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PLN's ADX Censorship Suit Partially Survives Motion to Dismiss

PLN's ADX Censorship Suit Partially
Survives Motion to Dismiss

by Bob Williams

On November 12, 2004, Colorado Federal District Court Judge Wiley Daniel dismissed all official capacity claims, one defendant, and one substantive claim in PLN's suit over ADX censorship of PLN. The court allowed PLN to proceed on one individual capacity claim against the remaining defendants.

In 2003 Prison Legal News (PLN) filed a Bivens suit against the former (Michael Pugh) and current (Robert Hood) wardens of the Administrative Maximum (ADX) facility in Florence, Colorado, and the current (Harley Lappin) and former (Kathleen Hawk Sawyer) directors of the Bureau of Prisoners (BOP), each in their official and individual capacities. The two claims raised were the unconstitutional censorship of ten monthly issues of PLN as (1) promoting violence and (2) being inmate to inmate" correspondence. Injunctive and declaratory relief as well as monetary damages were sought. [See: PLN, Feb. 2004, p. 15]

On March 15, 2004, the defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), claiming sovereign immunity, mootness, lack of personal participation, qualified immunity and statute of limitations.

Sovereign Immunity. Suing government officials in their official capacity is tantamount to suing the government. Finding that PLN cited no statutory provision that expressly creates a cause of action and that the federal government has not waived its sovereign immunity, the court dismissed all claims brought in the defendants' official capacity. PLN argued that sovereign immunity does not extend to officials who act beyond their authority in violation of the constitution. The court found this is a Bivens claim and not an official capacity claim.

Mootness. PLNs second substantive claim that issues of PLN were rejected as inmate to inmate" correspondence was held to be moot by the court. PLN's claim was based on ADX Institutional Supplement FLM 5265.11C which read in part:

Due to the possibility of unauthorized messages or information being passed, the following will be defined as inmate to inmate correspondence, thereby requiring advance approval: (1) Any article, publication, advertisement, etc., that contains specific information written by or about an inmate or inmates and their causes. (2) Any correspondence or publication from or to a third party that references a particular inmate or inmates. (3) Any photograph that contains an inmate or a group of inmates, regardless of the background setting or relationship of the subject to the intended receiver.

Effective June 20, 2003, ADX Institutional Supplement FLM 5265.11D was instituted with this objectionable paragraph" removed. PLN did not challenge mootness and the court found the change in language rendered all of claim two moot.

Personal Participation. Liability for damages under Bivens requires personal participation in any alleged unconstitutional conduct. While PLN did allege that defendant Lappin was responsible for overseeing all BOP institutions, including ADX, there was no allegation that defendant Lappin had any personal involvement in the application of the policy, to PLN. The court found at best PLN was alleging only Lappin's approval of the BOP-wide Program Statements (5266.09 and 5266.10) upon which some issues of PLN were censored. Since the Program Statements are being challenged as applied to PLN and not on their face, defendant Lappin had no personal involvement and was dismissed from the suit. The ADX is the only BOP facility that interprets its policy to ban PLN.

Qualified Immunity. Under the doctrine of qualified immunity, government defendants are immune from personal liability for damages if their actions do not violate clearly established statutory or constitutional right. The court applied the standard of whether a reasonable person would have known that his or her actions violated the statutory or constitutional rights at issue." Relying on two United States Supreme Court cases, Thornburgh v. Abbott, 109 S.Ct. 1874 (1989) (prison officials may refuse magazines based on a legitimate penological interest) and Turner v. Safley, 107 S.Ct. 2254 (1987) (broad restrictions on inmate to inmate correspondence approved), the court found a defendant could reasonably conclude that rejecting PLN articles at issue here would not amount to a violation of constitutional rights." As such, the remaining three defendants are entitled to qualified immunity from claims for damages only. As the defendants conceded, neither qualified immunity nor sovereign immunity precludes injunctive or declaratory relief. Though the defendants claimed the suit only involved the erroneous exercise of delegated powers, rather than an unconstitutional rule," the court found PLN's complaint was clear on this point and the defendants' argument unconvincing and dismissal of injunctive and declaratory claims improper.

Statute of Limitations. Section 1983 and Bivens claims are governed by Colorado's two-year residual statute of limitations found at § 13-80-102, C.R.S. The earliest action of PLN censorship identified in PLN's complaint was March 2001. The complaint was filed on December 10, 2003. While at first glance, it appears to be beyond the two-year limitation, PLN argued that the limitation period was tolled because of delayed notice from the BOP that some magazines were censored. The court found any dismissal on this issue premature and PLN entitled to an opportunity to discover evidence-that would allow it to establish a factual basis." Besides, the complaint was timely to all magazines censored from December 10 forward.

This suit may now move forward on the claim of ADX's unconstitutional censorship of PLN articles as constituting inmate correspondence." PLN is well represented in the case by Mickey Gendler of the Seattle law firm Gendler and Mann and Bill Trine of the Boulder law firm of Trine and Metcalf. See: Prison Legal News v. Hood, US DC, D CO, Case No. 03-D-2516(PAC).

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Related legal case

Prison Legal News v. Hood