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Tenth Circuit Holds BOP’s Change in Policy and Delivery of Censored Issues at ADX Super Max Prison Moots PLN’s Lawsuit

On December 13, 2019, the Tenth Circuit Court of Appeals upheld a district court’s dismissal of a federal lawsuit brought by PLN against the federal Bureau of Prisons (BOP) over censorship of the magazine at the United States Penitentiary, Administrative Maximum Facility (ADX) in Florence, Colorado.

BOP regulations permitted ADX prisoners to receive publications without prior approval unless they were prohibited by statute or “detrimental to the [facility’s] good order, or discipline,” as determined by the warden. (28 U.S.C. § 540.70-.72.) The regulations required the warden to notify the prisoner and the publisher of the rejection.

Between January 2010 and April 2014, ADX staff rejected 11 issues of PLN, which contained the name of an ADX or BOP prisoner or staff member. PLN filed a federal civil rights lawsuit alleging the rejection for “name-alone content,” as applied to PLN, violated its First and Fifth Amendment rights and the federal Administrative Procedures Act (APA). The lawsuit requested only declaratory and injunctive relief.

In February 2016, the ADX changed its institutional supplement, requiring additional personnel — including the legal department — to review incoming publications. In March 2017, then-Warden Jack Fox examined the rejected PLN publications with the legal department. He concluded that the name-alone content rejections were improper. On August 14, 2017, the district court denied the BOP’s motion for summary judgment for mootness based upon the ADX supplement and warden’s decision to deliver the censored PLN publications.

On December 21, 2017, the ADX issued an updated institutional supplement specifically stating that a publication “may not be rejected solely because it discusses an ADX or [BOP] inmate, or BOP staff member” and requiring that incoming publications be given “an individualized assessment.” The supplement also required prompt notification to the publisher of the rejection with a detailed explanation of the reason for the rejection.

The BOP filed a motion for summary judgment alleging the lawsuit was mooted by the supplement coupled with a declaration by the warden agreeing with Fox that the previous rejections had been improper. Over PLN’s opposition, the court granted the BOP summary judgment and dismissed the lawsuit as moot.

PLN appealed with the assistance of D.C. attorneys Matthews Shapanka, Peter Swanson, Terra Fulham, and Alyson Sandler at the Washington, D.C. firm of Covington Burling and Denver attorney Steven Zansberg at Balalrd Spahr and HRDC staff attorneys Sabarish Neelakanta and Masimba Mutamba. The Tenth Circuit held that PLN’s claims became moot when the ADX “took intervening administrative actions.”

The court noted that voluntary cessation of a challenged policy or practice does not necessarily result in mootness, but courts afford “more solicitude” to government officials and “government self-correction provides a secure foundation for mootness so long as it seems genuine.”

PLN questioned the sincerity of the changes. PLN Editor Paul Wright noted that PLN had previously challenged the BOP’s censorship of its magazines until a last-minute change of policy mooted that lawsuit. Thus, this was the “second time they claimed the suit was moot by capitulating at the last minute and delivering the censored publications years after they were published.”

Despite the ruling, one should remember that it was prompted by PLN forcing the BOP once again to change its censorship policies—a victory by any reasonable measure. Thanks to the efforts of our legal team, ADX prisoners can once again receive and read PLN. See: Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868 (10th Cir. 2019). 

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Related legal case

Prison Legal News v. Federal Bureau of Prisons,