Human Rights Def. Ctr. v. Johnson Cnty.

507 F.Supp.3d 1277

HUMAN RIGHTS DEFENSE CENTER, Plaintiff,

v.JOHNSON COUNTY, KANSAS, BOARD OF COMMISSIONERS, et al., Defendants.

Case No. 2:20-cv-02447-HLT-KGG

United States District Court, D. Kansas.

Signed December 14, 2020

Bruce E. H. Johnson, Pro Hac Vice, Davis Wright Tremaine LLP, Seattle, WA, Daniel Marshall, Pro Hac Vice, Human Rights Defense Center, Lake Worth, FL, Maxwell E. Kautsch, Kautsch Law, LLC, Lawrence, KS, for Plaintiff.

Brett T. Runyon, Kirk Thomas Ridgway, Ferree, Bunn & Ridgway, Chartered, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

Plaintiff Human Rights Defense Center ("HRDC"), a publisher of publications aimed at prisoners, sues the Johnson County Board of Commissioners, Sheriff Calvin Hayden, and several unidentified individuals (collectively referred to here as "Johnson County") over the mail policy at Johnson County jail facilities. HRDC alleges the mail policy violates its rights to free speech and due process under the First and Fourteenth Amendments. Currently before the Court is HRDC's motion for a preliminary injunction (Doc. 5), in which it requests an injunction prohibiting Johnson County from censoring HRDC's mail and denying it due process. Because HRDC has not demonstrated a substantial likelihood of success, the Court denies the motion.

I. BACKGROUND¹

A. HRDC's Mission and Publications

HRDC is a non-profit organization dedicated to educating "incarcerated persons and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society." Doc. 6 at 1. To achieve this end, HRDC engages in advocacy and litigation, and publishes and distributes books, magazines, and other information. Id.

HRDC publishes two monthly magazines. Prison Legal News addresses matters affecting incarcerated individuals. The other, Criminal Legal News , focuses on court rulings and other criminal-justice news. Id. at 2. Both magazines are intended to provide prisoners with timely and in-depth information that could not be communicated to them otherwise. Id.

HRDC also publishes and distributes soft-cover books on subjects of interest to prisoners. Two of those books relevant to this case are Prisoners' Guerilla Handbook: A Guide to Correspondence Programs in the United States and Canada , which provides information about enrolling in higher education or vocational programs, and Protecting Your Health and Safety , which describes the rights, protections, and legal remedies available to prisoners. Id. at 2-3.

HRDC also sends brochure packets, subscription order forms, copies of judicial opinions, and letters to prisoners. Id. at 3. HRDC delivers these materials through the U.S. Postal Service. Each is addressed to a specific person and postage is fully paid. Id. Since 1990, HRDC has sent thousands of magazines and books through the mail, and has thousands of subscribers, including incarcerated individuals, attorneys, journalists, libraries, judges, and the general public. Id. It currently sends its publications to more than 3,000 correctional facilities across the United States. Id. at 4. Other than its mailed publications, there is no other feasible way for HRDC to communicate its message to prisoners. Id. at 9. HRDC frequently challenges mail policies at jails and prisons, and therefore has become very familiar with those policies and practices. Id.

B. Johnson County's Detention Facility Mail Policies

Johnson County operates the New Century Adult Detention Center in New Century, Kansas, and a central booking facility in Olathe, Kansas. Doc. 11 at 2. The facilities receive approximately seven to thirteen totes of mail each week. The totes are 13x18x12 inches. The exact number of individual mail items received is not tracked. Id. All inmate mail is first received and x-rayed at the county courthouse before it is processed and distributed. Id. The mail is processed by civilian staff who, among other duties, are trained as mail clerks. Each day, one staff member is assigned exclusively as the mail clerk for the day. On days with a large amount of mail, a second staff member will assist. When not working as mail clerks, staff members have other duties elsewhere in the facilities. Id.

A summary of rules, restrictions, and other information about mail sent to the facilities is posted on Johnson County's website. Id. at 3. Two policies are relevant here. Although it is not clear when these policies went into effect, the policies appear to have begun impacting HRDC in July 2020.

1. Sticker/Label Policy

The first policy at issue is the sticker/label policy. Johnson County's website reflects that non-privileged mail may be inspected for prohibited content or restricted materials and that no "plastic/wrappings, labels or stickers" are permitted on letters or postcards. Doc. 6 at 5.

The purpose of the sticker/label policy is to ensure that no contraband is smuggled into the facilities by a label or sticker, which has happened at other jail facilities. Doc. 11 at 4; see also Doc. 11-2. Stamps are the exception because they are necessary for mail delivery. Doc. 11 at 3. Stamps are cut off envelopes before mail is delivered to prisoners. Id. But removing other stickers or labels would take additional staff time and would also sometimes require the information from a removed label to be handwritten on the envelope by staff to ensure accurate delivery and tracking. Id. at 4.

If mail is rejected because of stickers or labels on the envelope, it is not opened and is returned via the U.S. Postal Service. Id. at 3. Inmates receive an electronic notice of rejected mail, and the sender is notified of a rejection under the sticker/label policy by a red stamp on the returned mail stating "No Labels, Stickers, Etc." Id. at 4.

2. Package Pre-Approval Policy

The second policy at issue is the package pre-approval policy. Johnson County's website states that packages will not be accepted without prior approval. Doc. 6 at 6. A package is any item requiring more postage than a first-class stamp. Id. Packages are generally a higher security concern because they are larger and have more places to hide contraband. Doc. 11 at 5. An inmate must seek pre-approval through an electronic kiosk system and must itemize all the package's contents. Id. An Inmate Services Supervisor can then approve the package. Id. Limiting packages to pre-approved items simplifies the mail clerk's job because it prevents problematic items from being sent in the first place and, upon arrival, the contents need only be verified and inspected. Id. Otherwise, the mail clerk will have to spend time reviewing and inspecting unsolicited items sent to inmates, which the recipient may not even want. Id.

When a package that has not been preapproved arrives, the mail clerk does not open the package. It is stamped "Return to Sender Unauthorized Package Reason: ____________" and returned to the sender via the U.S. Postal Service. The mail clerk sometimes writes "not approved" in the blank. Id.

Johnson County estimates that requiring staff to remove labels or stickers, or to inspect unapproved packages, would require an additional 40-60 staff hours a month. Id. at 7. Requiring mail clerks to generate a letter to the sender of each mail item rejected under the sticker/label policy or package pre-approval policy would require an additional 60-80 hours a month. Id. at 7-8. These procedures would cost Johnson County over $40,000 in additional salary each year. Id.

C. HRDC Mail Rejected by Johnson County

Since July 2020, Johnson County has rejected 58 items sent by HRDC:

• ten copies of Prison Legal News ;

• ten copies of Criminal Legal News ;

• ten copies of Protecting Your Health and Safety ;

• ten copies of Prisoners' Guerilla Handbook ;

• ten brochure packets;

• one court ruling;² and

• seven follow-up letters.

Doc. 6 at 6-7. These items were returned to HRDC via the U.S. Postal Service and were marked with one or more of the following stamps: "Refused," "Not Approved," "Return to Sender Unauthorized Package Reason: _______________," "Return to Sender Unauthorized Package Reason: Not Approved," "Return to Sender Unauthorized Package Does Not Comply With Facility Mail Policy," and "No Labels, Stickers, Etc." Id. at 7. HRDC was not given an opportunity to appeal these rejections. Id. It is unclear whether Johnson County has rejected any of HRDC's other mail, other than these 58 items.

The Johnson County official who oversees the mailroom has reviewed the materials submitted as exhibits to HRDC's preliminary-injunction motion and indicated that they were rejected because they violated either the sticker/label policy or the package pre-approval policy, based on the stamps on the returned mail. Doc. 11 at 7. Had the materials been pre-approved or not sent in packages, or not had stickers or labels on them, they would not have been rejected. Id.

Since at least September 24, 2020, HRDC has sent copies of Prison Legal News in a manner that complies with both the sticker/label policy and the package pre-approval policy. Some of the inmates who were sent copies have added it to their subscription list and have received their copies of Prison Legal News . Others have declined the subscription. Id. at 6-7.

D. Lawsuit and Preliminary-Injunction Motion

HRDC filed this lawsuit under 42 U.S.C. § 1983 alleging violation of its First Amendment right to free speech and communication, and violation of its Fourteenth Amendment right to due process. Doc. 1. It also filed a motion for preliminary injunction seeking an order prohibiting Johnson County from "(1) continuing to arbitrarily and illegally censor the Plaintiff's written materials sent via U.S. Mail to incarcerated persons at the Jail; and (2) continuing to deny Plaintiff its right to Due Process of the Law, by failing to provide HRDC with adequate notice of the reasons for rejecting its correspondence and a meaningful and expeditious opportunity to appeal any such...