Covell v. Arpaio

• Decision Date: 24 September 2009
• Docket Number: No. CV 07-2453-PHX-DGC (DKD).,CV 07-2453-PHX-DGC (DKD).
• Citation: 662 F.Supp.2d 1146
• Parties: Frederick W. COVELL, Plaintiff, v. Joseph ARPAIO, Defendant.
• Court: U.S. District Court — District of Arizona

662 F.Supp.2d 1146

Frederick W. COVELL, Plaintiff, v. Joseph ARPAIO, Defendant.

No. CV 07-2453-PHX-DGC (DKD).

United States District Court, D. Arizona.

September 24, 2009.

COPYRIGHT MATERIAL OMITTED

Frederick W. Covell, Kingman, AZ, pro se.

Thomas P. Liddy, Maricopa County Attorney's Office, Phoenix, AZ, for Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Frederick W. Covell brought this civil rights action under 42 U.S.C. § 1983 against Maricopa County Sheriff Joseph Arpaio (Doc. # 10). Before the Court is Defendant's Motion for Summary Judgment (Doc. # 19), which is fully briefed (Doc. # 31, 34). The Court will grant Defendant's motion and terminate the action.

I. Background

Plaintiff's claims arose during his confinement at the Maricopa County Lower Buckeye Jail in Phoenix, Arizona (Doc. # 10 at 1).¹ The Second Amended Complaint set forth three claims for relief; two of those claims remain (id.).² In Count I Plaintiff alleged that Defendant violated Plaintiff's First Amendment rights by instituting a policy that bans incoming letters and restricts inmates' incoming mail to metered postcards (id. at 3). In Count II, Plaintiff claimed that Defendant's mail policy prevented him from receiving legal mail from witnesses in his criminal case (id. at 4).

The Court screened Plaintiff's Second Amended Complaint and found that Counts I and II, raised claims under the First Amendment (Doc. # 11). The Court ordered Defendant to respond to Counts I and II, and Defendant filed an Answer (Doc. # 13). The Court issued a Scheduling Order (Doc. # 14), and discovery commenced. Defendant then filed his Motion for Summary Judgment (Doc. # 19).

II. Defendant's Motion for Summary Judgment

A. Defendant's Contentions

Defendant seeks summary judgment on the ground that Plaintiff's constitutional rights were not violated (id.).

1. Count I

Defendant first argues that the mail policy limiting incoming non-privileged mail³ to metered postcards passes muster under the four-prong test set out in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (id. at 6-10). These four prongs examine whether there is rational connection between the regulation and a legitimate governmental interest, whether there are alternative means to exercise the right at issue, whether accommodation will have an adverse impact, and whether there are obvious and easy alternatives to the regulation. Turner, 482 U.S. at 89-91, 107 S.Ct. 2254.

First, Defendant contends that the policy has a rational connection to a legitimate governmental interest; namely, to prevent the smuggling of contraband and promote safety and security (id. at 4-5). Defendant claims that metered mail is required because a variety of drugs, including "Black Tar" herion, PCP, LSD, marijuana, cocaine, and powdered pills, are concealed under stamps (id.). Defendant further claims that note pads have been hollowed to create hidden depositories for other contraband, including blades, handcuff keys, or other weapons (id.). Defendants asserts that Plaintiff has alternative means of communication; he may send and receive an unlimited amount of mail, he can receive visitors, and he can communicate by telephone (id. at 13). Defendant also asserts that there would be adverse impacts on jail staff, other inmates, and prison resources if the jail were to accommodate inmate mail correspondence other than metered postcards. Defendant argues that there would be an increase in the likelihood of contraband smuggling, which in turn would put inmates and staff at risk (id. at 13-14). Finally, Defendant claims that there are no obvious, easy alternatives to the mail policy (id. at 14-15).

2. Count II

With respect to Plaintiff's second claim—that the mail policy prevented him from corresponding with his witnesses in his criminal case—Defendant argues that the mail policy does not apply to privileged mail (id. at 16). First, Defendant claims that Inmate Legal Services (ILS) is responsible for providing inmates access to legal materials and referral services. An inmate who represents himself in his criminal proceedings may submit unstamped and properly addressed mail to ILS for processing (id.). Defendant claims that Plaintiff was added as a pro per inmate on December 26, 2007, and signed for his copy of the "Guidelines for the Pro Per Inmate" that day (id.). The guidelines explain that pro per inmates are permitted free legal mail to the courts, advisory counsel, opposing counsel, and witnesses on a certified court witness list (id.). Defendant asserts that Plaintiff filed two witness lists: the first, dated March 24, 2008, listed Erich Lentes and an unknown investigator; the second, dated May 1, 2008, listed Erich Lentes, William Harrington, and an unknown investigator (id. at 17).

Defendant disputes Plaintiff's claim that he was unable to receive legal mail from Jose (last name unknown), Angel Valenzuela, Autumn Sumner, and an unknown potential witness. Rather, Defendant contends that Plaintiff's witness list did not include these individuals (id.).

Finally, Defendant contends that Plaintiff's claims are subject to dismissal because he has not suffered the requisite physical injury required under 42 U.S.C. § 1997e(e) (id. at 18).

In support of his motion, Defendant submits a Statement of Facts (Doc. # 20, DSOF); Plaintiff's Maricopa County Sheriff's Office (MCSO) Booking Ticket (id., Ex. 1); the affidavit of John "Jack" MacIntyre (id., Ex. 2); a copy of the Inmate Notice re: Informal Post Card Policy (id., Ex. 3); MCSO Policy # DP-6, Inmate Legal Services (id., Ex. 4); MCSO Inmate Legal Services Pro Per List (id., Ex. 5); Guidelines for the Pro Per Inmate (id., Ex. 6); copies of Plaintiff's Witness Lists (id., Ex. 7); excerpts from Plaintiff's Deposition (id., Exs. 8-9, Pl. Dep., Nov. 26, 2008); and the affidavit of Inmate Legal Services Supervisor Carol Lillie (id., Ex. 10).

B. Plaintiff's Response

The Court issued an Order informing Plaintiff of his obligation to respond to the motion (Doc. # 21).⁴ Plaintiff opposes Defendant's motion and argues that material facts exist on his claims; thus, summary judgment is not warranted (Doc. # 31 at 1).

Plaintiff disputes Defendant's claim that the mail policy is reasonably related to a legitimate governmental interest (id. at 2). Plaintiff argues that mail from his 78-year-old mother in a nursing home poses no risk to jail safety or security (id.). He maintains that he has been denied the right to read a "heart felt letter" and correspondence from his witnesses in his criminal case (id.). Plaintiff further claims that the jail rejected mail from Eric Lentes, a witness in his criminal case, on three separate occasions (id.). Consequently, Plaintiff argues that his Sixth Amendment rights were violated by the mail policy (id. at 3).

Plaintiff argues that 42 U.S.C. § 1997e(e) does not apply to First Amendment claims. Plaintiff also disputes that the mail policy is rationally related to a legitimate penological objective (id. at 4). Plaintiff claims that only one out of 10,950 envelopes actually contains contraband, which does not necessitate the restrictive post-card policy (id.). Plaintiff contends that there is no safeguard against censorship of protected speech (id. at 5).

Plaintiff further maintains that his legal mail was affected by the postcard policy (id. at 6). Plaintiff argues that one complete letter is the equivalent of 40 postcards (id. at 7). And Plaintiff claims that only two of eleven postcards are in metered form, which demonstrates Defendant is not truthful regarding the mail policy (id. at 8).

Plaintiff argues that the mail policy is an overly broad response to the contraband problem (id. at 9). He argues that Defendant failed to provide specific evidence that incoming mail ever caused disciplinary or security issues (id.). And he claims that the mail policy is a merely a tool for administrative convenience (id. at 10).

Finally, Plaintiff lists the injuries he has suffered while in custody in the Maricopa County Jails: (1) lack of medical care for ruptured discs; (2) increasing cholesterol levels; (3) staph infection; (4) shingles; (5) excessive hair loss; and (6) a broken finger (id. at 11).

In support of his response, Plaintiff submits a Statement of Facts (Doc. #32, PSOF); copies of envelopes (Doc. #31, Ex. 1); notes from Inmate Legal Services (id., Ex. 2); eleven postcards (id., Ex. 3); copies of grievances addressing the mail policy (id., Exs. 4-6); copies of mail rejection slips (id., Ex. 7); copies of correspondence (id. Ex. 8); a copy of Plaintiff's Notice of Deposition (id., Ex. 9); MCSO Inmate Legal Services Policy (id., Ex. 10); a copy of Plaintiff's witness list (id., Ex. 11); a copy of the postcard policy (id., Ex. 12); copies of the Amended Judgment in Hart v. Hill, 77-479-PHX-EHC (id., Ex. 13); copies of inmate legal requests, documents from Plaintiff's criminal case and documents from this action (id., Exs. 14-16); and copies of medical request forms and medical records to support his injury allegations (Doc. # 32, Exs. M1-M6).

C. Defendant's Reply

Defendant replies that Plaintiff provided no proof that his legal mail was improperly rejected (Doc. # 34 at 1). Defendant also disputes Plaintiff's claim that "one in 10,950 envelopes contain contraband" (id. at 2). Defendant reiterates that in the past three years, the MCSO has experienced a growing number of incidents of attempted smuggling of contraband into the jail, which renders the mail policy rationally related to a legitimate penological objective (id.). Defendant also maintains that Plaintiff's suggestion that all incoming mail be inspected for contraband would be detrimental to safety because substantial staff time would be diverted to process the mail (id. at 3). Defendant argues that because Plaintiff can offer no obvious or easy alternative to the policy, it satisfies Turner's reasonableness standard. Finally, Defend...