876 F.3d 966 (9th Cir. 2017), 15-16119, Crime Justice & America, Inc. v. Honea
|Docket Nº:||15-16119, 16-17195|
|Citation:||876 F.3d 966|
|Opinion Judge:||TALLMAN, Circuit Judge:|
|Party Name:||CRIME JUSTICE & AMERICA, INC., Plaintiff-Appellant, v. Kory HONEA, in his official capacity as Sheriff of the County of Butte, Defendant-Appellee.|
|Attorney:||Spencer D. Freeman (argued), Freeman Law Group Inc., Tacoma, Washington; Savannah R. Blackwell, San Francisco, California; Andrew Sosa, Alameda, California; for Plaintiff-Appellant. John R. Whitefleet (argued) and Thomas L. Riordan, Porter Scott APC, Sacramento, California; Bruce S. Alpert, Count...|
|Judge Panel:||Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Kenneth M. Hoyt, District Judge.|
|Case Date:||November 29, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted October 19, 2017, San Francisco, California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Eastern District of California, Troy L. Nunley, District Judge, Presiding, D.C. No. 2:08-cv-00343-TLN-EFB
Spencer D. Freeman (argued), Freeman Law Group Inc., Tacoma, Washington; Savannah R. Blackwell, San Francisco, California; Andrew Sosa, Alameda, California; for Plaintiff-Appellant.
John R. Whitefleet (argued) and Thomas L. Riordan, Porter Scott APC, Sacramento, California; Bruce S. Alpert, County Counsel, Office of the County Counsel, County of Butte, Oroville, California; for Defendant-Appellee.
Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and
Kenneth M. Hoyt,[*] District Judge.
Prisoner Civil Rights
The panel affirmed the district court's bench trial judgment in favor of defendants and affirmed the denial of plaintiff's motion to re-open discovery and for relief from judgment in a 42 U.S.C. § 1983 action challenging Butte County Jail's policy prohibiting the delivery of unsolicited commercial mail to inmates.
Plaintiff, a publisher of a magazine aimed at county jail inmates, argued that the jail's mail policy violated the First Amendment. The panel held that each of the four factors set forth in Turner v. Safley, 482 U.S. 78 (1987) favored defendant and therefore that Butte County's ban on inmates' receipt of unsolicited commercial mail was reasonably related to a legitimate penological objective. The panel held that: (1) the ban was intended to limit inmates' access to the type of paper most likely used to compromise jail security; (2) electronic kiosks where inmates could access an electronic version of the magazine were an adequate alternative; (3) defendant established that distributing the magazine would have a significant impact on the allocation of jail resources; and (4) paper had created serious problems at the jail, and the mail policy was not an exaggerated response to those problems.
The panel held that plaintiff abandoned its arguments related to the post-trial admission of a declaration and its appeal of the district court's denial of its motion for relief from judgment and its motion to re-open discovery. The panel noted that plaintiff failed to explain why it objected to the admission of the declaration or what new evidence pertaining to the electronic kiosks it could have discovered.
TALLMAN, Circuit Judge:
Crime, Justice & America, Inc. (" CJ&A" ) appeals the entry of judgment in favor of Butte County Sheriff Kory Honea following a bench trial in CJ&A's 42 U.S.C. § 1983 action against the Sheriff. The Sheriff oversees operation of the Butte County Jail, which prohibits delivery of unsolicited commercial mail to inmates. CJ&A publishes a magazine aimed at county jail inmates and argues that the jail's mail policy violates the First Amendment.
Based on the evidence presented at trial, the district court found the policy justified by legitimate penological interests. It also determined that electronic distribution of the magazine at recently installed kiosks was an adequate substitute for regular distribution of paper copies, which would have introduced thousands of pages of unsolicited paper into a facility where inmates habitually misuse paper in ways that threaten institutional security. Because the policy is reasonably related to a valid penological interest, the district court held the policy does not violate the First Amendment and granted judgment for the Sheriff.
Crime, Justice & America (" the magazine" ) contains articles intended to help inmates navigate the criminal justice system, as well as advertisements for attorneys and bail bondsmen. CJ&A provides the magazine to inmates for free; it does not offer subscriptions. Its only source of revenue is the advertising it sells.
CJ&A distributes its magazine in one of two ways. In jails that allow " general distribution," stacks of the magazine are left in common areas each week. In other jails, copies of the magazine are individually addressed and mailed to one out of every ten inmates, using publicly available inmate roster information.
The Butte County Jail in Oroville, California, houses an average of 580-590 inmates each day. Due to staffing constraints, inmates are not directly supervised by a correctional officer for significant portions of the day. The jail instead employs " remote surveillance, direct observation" and " linear" models of supervision, so corrections officers spend just a few minutes of every hour in each housing area, or briefly observe inmates from hallways without even entering housing areas. That means corrections officers are not physically present in all areas of the jail to continually monitor inmate behavior.
Abuse of paper is a persistent problem at the Butte County Jail. Inmates use paper to cover windows, speakers, and lights; to clog toilets and block air vents; to start fires; and to conceal contraband. Jail officials report that paper-related violations occur " every day." These violations are almost always committed using paper with which inmates do not have a personal connection, such as pages torn out of phone books or donated paperbacks. Correctional supervisors testified that " personally owned papers" such as letters, photographs,
and legal mail are almost never used for such purposes.
In an effort to combat paper-related violations, thirty-one electronic kiosks were installed throughout the jail in 2014, along with two portable kiosks. The kiosks allow inmates to access electronic versions of the jail handbook, administrative forms, and reading material. The kiosks can easily accommodate reading material uploaded in portable document format (" PDF" ).
In 2004, CJ&A requested permission to distribute 50-55 paper copies of its magazine at Butte County Jail every week. Each issue of the magazine has 36-40 pages, so granting CJ&A's request would have resulted in the introduction to the facility of at least 1,800 pages' worth of material every week. Butte County officials refused CJ&A's request, citing a longstanding but unpublished policy forbidding the delivery of unsolicited commercial mail to inmates. The month after CJ&A made its request, Butte County issued a departmental order that put this policy into writing.
CJ&A corresponded with Butte County officials for several years, trying unsuccessfully to convince them to distribute the magazine. In 2008, CJ&A filed a civil rights suit against the Butte County Sheriff in the Eastern District of California, arguing that the jail's ban on unsolicited commercial mail violates the First Amendment. The district court entered summary judgment for the Sheriff. CJ&A appealed and a prior panel of our Court reversed and remanded, holding that questions of material fact precluded summary judgment. Hrdlicka v. Reniff, 631 F.3d 1044, 1046 (9th Cir. 2011), reh'g en banc denied, 656 F.3d 942 (9th Cir. 2011), cert. denied sub nom. Reniff v. Hrdlicka, 565 U.S. 1197, 132 S.Ct. 1544, 182 L.Ed.2d 164 (2012).
The district court conducted a four-day bench trial in November 2014. During the trial, jail officials testified that they would permit PDF versions of the magazine to be made available on the electronic kiosks they had recently installed, but the kiosks were not properly working at the time. In February 2015, while the case was still under submission awaiting the court's decision, the Sheriff moved to reopen the case and proffered Jail Operations Commander Captain Jerry Jones's declaration that " the kiosks/monitors ... [were] now fully operational." CJ&A objected, but the district court granted the motion and admitted the Jones declaration into evidence.
In May 2015, the district court rendered its judgment in favor of the Sheriff, holding that the jail's mail policy did not violate the First Amendment and denying CJ&A's claims for declaratory and injunctive relief. CJ&A appealed. It also filed a motion for an Order Indicating Willingness to Entertain a Motion to Re-Open Discovery, or in the alternative a Motion for Relief from Judgment and to Re-Open Discovery, arguing that it should be permitted to conduct discovery regarding the kiosks. The district court denied the motion, and CJ&A appealed that ruling.
We consolidated both appeals and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
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