can spend less time screening envelopes for contraband.” Id. The
evidence here, however, establishes that the Jail’s postcard-only policy could achieve only de
minimis savings in time.8 Thus, in this case, the postcard-only policy does not afford Jail staff a
meaningful amount of additional time to deal with other security assignments.

8

The difference in time savings may be due in part to the substantial difference in size
between the PBCSO and the CCSO. The PBCSO incarcerates approximately 3,000 inmates,
more than 23 times the population of the Jail in May 2012. Id. at *1. On a per inmate basis,
however, there may not be a material difference. That issue has not been developed either in this
Page 30 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 31 of 46

Page ID#: 4560

The Court concludes, therefore, that Defendants’ postcard-only policy is not reasonably
related to legitimate penological objectives. The evidence adduced at trial failed to establish that
the Jail had experienced any problems with contraband entering the Jail through the mail. Even if
the Jail had experienced problems with correspondents sending contraband through the mail, no
evidence showed that opening envelopes and inspecting their contents was an ineffective or
inefficient method of intercepting contraband. As the Court noted in its preliminary injunction
opinion, the potential dangers posed by contraband within the Jail are undeniably serious. See
Florence v. Bd. of Chosen Freeholders, 132 S.Ct. 1510, 1518–20 (2012). Nonetheless, jail “walls
do not form a barrier separating . . . inmates from the protections of the Constitution.” Turner,
482 U.S. at 84.
The postcard-only policy blocks one narrow avenue for the introduction of contraband—
within envelopes—at too great an expense to the First Amendment rights of inmates and their
correspondents. PLN has thus proven by a preponderance of evidence that Defendants violated
its First Amendment rights, as well as the First Amendment rights of inmates and their
correspondents.
2.

Prohibition on Magazines

Defendants concede that inmates have a First Amendment right to receive magazines.9
Defendants also concede that, in practice, they failed to deliver magazines in the Jail. Defendants
have argued, however, that they did not have a “policy” prohibiting magazines in the Jail. They

case or in Althouse. Also, the plaintiff in Althouse was pro se any may not have fully explored
the PBCSO’s claimed time savings.
9

In his opening statement, counsel for Defendants stated that “the County, the Sheriff’s
Office was violating the Constitution and was doing so repeatedly with not accepting
magazines. . . . We don’t dispute that. We have never disputed that. We have admitted that.” 2-52013 Tr. at 33
Page 31 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 32 of 46

Page ID#: 4561

point out that the IMPs have consistently stated that inmates may receive magazines. PLN
argues, however, that Defendants did have a policy of prohibiting magazines because
“Defendants told staff, prisoners, and the public that it banned magazines, and few, if any, of
Defendants’ agents and staff were aware of the document titled ‘Inmate Mail Policy’ that said
otherwise.” Pl.’s Post-Trial Br. at 8.
Whether Defendants had a policy prohibiting magazines or whether Jail staff simply
failed to deliver magazines in practice is important in establishing Defendants’ liability under 42
U.S.C. § 1983. A municipality, such as Columbia County, the CCSO, and Sheriff Dickerson in
his official capacity, “may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.”10 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Rather, to
establish liability under § 1983 against a municipal defendant, a plaintiff must “identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cnty. Comm’rs v.
Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 694). “Monell’s ‘policy or custom’
requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or
prospective.” Los Angeles Cnty. v. Humphries, 131 S. Ct. 447, 453-54 (2010).
The Court concludes that Defendants had a policy of prohibiting magazines. Although
the IMPs permitted magazines, the inmate manuals stated that magazines were not permitted in
the Jail. Jail staff relied on the inmate manuals, rather than the IMPs, to determine whether to
permit inmates to receive magazines. Thus, the IMPs did not set the Defendants’ policy with
respect to magazines. See Ware v. Jackson Cnty., 150 F.3d 873, 882 (8th Cir. 1998) (“[T]he
existence of written policies of a defendant are of no moment in the face of evidence that such
policies are neither followed nor enforced.”).
10

An “official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985).
Page 32 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 33 of 46

Page ID#: 4562

Defendants also had a “custom” of prohibiting magazines. Municipal defendants may be
liable under § 1983 even in the absence of a formal policy permitting the challenged conduct
where the plaintiff can “show a longstanding practice or custom which constitutes the standard
operating procedure of the local government entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th
Cir. 1996) (internal quotations marks and citation omitted). As described in the Findings of Fact,
several CCSO staff testified that they believed and understood that magazines were not permitted
in the Jail. Commander Carpenter only once observed a magazine arrive by mail for an inmate,
and the Jail staff rejected it. The CCSO’s website expressly stated that magazines were not
permitted in the Jail. Inmates were advised, both in a memorandum prepared by Sergeant
Cutright, and in response to individual requests, that magazines were not permitted. The
evidence is overwhelming that the Jail had a custom of prohibiting magazines. The Court
concludes, therefore, that because Columbia County, the CCSO, and Sheriff Dickerson in his
official capacity had a policy or custom of prohibiting inmates from receiving magazines, those
Defendants are liable under § 1983 for violations of inmates’ First Amendment right to receive
magazines. As noted above, Defendants have stipulated that they rejected numerous issues of
PLN’s journals. PLN has, therefore, proven by a preponderance of evidence that Defendants
violated its First Amendment rights.
3.

Notice and appeal policy

Inmates have a “Fourteenth Amendment due process liberty interest in receiving notice
that [their] incoming mail is being withheld by prison authorities.” Frost, 197 F.3d at 353. The
Ninth Circuit has not addressed what specific procedural due process safeguards a correctional
institution must provide. In Martinez, however, the Supreme Court affirmed a district court order
that “required that an inmate be notified of the rejection of a letter written by or addressed to

Page 33 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 34 of 46

Page ID#: 4563

him, that the author of that letter be given a reasonable opportunity to protest that decision, and
that complaints be referred to a prison official other than the person who originally disapproved
the correspondence.” 416 U.S. at 418-19. Although the Martinez Court did not express an
opinion as to whether the district court’s order represented the minimum due process owed, the
Court concludes that those protections represent the constitutionally required minimum degree of
procedural due process. Martin v. Kelley, 803 F.2d 236, 243-45 (6th Cir. 1986) (holding that due
process safeguards described in Martinez are the minimum owed).
Defendants concede that inmates and their correspondents have a constitutional right to
due process and that Defendants failed to satisfy that right. Opening Statement at 35; Defs.’ Trial
Br. at 4; Dkt. 203. Even so, Defendants have not unequivocally admitted that their IMPs were
constitutionally deficient with respect to due process. Rather, they have admitted only that the
Jail failed to afford inmates and their correspondents procedural due process in practice. Id. As
discussed above, whether Defendants maintained an unconstitutional policy or custom or
whether, instead, Jail staff failed to afford procedural due process safeguards in practice is
important in determining whether Columbia County, the Columbia County Sheriff’s Office, and
Sheriff Dickerson in official capacity may be held liable under §1983. Monell, 436 U.S. at 694;
Humphries, 131 S. Ct. at 453-54.
The Court concludes that the IMP in effect at the time PLN filed this action, the
October 2011 IMP, failed to provide a constitutionally adequate minimum degree of due process.
As described in the Findings of Fact, the October 2011 IMP provided that inmates should receive
notice when the Jail rejected a piece of incoming mail. Ex. 113. That IMP also provided that the
inmate must be told the reason why the mail was rejected and be given an opportunity to appeal
the rejection to the Jail commander. Id. Despite those protections, however, the October 2011

Page 34 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 35 of 46

Page ID#: 4564

IMP was constitutionally deficient in two areas. First, it failed to provide that inmates’
correspondents be given notice and an opportunity to appeal the Jail’s decision to reject
incoming mail. Second, it did not provide that inmates receive notice and an opportunity to
appeal when the Jail rejected their outgoing mail.
In addition, the Court concludes that Defendants had a custom of failing to provide notice
and an opportunity to appeal, even when the Jail’s IMPs provided that such notice was required.
Defendants stipulated that they “did not provide . . . the prison-addressees due process notice or
an opportunity to appeal the censorship decisions when the Jail censored” PLN’s mail. Dkt. 203.
Defendants also stipulated that they “did not provide . . . the prisoner-addressees due process
notice or an opportunity to appeal the censorship decisions when the Jail censored” mail that
Ms. Lennox sent to inmates. Id. CCSO staff admitted that the Jail rarely provided inmates with
notice. Cutright Test. at 61, 64-66. This evidence establishes that the Jail had a “longstanding
practice or custom” that constituted its “standard operating procedure.” The Court concludes that
Defendants had both a policy and custom of failing to afford constitutionally sufficient due
process. PLN thus has proven by a preponderance of evidence that Defendants violated its
Fourteenth Amendment rights, as well as the Fourteenth Amendment rights of inmates and their
correspondents.
C.

Permanent Injunction
To obtain a permanent injunction, a “plaintiff must demonstrate: (1) that it has suffered

an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547

Page 35 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 36 of 46

Page ID#: 4565

U.S. 388, 391 (2006). “The decision to grant or deny permanent injunctive relief is an act of
equitable discretion by the district court[.]” Id. Where, as here, a plaintiff seeks an injunction
against a state or local government agency, “federal courts must be constantly mindful of the
special delicacy of the adjustment to be preserved between federal equitable power and State
administration of its own law.” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (internal quotation
marks and citation omitted).
1.

Postcard-Only Policy
a.

Irreparable injury

PLN has demonstrated irreparable harm because the “loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,
427 U.S. 347, 373 (1976); see also Assoc. Gen. Contractors of Cal., Inc. v. Coal. for Econ.
Equity, 950 F.2d 1401, 1412 (9th Cir. 1991) (“We have stated that an alleged constitutional
infringement will often alone constitute irreparable harm.” (internal quotation marks, citation,
and alterations omitted)).
b.

Inadequacy of damages

In cases, like this one, that involve constitutional violations, this factor merges with the
first factor. See Nelson v. Nat'l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir. 2008)
(“Unlike monetary injuries, constitutional violations cannot be adequately remedied through
damages and therefore generally constitute irreparable harm.”), rev’d and remanded on other
grounds, 131 S. Ct. 746 (2011). Because PLN has shown that Defendants violated the First
Amendment, and because the loss of First Amendment freedoms constitutes irreparable harm,
PLN has demonstrated that monetary damages are inadequate.

Page 36 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

c.

Document 214

Filed 04/24/13

Page 37 of 46

Page ID#: 4566

Balance of equities

The third factor requires the court to balance the equities. “In assessing whether the
plaintiffs have met this burden, the district court has a duty to balance the interests of all parties
and weigh the damage to each.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009)
(internal quotation marks, citation, and alteration omitted). PLN has established that the Jail’s
postcard-only policy burdens its First Amendment rights, as well as the First Amendment rights
of inmates and their correspondents. Defendants face the possibility of spending a minimal
amount of additional time each day opening envelopes and inspecting their contents. The
constitutional hardship is far greater than the insignificant impact on Defendants’ time and
resources.
During trial, Sheriff Dickerson testified that he would not re-adopt the postcard-only
policy if the Court did not issue a permanent injunction but merely declared the policy
unconstitutional. Dickerson Test. at 132. Thus, the Court must consider whether injunctive relief
is needed beyond declaratory relief. The party seeking a permanent injunction “must satisfy the
court that relief is needed. The necessary determination is that there exists some cognizable
danger of recurrent violation.” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). The
Court takes the Sheriff at his word that he would not re-adopt a postcard-only policy if the Court
issues a declaratory judgment and does not order a permanent injunction. Even so, however, the
Court still concludes that the balance of equities favors a permanent injunction enjoining the
postcard-only policy. The sheriff’s office is an elected position and a sheriff does not have the
authority to bind his or her successor. Moreover, Defendants did not voluntarily and promptly
amend their IMP to remove the postcard-only policy after PLN filed this action. Rather,
Defendants retained the postcard-only policy until the Court issued its preliminary injunction. In

Page 37 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 38 of 46

Page ID#: 4567

addition, Defendants have never admitted that the postcard-only policy is unconstitutional. In
light of these considerations, the Court concludes that the balance of equities tips in favor of
granting a permanent injunction.
d.

Public interest

“The public interest inquiry primarily addresses [the] impact on non-parties rather than
parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir.2002). “When the
reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the
public interest will be at most a neutral factor in the analysis rather than one that favors granting
or denying the preliminary injunction.” Stormans, Inc., 586 F.3d at 1138-39 (internal quotation
marks, citation, and alteration omitted). Here, however, the public interest favors entering a
permanent injunction. A permanent injunction enjoining Defendants from enforcing a postcardonly policy will permit inmates and non-party members of the public to more easily and
effectively communicate with each other by mail. The parties have not suggested that a
permanent injunction will affect any other non-parties.
e.

Scope of injunction

After considering each of the four factors set forth by the Supreme Court in eBay, the
Court concludes that a permanent injunction enjoining the postcard-only policy is warranted.
Before issuing a permanent injunction, however, the Court must consider the Prison Litigation
Reform Act (“PLRA”), 18 U.S.C. § 3626. The PLRA provides:
Prospective relief in any civil action with respect to prison conditions shall extend no
further than necessary to correct the violation of the Federal right of a particular plaintiff
or plaintiffs. The court shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right. The court shall give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the relief.

Page 38 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 39 of 46

Page ID#: 4568

18 U.S.C. § 3626(a). An “injunction employs the least intrusive means necessary when it heels
close to the identified violation, and is not overly intrusive and unworkable and would not
require for its enforcement the continuous supervision by the federal court over the conduct of
state officers.”11 Clement v. Cal. Dep’t of Corr., 364 F.3d 1148, 1153 (9th Cir. 2004) (internal
quotation marks, citations, and alterations omitted).
As described in the Conclusion below, in addition to providing declaratory relief, the
Court will issue a permanent injunction enjoining Defendants from restricting all incoming and
outgoing inmate personal mail to postcards only. This injunction applies only to the Columbia
County Jail and to no other correctional institution. The injunction will address only the
postcard-only inmate mail policy and does not intrude on any other aspect of the Jail’s
administration. The injunction will not provide for ongoing Court supervision and will not
require Defendants to submit compliance reports, institute trainings, or submit revised policies to
the Court for review. The Court finds, therefore, that such an injunction would be narrowly
drawn, extend no further than necessary to correct the First Amendment violations, and is the
least intrusive means necessary to correct the violation of the Federal right. See id. (upholding
district court injunction where injunction did not require court supervision and was only broad
enough to enjoin the unconstitutional policy).

11

In its Suggested Findings of Fact and Conclusions of Law, PLN contends that the
PLRA does not apply to this case because the PLRA only applies to actions brought by
prisoners. Dkt. 138 at 35. PLN is incorrect and the cases PLN cites for its contention do not so
hold. Certain sections of the PLRA apply only to suits by prisoners, such as, for example, § 803,
42 U.S.C.A. § 1997e, which requires prisoners to exhaust administrative remedies before
bringing actions under 42 U.S.C. § 1983. Section 802 of the PLRA, 18 U.S.C. § 3626, quoted
above, however, applies to “any civil action with respect to prison conditions.” (Emphasis
added.) No provisions in § 802 limit its application to suits brought by prisoners.
Page 39 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

2.

Document 214

Filed 04/24/13

Page 40 of 46

Page ID#: 4569

Magazines
a.

Irreparable injury

As noted above, the “loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Elrod, 427 U.S. at 373. Consequently, PLN
has satisfied the first factor of the eBay test.
b.

Inadequacy of damages

PLN has also satisfied the second factor of the eBay test because, as explained above,
“constitutional violations cannot be adequately remedied through damages[.]” Nelson, 530 F.3d
at 882.
c.

Balance of Equities

As explained above, in assessing this factor, the Court “has a duty to balance the interests
of all parties and weigh the damage to each.” Stormans, Inc., 586 F.3d at 1138 (internal
quotation marks, citation, and alteration omitted). A permanent injunction requiring Defendants
to deliver magazines to inmates would protect the First Amendment rights of both inmates and
publishers. Defendants have not stated that a permanent injunction would tax their resources.
Defendants argue, however, that the equities do not favor an injunction for a different reason. An
injunction is unnecessary, they contend, because “the [J]ail voluntarily implemented a practice to
ensure that the written policy permitting magazines was followed.” Defs.’ Post-Trial Br. at 13.
The “court’s power to grant injunctive relief survives discontinuance of the illegal
conduct.” W. T. Grant Co., 345 U.S. at 633. Nonetheless, as noted above, “the moving party
must satisfy the court that relief is needed.” Id. “In determining whether to impose an injunction
where a defendant has ceased the offending conduct, courts may consider ‘the bona fides of the
defendant’s expressed intent to comply’ with the law, ‘the effectiveness of the discontinuance,’

Page 40 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 41 of 46

Page ID#: 4570

and ‘the character of the past violations.’”12 E.E.O.C. v. KarenKim, Inc., 698 F.3d 92, 100 (2d
Cir. 2012) (quoting W. T. Grant, 345 U.S. at 633; internal alterations omitted).
These considerations weigh against issuing an injunction. It is true that for many years
Defendants unconstitutionally prohibited magazines in the Jail. Even so, Defendants have
admitted that inmates have a First Amendment right to receive magazines and that Defendants
violated that right repeatedly by repeatedly rejecting issues of PLN’s journal. Sheriff Dickerson
credibly testified that he did not know that the First Amendment required the Jail to allow
inmates to receive magazines when he took office in 2009. Dickerson Test. at 237. The Sheriff
also credibly testified that had he known, he would have ensured that inmates could receive
magazines. Id. The IMPs have consistently provided that inmates may receive magazines.
Defendants have informed CCSO staff that they should rely on the IMPs when processing mail
and have held two training sessions in which the most recent IMPs were read to CCSO staff.
Rigdon Test. at 197-98. The Court concludes that Defendants have made a genuine and credible
effort to correct their unconstitutional prohibition on magazines. The balance of equities thus tips
against issuing a permanent injunction with regard to magazines.
d.

Public Interest

As noted above, the “public interest inquiry primarily addresses [the] impact on nonparties rather than parties.” Sammartano, 303 F.3d at 974. A permanent injunction would benefit

12

The question of whether a defendant’s voluntary discontinuance of illegal conduct tips
the balance of equities against issuance of a permanent injunction bears many similarities to the
mootness question, discussed above. Despite the similarities, however, “the two inquiries are
strikingly different.” Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 n.10 (11th
Cir. 2007). A “defendant seeking dismissal on mootness grounds under the doctrine of voluntary
cessation bears the extremely heavy burden of showing that it is absolutely clear that he will not
revert to his old ways. But whether a permanent injunction is appropriate . . . turns on whether
the plaintiff can establish by a preponderance of the evidence that this form of equitable relief is
necessary.” Id.
Page 41 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 42 of 46

Page ID#: 4571

inmates and magazine publishers by ensuring that inmates receive the magazines to which they
subscribe. Accordingly, this factor favors an injunction.
On the whole, however, the Court concludes that a permanent injunction is not warranted
with respect to Defendants’ unconstitutional policy or custom prohibiting inmates from receiving
magazines. Defendants have expressed a credible willingness to comply with the law. Where, as
here, “constitutional violations are found, but state officials have shown their readiness to meet
constitutional requirements, the court should limit its initial response to a grant of declaratory
relief.” Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985).
3.

Notice and appeal provisions
a.

Irreparable harm

Unlike with PLN’s First Amendment claim, it is not clear that PLN has suffered
irreparable harm merely because Defendants have failed to provide the required procedural due
process. There is no question that the denial of First Amendment rights constitutes irreparable
harm. Elrod, 427 U.S. at 373. Moreover, under Ninth Circuit precedent, an “alleged
constitutional infringement will often alone constitute irreparable harm.” Goldie’s Bookstore,
Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) (citing Wright & Miller, 11 FEDERAL
PRACTICE AND PROCEDURE § 2948 at 440 (1973)). The Ninth Circuit has not held, however, that
irreparable harm inevitably flows from deprivations of procedural due process. Other circuits
have held that the denial of due process does not create a presumption of irreparable harm. See,
e.g., Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 81 (1st Cir. 2009) (denial of procedural due
process, without more, does not automatically trigger a finding of irreparable harm); Siegel v.
LePore, 234 F.3d 1163, 1177-78 (11th Cir. 2000) (presumption of irreparable harm only
applicable to invasion of privacy and violation of First Amendment rights).

Page 42 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 43 of 46

Page ID#: 4572

The Court need not resolve whether Defendants’ unconstitutional deprivation of PLN’s
right to procedural due process constitutes irreparable harm. As discussed below, the Court finds
that the balance of equities tips in favor of not issuing a permanent injunction on this issue. The
Court, therefore, leaves this question for another day or another court.
b.

Inadequacy of damages

Because the Court finds that the balance of equities strongly favors not issuing a
permanent injunction, the Court declines to address this factor.
c.

Balance of Equities

Defendants’ most recent IMP, the July 2012 IMP, provides that CCSO staff must provide
notice and an opportunity to appeal to both the sender and the recipient of incoming and
outgoing mail when that mail is censored or rejected. Under the standard described in Martinez
and adopted above, this is constitutionally sufficient procedural due process. Accordingly, the
Court must determine whether the equities favor a permanent injunction even though Defendants
have voluntarily implemented a constitutional policy. As discussed above, three factors are
relevant in “determining whether to impose an injunction where a defendant has ceased the
offending conduct.” KarenKim, 698 F.3d at 100. Those are (1) the bona fides of the defendant’s
expressed intent to comply with the law; (2) the effectiveness of the discontinuance; (3) and the
character of the past violations. Id.
These factors tip the balance of the equities against issuance of a permanent injunction on
this issue. Defendants promptly admitted that they repeatedly violated the Fourteenth
Amendment. Furthermore, Sheriff Dickerson testified credibly that the Jail would not continue to
violate the Constitution. PLN has not presented any evidence suggesting that the Jail has
continued to violate its or anyone else’s procedural due process rights since Defendants adopted

Page 43 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 44 of 46

Page ID#: 4573

the July 2012 IMP. The Court is cognizant that the Jail consistently failed to afford procedural
due process before PLN filed this action. Nonetheless, over the last year, Defendants have
displayed a genuine determination to correct their deficient notice and appeal policies. Thus, the
balance of equities counsels against issuing a permanent injunction.
d.

Public Interest

Finally, the Court must consider the public interest. The “public interest inquiry primarily
addresses [the] impact on non-parties rather than parties.” Sammartano, 303 F.3d at 974. A
permanent injunction requiring Defendants to provide constitutionally sufficient procedural due
process to inmates and their correspondents would ensure that inmates’ correspondents, who are
not party to this case, are guaranteed their constitutional rights. Consequently, the inmates and
their correspondents would benefit. This factor favors an injunction.
On the whole, however, a permanent injunction is not warranted. Defendants have
voluntarily amended their IMP to provide the required level of procedural safeguards. As stated
above, where “constitutional violations are found, but state officials have shown their readiness
to meet constitutional requirements, the court should limit its initial response to a grant of
declaratory relief.” Morrow, 768 F.2d at 627.
D.

Declaratory Relief
The Declaratory Judgment Act, 28 U.S.C. § 2201, allows individuals to seek a

declaration of the constitutionality of the disputed governmental action. See Duke Power Co. v.
Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 71 n.15 (1978). To issue a declaration, the Court
must address two conditions. “First, the court must inquire whether there is a case of actual
controversy within its jurisdiction.” Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir.

Page 44 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 45 of 46

Page ID#: 4574

1994). Second, “the court must decide whether to exercise that jurisdiction. The statute gives
discretion to courts in deciding whether to entertain declaratory judgments[.]” Id. at 143-44.
The Court concludes that declaratory relief is appropriate for both PLN’s free speech
claims (concerning both the postcard-only policy and the magazine policy) and PLN’s due
process claim (concerning the notice and appeal policy). First, for the reasons discussed above,
the Court concludes that PLN has standing for both claims and neither claim is moot. There is,
therefore, an actual controversy.
Second, exercise of the Court’s discretion is appropriate. The Court “may consider
equitable, prudential, and policy arguments when deciding whether” to exercise its discretion to
issue a declaration. Veoh Networks, Inc. v. UMG Recordings, Inc., 522 F. Supp. 2d 1265, 1271
(S.D. Cal. 2007) (citing MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007)).
Equitable considerations weigh in favor of awarding declaratory relief. As described above,
Defendants’ postcard-only policy, magazine policy, and notice and appeal policy violated the
First and Fourteenth Amendments. Those policies resulted in numerous individual constitutional
violations. Declaratory relief will, therefore, serve to vindicate the rights of PLN and the rights of
inmates and their unincarcerated correspondents. Prudential considerations also favor declaratory
relief. Declaratory relief will clarify the degree of constitutional protection that must be afforded
to inmate mail and, accordingly, will provide guideposts to Defendants in the event they wish
further to amend their IMP. Accordingly, the Court will enter declaratory relief.
CONCLUSION
The Court will issue a separate Order that PERMANENTLY ENJOINS Defendants
from restricting all incoming and outgoing inmate personal mail to postcards only. The Order
will provide that Defendants shall not refuse to deliver or process personal inmate mail solely on

Page 45 – FINDINGS OF FACT AND CONCLUSIONS OF LAW

Case 3:12-cv-00071-SI

Document 214

Filed 04/24/13

Page 46 of 46

Page ID#: 4575

the grounds that it is not on a postcard. In the Order, the Court will also DECLARE that inmates
have a First Amendment right to receive magazines and that it would be unconstitutional for
Defendants to refuse to deliver magazines to inmates solely because they are magazines. The
Court will also DECLARE that inmates and their unincarcerated correspondents have a
Fourteenth Amendment right to procedural due process when Defendants reject their mail and
that, at a minimum: (1) an inmate must be notified when Defendants reject correspondence
written by or addressed to the inmate; (2) senders of rejected correspondence must be given a
reasonable opportunity to appeal the rejection; and (3) appeals must be referred to a prison
official other than the person who originally rejected the correspondence. Within 28 days from
the date of these Findings of Fact and Conclusions of Law, the parties shall inform the Court
whether there is any need for the Court to proceed further with regard to Plaintiff’s claim for
money damages. If there is no such need, the parties shall submit to the Court by that deadline,
either jointly or separately, a proposed form of Final Judgment that contains proposed permanent
injunctive and declaratory relief consistent with these Findings and Conclusions.
IT IS SO ORDERED.
Dated the 24th day of April, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

Page 46 – FINDINGS OF FACT AND CONCLUSIONS OF LAW



 

Prisoners Self Help Litigation Manual

 

Prisoner Education Guide side

 

Prisoners Self Help Litigation Manual