Jordan v. Pugh

• Decision Date: 09 August 2007
• Docket Number: Civil Action No. 02-cv-01239-MSK-PAC.
• Citation: 504 F.Supp.2d 1109
• Parties: Mark JORDAN, Plaintiff, v. Michael V. PUGH, J. York, R.E. Derr, B. Sellers, and Stanley Rowlett, Defendants.
• Court: U.S. District Court — District of Colorado

504 F.Supp.2d 1109

Mark JORDAN, Plaintiff, v. Michael V. PUGH, J. York, R.E. Derr, B. Sellers, and Stanley Rowlett, Defendants.

Civil Action No. 02-cv-01239-MSK-PAC.

United States District Court, D. Colorado.

August 9, 2007.

Laura Lee Rovner, Nantiya Ruan, Student Law Office, Denver, CO, for Plaintiff.

Michael Conrad Johnson, Kevin Thomas Traskos, Marcy Elizabeth Cook, U.S. Attorney's Office, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

MARCIA S. KRIEGER, District Judge.

The Plaintiff, Mark Jordan, is an inmate in the custody of the Federal Bureau, of Prisons, Administrative Maximum Unit ("ADX"), in Florence, Colorado. In this lawsuit, Mr. Jordan challenges the constitutionality, of 28 C.F.R. § 540.20(b), a prison regulation which provides that an "inmate may not act as reporter or publish under a byline." He claims that this regulation is unconstitutional in violation of the First Amendment to the United States Constitution.

All Defendants are ADX employees named in their official capacities. Consequently, the action is deemed to be one against the Bureau of Prisons ("the BOP"). See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

Based upon the evidence presented at trial,¹ the arguments of counsel, and the facts stipulated to by the parties (# 324), the Court finds and concludes as follows.

I. Issues Presented

There are two issues presented. The first issue is whether Mr. Jordan has standing to challenge the constitutionality of 28 C.F.R. § 540.20(b) on his own behalf and on behalf of others. If Mr. Jordan has standing, the second issue is whether 28 C.F.R. § 540.20(b) violates the First Amendment to the United States Constitution.

It is, perhaps, also helpful to recite what is not being considered in this action. First, the Court is not determining the wisdom of any BOP policy. The Court defers to the judgment and expertise of prison officials with regard to penological objectives and the costs and benefits associated with meeting such objectives because these are derived from the "expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Second, the Court does not consider the content of any writing published by Mr. Jordan, or express any opinion as to whether his writings or those of other inmates should be published.

II. Findings of Fact

The BOP operates federal prisons and detention facilities. In such facilities, it regulates inmate behavior through Regulations, Institution Supplements, Operations Memoranda, Program Statements, Program Review Guidelines, and Technical Reference Manuals.²

The BOP authorizes, and in some instances encourages, inmates to publish their writings.³ For example, the BOP does not restrict or review submissions of "letters to the editor" or postings on the internet. Regulations also permit inmates to submit manuscripts (which include any form of drawing or writing, such as poetry or essays, whether fiction or non-fiction) for publication and attribution.⁴ According to Program Statement No. 5350.27 (dated 7/27/99), the purpose of these regulations is "[t]o encourage inmates to use their leisure time for creative writing and to permit the direct mailing of all manuscripts as ordinary correspondence.... The expected result of this program is: Inmates will be afforded the opportunity to write and mail manuscripts for publication." Consistent with this Program Statement, in March 2007, ADX Warden R. Wiley approved a Leisure Library Contest in which inmates authored and submitted children's books. The winning book was then sent to the winner's family or to the local public library. The memorandum describing this contest explained that "[t]he idea behind this contest is to increase inmate involvement, reduce inmate idleness and encourage inmates to develop new skills." Manuscripts are reviewed by corrections staff prior to submission.

However, 28 C.F.R. § 540.20(b)⁵ provides that "The inmate may not act as reporter or publish under a byline."⁶ According to Maureen Cruz, the associate warden of operations at ADX, and John Shartle, the warden at FCI-Elkton, Ohio, this regulation prohibits inmates from publishing under a byline only in the "news media." The BOP defines the news media as newspapers, news magazines, national and international news services, and TV and radio news programs.⁷ For purposes of this matter, the BOP is concerned only with written news media publications.

28 C.F.R. § 540.20(b) was first promulgated in 1979. At such time, the BOP had two justifications for the regulation. First, by acting as a reporter or publishing under a byline in the news media, inmates could rise to undue prominence within the inmate population, thereby becoming a security risk. Second, such activities might result in inmates conducting a business.⁸ According to the evidence presented, these are continuing purposes for the regulation.

BOP witnesses testified as to three discrete security issues.. If an inmate publishes under a byline (or as a reporter) in the news media, the inmate may gain undue stature and power, thereby becoming a "big wheel," which creates supervisory and management problems. In addition, the content of published materials can be controversial, thereby placing the authoring inmate or others at risk of physical violence. Finally, the willingness of security staff to perform their tasks may be compromised out of fear of being included in a bylined publication. Staff members might treat an inmate who publishes articles in the news media differently from other inmates or might guard their conduct or statements to avoid adverse public exposure.

With respect to the security concerns, the BOP regards articles published in the news media as different from other inmate publications. Ms. Cruz testified that the news media is seen as a "purveyor of truth" or a "conduit of legitimate information." Mr. Shartle testified that as compared to manuscripts, news media articles are published more quickly, have greater credibility and are not subject to prior staff review. However, no historical evidence that any inmate's publications in the news media created such security problems was presented.

These security concerns were not shared by Mr. Bair, a former prison warden and retired, criminal justice professor, who testified that the "big wheel" theory had been advanced in corrections literature during the 1970s, but since then has been largely abandoned by correction officials. He further testified that there is no historical. data to support the proposition that an inmate who publishes will constitute a security risk; to the contrary, correctional institutions often promote inmate writing and publishing as a rehabilitative activity, and promote inmate prominence to reward good behavior and to showcase positive role models. As to staff intimidation, Mr. Bair opined that any risk was more properly and successfully addressed by appropriate selection, supervision and training of correction officers.

Two other Regulations specifically address the BOP's security and business operations concerns. 28 C.F.R. § 540.14(a)⁹ authorizes the BOP to screen all mail, including publications, coming into prisons or detention facilities, and to exclude any material that might create a security concern. Indeed, it was through implementation of this Regulation that the publications that gave rise to this lawsuit were discovered.¹⁰ In addition, 28 C.F.R. § 541.13, Code 408 prohibits inmates from conducting a business while incarcerated.

Despite such regulations, the BOP considers 28 C.F.R. § 54020(b) to be essential to maintain prison order and security. Mr. Shartle testified that without 28 C.F.R. § 540.20(b), there would be "a real growth among the population availing themselves of this opportunity", and that if the more than 198,000 inmates in the custody of the BOP were permitted to publish under bylines, this would substantially increase the number of writings which staff would be required to screen. No evidence was presented as to what news media publications are currently screened, and whether and to what degree more submissions to news media sources would result in more publications to screen or at what cost to the BOP.

During the course of this litigation, and in order to address the issues raised herein, the BOP issued policy statements in order to provide guidance as to when an inmate should be punished for violating 28 C.F.R. § 540.20(b). On June 17, 2005, ADX-Florence promulgated Institution Supplement FLM 1480.05B.¹¹ It provides:

A column or article published under a byline alone is not prohibited conduct. Staff shall examine the relationship between the inmate's activities and the inmate's contacts with the news media. The activities which may be evidence of prohibited conduct, in conjunction with an inmate written byline, include but are not limited to:

(a) when the inmate publishes a news article or news column in the news media — as the term "news media" is employed in 28 C.F.R. § 54020(b) — on a regularly occurring basis (consistent with the news media's ordinary publication cycle, i.e., daily, weekly, quarterly, etc.).

(b) when the inmate enters into a contractual or other agreement with a member of the news media for a regularly published news column or news article; or

(c) when the inmate undertakes regularly occurring article or column "job" assignments with the news media. An inmate publishes on a regularly occurring basis when his publication of articles or columns is such that it indicates a relationship or affiliation with that news media.

On October 20, 2006, Kathleen M. Kenney, Assistant Director/General Counsel for the BOP, issued a document...