by Matt Clarke
On August 14, 2017, a Colorado federal district court vacated its prior order granting a motion to dismiss filed by the federal Bureau of Prisons (BOP), and held that a lawsuit filed by Prison Legal News challenging censorship at the supermax Administrative Maximum Facility (ADX) in Florence, Colorado was not mooted by changes in the prison’s policies and practices.
ADX officials had rejected eleven issues of PLN between January 2010 and April 2014, apparently on the sole grounds that at least one article in each issue mentioned the name of an ADX prisoner or BOP employee. After unsuccessfully attempting to resolve the issue informally, PLN filed suit in 2015 alleging the BOP had violated its due process rights by, among other things, failing to provide timely and adequate notice of or specific reasons for each rejection. The BOP moved to dismiss.
The magistrate judge filed a report and recommendation (R&R), recommending that the motion be denied. The BOP filed objections. Before PLN could respond to the objections, however, the district court overruled the R&R and dismissed the case.
PLN filed a motion to vacate the court’s order and judgment, which was granted. In doing so, the district court noted that it had issued its order before PLN had responded to the BOP’s objections to the R&R and within the time period in which PLN was allowed to do so.
The BOP contended that the suit was moot because no issue of PLN had been rejected in 2015 or 2016, and prisoners had subsequently been allowed to receive the eleven rejected issues. It alleged that its policies and practices had been changed so that it no longer rejected publications simply because they mentioned the name of an ADX prisoner or BOP staff member.
The district court noted that a new policy supplement regarding incoming publications was issued on February 2, 2016. However, it found the supplement was essentially the same as the previous regulations and only changed the levels of review afforded once a publication was rejected. The policy continued to allow the rejection of a publication after the warden makes an individualized assessment of how it might affect ADX security, changing nothing about how incoming publications will be reviewed.
The ADX’s executive assistant submitted a declaration that the “name-alone” policy for censoring publications had been eliminated. However, the remainder of the declaration revealed that “nothing has changed under ADX’s new policy,” and the lawsuit was not based on the “name-alone” policy but raised due process violations. Neither the policy supplement nor the declaration had provisions requiring timely notification of or a specific reason for rejecting publications. Thus, the changes did not render PLN’s claims moot.
The district court also found evidence that the alleged changes in ADX practices were a ploy to avoid the court’s jurisdiction; further, they could be changed back at any time should the lawsuit be dismissed for mootness. The ADX had been given multiple opportunities to reform its practices prior to the suit being filed, which was the catalyst for the policy change. Thus, the BOP was not entitled to a presumption of good faith that would make it unlikely for future “name-only” publication rejections to occur and render the case moot.
Accordingly, the district court vacated its prior order and judgment, denied the BOP’s motion to dismiss, rejected the BOP’s objections to the R&R, and adopted the magistrate’s report and recommendation consistent with the court’s order. The case remains pending. See: Prison Legal News v. Federal Bureau of Prisons, U.S.D.C. (D. Col.), Case No. 1:15-cv-02184-RM-STV.
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Related legal case
Prison Legal News v. Federal Bureau of Prisons
|Cite||U.S.D.C. (D. Col.), Case No. 1:15-cv-02184-RM-STV|