News v. Babeu

• Decision Date: 20 March 2013
• Docket Number: No. CV–11–01761–PHX–GMS.,CV–11–01761–PHX–GMS.
• Citation: News v. Babeu, 933 F.Supp.2d 1188 (D. Ariz. 2013)
• Parties: PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff, v. Paul BABEU, individual and in his official capacity as Sheriff of Pinal County, Arizona; et al., Defendants.
• Court: U.S. District Court — District of Arizona

933 F.Supp.2d 1188

PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff,

v.Paul BABEU, individual and in his official capacity as Sheriff of Pinal County, Arizona; et al., Defendants.

No. CV–11–01761–PHX–GMS.

United States District Court, D. Arizona.

March 20, 2013.

Blake Thompson, Ernest Galvan, Kenneth M. Walczak, Leslie Chambers Mehta, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, Daniel Joseph Pochoda, ACLU, Phoenix, AZ, Lance Theodore Weber, Brattleboro, VT, for Plaintiff.

Eileen Dennis Gilbride, Georgia A. Staton, Michele Molinario, Jones Skelton & Hochuli PLC, Phoenix, AZ, for Defendants.

ORDER

G. MURRAY SNOW, District Judge.

Pending before the Court is Plaintiff Prison Legal News's (“PLN”)Motion for Partial Summary Judgment, Permanent Injunction, and Declaratory Judgment.(Doc. 85.)Defendants have filed a Response and Cross-motion for Partial Summary Judgment.(Doc. 102.)Each motion is granted in part, denied in part, and deferred in part.In addition, PLN filed a Motion for Surreply (Doc. 134), which is denied.¹

FACTUAL BACKGROUND

Plaintiff PLN is a non-profit organization that provides a variety of materials to prisoners throughout the country.(Doc. 89 ¶¶ 1–5.)It produces and distributes a 56–page monthly journal that “provides information about legal issues such as access to courts, disciplinary hearings, prison conditions, excessive force, mail censorship, prison and jail litigation, visitation, telephones, religious freedom, prison rape, and the death penalty.”( Id.¶ 4.)PLN also distributes a variety of books.( Id.¶¶ 5–6.)These books include PLN's own publications as well as books published by other entities, such as “Protecting Your Health and Safety”, which is published by the Southern Poverty Law Center.( Id.)According to PLN, it has around 7,000 subscribers and distributes its materials to around 2,200 correctional facilities.( Id.¶ 7.)PLN challenges the actions of Pinal County Jail officers and employees, who failed to deliver PLN materials during 2011.

The Defendants to this action are all involved in the administration of the Pinal County Jail or work in its mailroom.Paul Babeu is the Sheriff of Pinal County and assumed that office on January 1, 2009.(Doc. 99 ¶ 53;Doc. 119 ¶ 53.)He delegated all responsibility for the Pinal County Jail and its policies to Deputy Chief James Kimble.(Doc. 87 ¶ 35;Doc. 99 ¶ 35.)Deputy Kimble's command staff included David Linderholm—the training specialist for jail staff since 2007(Doc. 99–1, Ex. D (Linderholm Dep.)at 11:7–15;Doc. 99 ¶ 36), and Commanders Terry Johnson, Jaryme Valenzuela, and Ruben Montano, who reviewed policy and trained jail staff.(Doc. 87 ¶ 36;Doc. 99 ¶ 36.)

In the jail's mailroom, there were several detention aides who reported to a Sergeant who, from 2008 to January 2011, reported to a lieutenant. From some time in 2008 until July 2011Tonya Delgado was the Sergeant who oversaw mailroom operations.(Doc. 88–1, Ex. A (Delgado Dep.)at 32:1–7.)She supervised Detention Aides Alyssa Romero, Laurenda Hensley–Salisberry, and Cheryl McBirnie, who sorted the mail.( Id.)Lieutenant Darrin Rushing was Sergeant Delgado's supervisor from 2008 to January 2011.(Doc. 88–1, Ex. F (Rushing Dep.)at 20:11–18.)He was succeeded by Lieutenant Gilbert Hoyos.(Doc. 88–1, Ex. F at 25:17–21.)In addition to reporting to Lieutenant Rushing, (Doc. 122, Ex. B (Delgado Dep.)at 76:18–77:6), Sergeant Delgado could also consult Commander Montano if questions arose about policy.(Doc. 99–1, Ex. E (Darrin Rushing Dep.)at 27:6–29:2.)DefendantSergeant Leonard Arnold apparently took over supervision of the mailroom from Sergeant Delgado sometime in mid–2011.There is no evidence that the remaining named Defendants² were involved in this case.

Beginning in February 2011, PLN attempted to send its publications to the jail's inmates.(Doc. 87 ¶ 1–4;Doc. 99 ¶ 1–4.)These materials included the PLN monthly journal; an Informational Brochure pack, which contained a subscription order form, book list, and brochures; and the book “Protecting Your Health and Safety.”( Id.;Doc. 89 ¶ 12.)Jail staff members were unfamiliar with PLN and had never seen its materials before.(Doc. 99 ¶ 67;Doc. 119 ¶ 67.)It appears no magazines or newspapers had ever been sent to the jail before.(Doc. 99 ¶¶ 76–77;Doc. 119 ¶¶ 76–77.)Starting in March 2011, PLN began receiving many of its materials back with various notations on them, such as “not allowed”, “only 1 page letters allowed”, and “not sent from approved publisher.”(Doc. 89–1, Ex. C at PLNT 000042, 000045, 000172;Doc. 87 ¶ 5;Doc. 99 ¶ 5.)

Detention Aides Romero, McBirney, and Hensley–Salisberry received the PLN materials and were unsure how to handle them.(Doc. 88–1, Ex. H (Romero Dep.)at 25:12–21.)The detention aides took the matter to Sergeant Delgado, their supervisor, and asked what they should do.( Id.)Sergeant Delgado asked the detention aides what they did with similar publications and learned the aides had never seen analogous items before.(Doc. 99–2, Ex. I (Delgado Dep.)at 76: 6–77:16.)Sergeant Delgado went to Lieutenant Rushing who told Sergeant Delgado that he had never seen the pamphlets before.( Id.)He gave no further direction.There is conflicting evidence about what Sergeant Delgado did next.Detention Aides Romero and McBirney said that Sergeant Delgado told them to return the materials to the sender or throw them away.(Doc. 88–1, Ex. H (Romero Dep.)at 26:22–25, 27:1–2;id., Ex. G (McBirnie Dep.)at 22: 10–13.)Sergeant Delgado claims to have never told anyone to throw the materials away.(Doc. 99–2, Ex. I (Delgado Dep.)at 75: 3–5.)In either case, the detention aides proceeded to either discard the materials or send them back to PLN with the notations described above.(Doc. 88, Ex. H (Romero Dep.)at 27:4–8; Doc. 99–1, Ex. C (Hensley–Salisberry Dep.)at 26:4–25.)PLN's materials did not, however, pose any safety or security threat.(Doc. 87 ¶ 7;Doc. 99 ¶ 7.)

The official mailroom policy in effect ³ when PLN sent its materials did not contain any specific provision governing newspapers and magazines.As one of the rejection notices sent to PLN indicated, the policy limited incoming correspondence to “post cards no larger than 5X7 or regular envelope with a single page letter.”(Doc. 88–5, Ex. Q at PCSO 000048;id. at PSCO 000062.)The policy also contained a “publisher-only” rule.It provided that “[t]he mail room shall accept authorized publications directly from the publisher (paperback).Hard back books are not authorized.”( Id. at PCSO 000049;id. at PCSO 000063.)From its references to “paperback” and “Hard back,” this portion of the policy appeared to apply to books.Used books were also permitted, provided they were “shipped directly from a recognized publisher, distributor, or authorized retailer.”( Id.)Later, the policy stated that “[p]ublications shall come directly from a recognized publisher, distributor, or authorized retailer.”( Id. at PCSO 000052, id. at PCSO 000066.)Nowhere did the policy define the term “publication.”⁴In addition, no policy provision required jail officers to notify publishers that delivery had not taken place and provide an opportunity to appeal the jail's refusal to deliver items.(Doc. 87 ¶¶ 27–28;Doc. 99 ¶¶ 27–28.)

Despite the absence of a formal policy governing magazines and newspapers, the practice in the mailroom was to ban them.Detention Aides McBirnie, Hensley–Salisberry, and Romero all believed newspapers and magazines were banned.(Doc. 87 ¶ 22;Doc. 99 ¶ 22.)Likewise, Sergeant Delgado and Lieutenant Rushing believed that newspapers and magazines were contraband and should be immediately rejected.(Doc. 88–1, Ex. A (Delgado Dep.)at 52:21–23;id., Ex. F (Rushing Dep.)at 42:2–7.)In fact, the mailroom policy in effect until January 31, 2010—about a year before PLN began sending its materials—had included a blanket prohibition on magazines and newspapers.⁵The inmate handbook and jail website also stated that newspapers and magazines were considered contraband.(Doc. 88–1, Ex. J at PCSO 000112(2/25/10 revision), Ex. K at PCSO 000126(10/7/10 revision), Ex. L at PCSO 000140(1/6/11 revision), Ex. M at PCSO 000154(9/12/11 revision);Doc. 88–8, Ex. BB at PCSO 000545–48.)⁶In short, there was a widespread belief in the mailroom that newspapers and magazines were forbidden.

Mailroom staff also applied the publisher-only rule for books in a very limited fashion.Only four vendors were considered “recognized”: Amazon, Borders, Barnes & Noble, and Waldenbooks.(Doc. 87 ¶ 25;Doc. 99 ¶ 25.)Only books coming from these publishers were allowed.( Id.)Finally, mailroom staff strictly enforced the rule limiting correspondence to postcards and one-page letters.(Doc. 87 ¶ 24;Doc. 99 ¶ 24.)PLN materials were denied under all three rationales: the newspaper/magazine ban, the publisher-only rule, and the one-page letter policy.⁷On April 27, 2011, an inmate filed a request for information about the materials he was expecting from Prison Legal News.(Doc. 89–1, Ex. D.)A member of the prison staff responded: “The only thing that was received for you from PLN was a letter but it was returned due to it having more than 1 page.PLN is not an approved publisher therefore you can't receive books from them or newspapers.”( Id.)

At the policymaker level, however, Pinal County asserts that there was a starkly different understanding of the mailroom policy.Deputy Kimble testified that mailroom policy permitted magazines and newspapers, since the language expressly banning newspapers had been removed.(Doc. 99–2, Ex. F, (Kimble Dep.) at 82:22–83:14.)After examining the policy, Specialist Linderholm also stated that magazines and newspapers were allowed.(Doc. 99–1, Ex. D, (Linderholm Dep.)at 56:19–59:4.)⁸Nevertheless, no member of the staff was disciplined for refusing to deliver...