DAVID J. WAXSE, Magistrate Judge.
In this removal action, pro se Plaintiff asserts four claims under 42 U.S.C. §1983 for events occurring while he was a pretrial detainee in the custody of the Sheriff of Johnson County, Kansas, being held at the Johnson County Adult Detention Center ("Detention Center"). Specifically, Plaintiff asserts claims for compensatory and punitive damages against Defendant Sheriff Frank Denning, individually and in his official capacity as Sheriff of Johnson County, Kansas, and four deputies, individually and in their official capacities as deputy sheriffs.
This matter is currently before the Court on the following motions: Defendants' Motion for Summary Judgment (ECF No. 120), and Plaintiff's Cross Motion for Summary Judgment (ECF No. 146) on Counts II, III and IV. The Court also takes up Plaintiff's "Objection of Magistrate [Judge] Ruling" (ECF No. 149), which the Court construes as a motion for reconsideration of the Court's January 14, 2014 denial of his motion to continue the discovery deadline, and Plaintiff's Motion for Appointment of Counsel (ECF No. 155). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
The following facts are either uncontroverted or, where controverted, are construed for purposes of summary judgment in the light most favorable to the party opposing the summary judgment motion.
Plaintiff was arrested on October 7, 2011, and at all times relevant to the issues in this case was a pretrial detainee in the custody of the Sheriff of Johnson County, Kansas.
The Sheriff's Office strictly prohibits staff from retaliating against inmates for filing grievances.
The Johnson County Sheriff's Office Detention Bureau Inmate Guidebook states that inmates may be subject to disciplinary action for abuse of the grievance procedure. It also states that abuse or misuse of the inmate grievance procedures, appeal process or Inmate Communication Form is a medium violation.
On October 7, 2011, when Plaintiff was booked into custody, he signed an Inmate Orientation, Rules and Guidelines sheet, which notifies inmates about the grievance process.
On October 7, 2011, when Plaintiff was booked, his initial classification was "maximum custody." Plaintiff continued to be a maximum custody inmate through two more assessments in November 2011 and January 2012; however, the Detention Center staff decided to override this classification to medium custody due to good behavior, but the classification was never changed from maximum custody.
On October 20, 2011, Plaintiff was put on a 30-day observation list to pre-qualify for a kosher diet. He was eventually approved for a kosher diet and made no complaints about the food for several months.
On February 2, 2012, Plaintiff was found to have been attempting to ferment alcohol in a trash can in his cell, for which he was placed in disciplinary segregation pending investigation of the incident.
On February 22, 2012, because of two recent disciplinary citations including the alcohol incident, Plaintiff was reassessed and Sergeant Mahaney elected to continue the override of his maximum custody classification. This was communicated to Plaintiff.
In March 2012, Aramark, the independent contractor that supplies food to the Detention Center, switched its kosher meal plan to a "Lacto-Ovo" diet.
On March 22, 2012, Plaintiff submitted grievances that his diet was not kosher.
Around 9:00 a.m. on March 23, 2012, Plaintiff was moved from medium custody to maximum custody, which is a functional revocation of his override.
On March 23, 2012, Plaintiff submitted two more grievances to Aramark about the kosher/Lacto-Ovo diet it served, though these were also treated collectively.
On March 23, 2012 at around 4:30 p.m., Plaintiff was cited with medium violation #209 for misuse of the grievance process.
Sergeant Mahaney explained to Plaintiff in a correspondence dated March 27, 2012, that Plaintiff was not being religiously persecuted and that his override was revoked for rules violations.
Plaintiff received two formal notices of discipline setting forth the basis for the citation and punishment.
On March 27, 2012, Plaintiff was formally sanctioned for the grievances filed between March 22 and 23, 2012.
The Detention Center's policy states that any cross-gender observation will occur only if there is a reasonable need for the safety of the inmate or others.
The Detention Center policy is that all deputies are trained to manage all housing modules and units and will rotate assignments on a regular basis.
9-Side is a segregation wing of the Detention Center that consists of four 12-bed modules. 9-Side is used to house those inmates, regardless of classification, who would be inappropriate to house in general population due to disciplinary issues or administrative reasons, regardless of custody level. 9-Side is monitored from a single location which has the ability to monitor recreation for two inmates at a time. Inmates housed in 9-Side are the most closely monitored in the entire facility, requiring "intense supervision" because they pose a danger to the safety of themselves, other inmates and the facility staff. Each cell in 9-Side has a camera that is constantly recording and monitored.
Deputy Rowe is a female who has periodically been assigned to monitor the 48 cells in 9-Side. Deputy Rowe is completely qualified to monitor the 48 cells in 9-Side.
From April 1, 2012 to June 1, 2012, only males were housed in 9-Side.
The Detention Center's incoming mail policy is to accept only postcards, privileged mail, and preapproved letters for incoming mail. Privileged mail is defined in the Inmate Guidebook as "mail received from licensed attorneys." The Detention Center's Directive: 16-02 defines privileged (legal) mail as mail "received by an inmate from a licensed attorney or the court." All other mail is considered to be non-privileged mail.
The Detention Center's policy is that any incoming non-privileged mail that violates its rules will be returned to sender without notice to the inmate, but an explanation will be provided to the inmate subsequent to the rejection. The notices Plaintiff received included the name of the sender of the incoming mail but did not list an address for the sender. The incoming mail was rejected and returned simultaneously as the notice was written.
Inmates can request the preapproval of non-postcard, non-privileged mail prior to the letter's arrival, a practice of which Plaintiff is aware. Plaintiff did not request approval of the letters he complains of in this case prior to their arrival.
Plaintiff had non-privileged letters rejected because they were not postcards and were not preapproved. Four letters sent to Plaintiff were returned to sender due to the Detention Center's mail policy. The four letters were from SRS,
Plaintiff was not afforded pre-deprivation remedies on returned mail. He could only protest or grieve the rejection. The sender of the returned mail was not given a chance to protest before the mail was returned.
The 9-Side unit is the unit in the Detention Center in which Plaintiff was required to take his recreation between midnight and 5:00 a.m.
Inmates are allowed one hour of recreation time daily, unless they request the time be ended early. Otherwise, inmates are in their cells at all other times, except time in the law library, court, and medical.
Inmates in disciplinary segregation have recreation time between midnight and 5:00 a.m. Inmates in administrative segregation receive recreation during day or evening hours.
On May 8, 2012, Plaintiff's recreation time began at 12:06 a.m. and lasted for 21 minutes. Plaintiff had a state court appearance later that morning at 10:00 a.m.
Under Fed. R. Civ. P. 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(c)(1) further provides that the party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
"The court need consider only the cited materials, but it may consider other material in the record."
The moving party bears "both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law."
When the parties file cross motions for summary judgment, the court must analyze each motion individually and on its own merits.
Plaintiff is proceeding pro se. The Court therefore reviews his pleadings, including those related to the present motions for summary judgment, "liberally and holds them to a less stringent standard than those drafted by attorneys."
Qualified immunity shields government officials performing discretionary functions from liability for civil damages as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."
In resolving questions of qualified immunity at summary judgment, the court engages in a two-pronged inquiry. The court first asks whether the facts, "[t]aken in the light most favorable to the party asserting the injury ... show the officer's conduct violated a [federal] right [.]"
Courts have discretion to decide the order in which to examine these two prongs.
In the Pretrial Order (ECF No. 147), Plaintiff asserts that he is entitled to recover under the following theories:
In Count I, Plaintiff alleges that Deputies Marriott, Mahaney, Prothe, and Cortright retaliated against him for exercising his First Amendment right to file grievances about the changes to the kosher diet served by the Detention Center. Specifically, he alleges that after he submitted a two-page grievance to Aramark, the food service provider, about whether the food was kosher and another grievance to Sergeant Marriott—because Deputy Hostetler instructed him that Sergeant Marriott was in charge of the new kosher diet implementation—Defendants retaliated the next morning by moving him out of his medium custody classification cell and revoking his maximum custody classification "override" (which permitted him to reside in medium custody housing). Plaintiff alleges that at the time he was being moved out of his medium custody cell, deputies told him that he was being moved because he went into another inmate's cell. Plaintiff further alleges that the citation he received for misuse of the grievance process was written after he was moved from the medium to maximum security module.
Defendants deny that the revocation of Plaintiff's maximum classification override was in retaliation for using the grievance process. They assert that the reason for their action in revoking Plaintiff's classification override by moving him from his medium classification cell on the morning of March 23, 2012 was due to Plaintiff abusing the grievance process. They emphasize that the revocation was not due to Plaintiff using the grievance process, but that he was abusing it by filing multiple grievances over the same subject matter in a short period of time. According to Defendants, Plaintiff filed three grievances on March 22, 2012, one listed as an "emergency," that the new diet was not kosher. Defendants admit that they treated the grievances collectively as three separate pages under a single grievance number; however, they point out the grievances were submitted at different times with different complaints. One grieved whether the diet was kosher and two grieved whether the diet was dietician approved.
Prison officials may not retaliate against or harass an inmate because of the inmate's exercise of his constitutional rights.
To establish a First Amendment retaliation claim, a plaintiff must show that (1) he was engaged in constitutionally protected activity, (2) the government's actions caused him injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the government's actions were substantially motivated as a response to his constitutionally protected conduct.
Here, Plaintiff alleges that Defendants retaliated against him for filing administrative grievances. The Tenth Circuit has established that the filing of prison grievances is a constitutionally protected activity.
The second element of a retaliation claim is that the government's actions caused the plaintiff injury that would chill a person of ordinary firmness from continuing to engage in that activity.
Defendants argue that Plaintiff suffered no cognizable harm from the revocation of his override because the Detention Center staff did not need any reason to move Plaintiff back to maximum housing because his classification was always as a maximum custody inmate. The loss of his override of that maximum custody classification therefore would not chill a person of ordinary firmness from continuing to engage in that activity. In support of his retaliation claim, Plaintiff alleges that less than sixteen hours after he filed grievances that the new kosher diet being served was not kosher compliant, his medium classification override was revoked and he was removed from his medium custody classification pod and taken to maximum custody.
The Court finds that the alleged government action—the revocation of Plaintiff's maximum classification override so that he would be transferred from medium classification housing to maximum—would "chill a person of ordinary firmness" from continuing to engage in the protected activity of filing grievances. Given the differences in privileges and treatment of medium versus maximum custody classification inmates, a person of ordinary firmness would be deterred from filing grievances by being transferred from medium custody housing to maximum custody housing. Even though Plaintiff always had a maximum custody classification but was given an override to place him in medium custody housing, this does not negate the injury to him resulting from the revocation of the override. The principle prohibiting retaliation because of the inmate's exercise of his constitutional rights "applies even where the action taken in retaliation would be otherwise permissible."
The third and final element a plaintiff must establish to show retaliation is that the government's actions were "substantially motivated as a response to his constitutionally protected conduct."
Plaintiff has presented no direct evidence that the revocation of his medium classification override and transfer to maximum custody housing was motivated by a retaliatory reason. He has, however, presented circumstantial evidence of temporal proximity between his filing grievances and his being moved out of the medium custody pod into a maximum custody area. The record shows that Plaintiff filed at least two grievances regarding the changes to the kosher diet late in the day on March 22, 2012, and that Plaintiff was moved from his medium custody cell at approximately 9:00 a.m. the next morning. A review of the kosher diet related grievances submitted by Plaintiff on March 22, 2012 (ECF No. 122-12) shows that they consist of three pages, all with the same grievance number (#12GR00311). The first page is an Inmate Communication Form with a submission date and time of March 22, 2012 at 18:30 hours addressed to Aramark (but with Housing Sergeant Marriott's name crossed out). The second page is also an Inmate Communication Form directed to Aramark with a submission date and time of March 22, 2012 at 22:00 hours. The third page is also an Inmate Communication Form directed to Aramark (but with Sergeant Marriott's name crossed out) with the same submission date and time (March 22, 2012 at 22:00 hours).
Defendants' Narrative Report (ECF No. 122-13) dated March 23, 2012, states that in a 24-hour period, Plaintiff submitted five separate grievances on the same subject matter. The Narrative Report describes the following chronology of Plaintiff's requests for grievance forms: On March 22, 2012, at approximately 16:30 hours, Plaintiff received a kosher meal tray. Plaintiff was displeased with his kosher meal and asked the module officer for a grievance to Sergeant Marriott. At approximately 17:15 hours, Deputy Hostetler provided Plaintiff with an Inmate Communication Form for grievance addressed to Sergeant Marriott. At approximately 18:00 hours, Plaintiff approached the module officer and asked for—and received—another grievance about the kosher meal to be addressed to Sergeant Marriott. The Report states that Plaintiff then submitted another grievance addressed to Aramark for the same subject matter concerning the kosher meal.
The Narrative Report further states that the next day, March 23, 2012, at approximately 6:30 hours, Plaintiff received his kosher meal tray and then asked the module officer for a grievance to Sergeant Marriott. At his request, an Inmate Communication Form was provided to him at 7:00 hours. Later that day at 12:30 hours, Plaintiff received a kosher meal tray. He was again displeased with the meal and asked the module officer for a grievance addressed to the housing sergeant. Deputy Nuss provided Plaintiff with an Inmate Communication Form at 13:00 hours.
Under these facts, the Court finds that Plaintiff has presented enough circumstantial evidence of temporal proximity between his filing grievances about the kosher meal served on March 22, 2012 and Defendants moving him from his medium custody cell to a maximum custody one, which is the functional equivalent of revoking his maximum classification override. The evidence indicates that Defendants revoked Plaintiff's override at approximately 9:00 a.m. the morning after he requested and submitted either two or three grievances (depending on how they are counted) about the kosher meal tray he received the preceding evening. Plaintiff claims that he submitted only two grievances, a two-page one to Aramark and one to Sergeant Marriott. Defendants claim that Plaintiff submitted five separate grievances and that doing so warranted his citation for misuse of grievance procedure. Under the chronology of events set out in Defendants' own Narrative Report, however, Plaintiff had submitted only three of those grievances before he was moved from his medium custody cell at 9:00 a.m. on March 23, 2012. Defendants also admit that they treated the three grievances he filed on March 22 collectively, even assigning them the same grievance number. Finally, Defendants also did not give Plaintiff his official citation for abusing the grievance process until 4:30 p.m. on March 23, several hours after he was moved from his medium custody cell.
Plaintiff also raises factual issues with respect to the veracity of the asserted reason for revoking his override. He argues that the facility staff had inconsistent and differing explanations for the revocation. He asserts that the Detention Center's grievance policy is a four-step process whereby grievances are submitted first to a sergeant, then to a lieutenant, then to the captain, and finally to the major. He alleges that Defendants have submitted only the sergeant and major's responses because they more closely match Defendants' "story" of why his override was revoked. He points to two inmate grievance responses he later received, both of which sought for clarification why his override was revoked. Those responses stated that the removal of his override was "due to some safety and security reasons, not due to you filing a grievance about your religious diet."
Plaintiff also raises a factual issue with respect to why he filed multiple grievances. He claims that he filed separate grievances on March 22, 2012 because his grievances previously had been rejected for including more than one complaint in a grievance so he treated the separate meals as separate issues. Plaintiff also claims that Deputy Hostetler suggested that Plaintiff write to Sergeant Marriott because he was the one in charge of implementing the diet and that Deputy Hostetler gave him a grievance to Aramark just in case so that it would get addressed. Plaintiff also alleges that during the five years he has been at the Detention Center, he has never seen an inmate get an override revoked outside of their reclassification date unless the inmate committed a major violation and had to go to 9-Side for disciplinary segregation or had an emergency code called on them.
The Court finds that Plaintiff has sufficiently demonstrated that genuine factual disputes exist regarding Defendants' motivation in revoking Plaintiff's maximum classification override and his removal from his medium custody pod early on March 23, 2012. Specifically, factual disputes exist as to the exact number, timing, and nature of the grievances filed by Plaintiff on March 22 and 23, 2012; whether Plaintiff filed multiple grievances at the suggestion of staff or because of past experiences; the responses by staff to those grievances; and whether staff gave Plaintiff differing explanations why he was moved from his medium custody cell. These factual disputes preclude summary judgment on Plaintiff's retaliation claim.
Defendants argue that to the extent Plaintiff is suing them in their individual capacities, they are entitled to qualified immunity. They construe Plaintiff's claim as alleging that Defendant Marriott retaliated against him in his individual capacity and Defendants Mahaney, Prothe, and Cortright retaliated against him by failing to rectify Defendant Marriott's actions, which could be construed as individual capacity or official capacity claims. For qualified immunity to apply to these Defendants in their individual capacities, the Court must decide whether the facts that Plaintiff has shown make out a violation of a constitutional right and whether the right at issue was clearly established at the time of Defendants' alleged misconduct.
Plaintiff next asserts a claim under 42 U.S.C. §1983 against Defendant Sheriff Denning and Deputy Cortright, in their individual and official capacities, alleging that his Fourth Amendment rights to privacy and Fourteenth Amendment due process rights were violated by the Detention Center's policy or custom that allows female guards to constantly and continuously view male inmates by monitoring the in-cell cameras. He alleges that a female guard was periodically assigned to monitor the in-cell cameras for the segregated inmates in 9-Side, where he was housed. Plaintiff alleges that the camera monitoring his cell has a full, clear view of the entire cell, including the toilet, and the female guard monitoring the camera was in a position to observe him changing clothes and using the toilet daily, thereby violating his constitutional rights to bodily privacy. He argues there is no penological interest in subjecting male inmates to female guards monitoring them in their cells 24 hours a day.
Although the Fourth Amendment does not establish a right to privacy in a prisoner's cell, prisoners do retain a limited constitutional right to bodily privacy, "particularly as to searches viewed or conducted by members of the opposite sex."
A few cases in the District of Kansas have addressed constitutional claims based upon opposite gender staff viewing nude or showering inmates. In Thompson v. Wyandotte County Detention,
In another case, Sandstrom v. Hoffer,
One District of Kansas case that has addressed cross-gender monitoring of prison security cameras is Hodge v. Topeka Correctional Facility.
The court found it significant that the plaintiff was not viewed in the shower or toilet, but in her cell, and that she and other inmates were expected to wear underclothing and another cover outside the shower area.
The Fifth, Seventh, and Eighth Circuits have upheld opposite-sex surveillance of inmates.
Considering the frequency, scope, manner, and place of the cross-gender observation alleged by Plaintiff, the Court determines the periodic monitoring of Plaintiff's in-cell cameras by a female guard does not rise to the level of a constitutional violation of Plaintiff's limited right to bodily privacy. While it is undisputed that a female guard was periodically assigned to monitor the in-cell cameras and that inmates can occasionally be seen on camera in their cells in any other male inmates in their cells while they were undressed or using the toilet. Given the number of cells being monitored by cameras and the number of guards on duty monitoring multiple cells continuously, any viewing of unclothed or toileting males by female staff while monitoring the cell cameras would be brief, isolated, and infrequent. As inmates are required to be clothed while in their cells, any viewing by female staff via the in-cell cameras would be a de minimis intrusion into the limited privacy rights of the male inmates.
Even if the Court were to find that the Detention Center's policy of allowing female staff to monitor in-cell cameras of male inmates impinges on Plaintiff's constitutional right to bodily privacy, the Court finds that the policy is reasonably related to legitimate penological interests under the Turner factors. First, a valid and rational connection exists between the Detention Center's policy of allowing cross-gender observation if there is a reasonable need for the safety of the inmate or others and its asserted interest in maintaining a secure facility by deploying available staff resources effectively. The second Turner factor also favors Defendants because male inmates have the alternative means of exercising their constitutional right to bodily privacy by positioning themselves away from the camera while undressing and arranging their clothing in such a manner to cover themselves while using the toilet. With respect to the third factor, the Court finds that female staff would be impacted by accommodating the male inmates' right to bodily privacy by not permitting female staff to monitor in-cell cameras. Female staff would be foreclosed from camera monitoring positions and all staff would be impacted by the reduction in overall available staffing resources. Finally, under the fourth Turner factor, an alternative might be having only male staff monitor the in-camera cells of male inmates. Given the deference with which the Court is to consider the Detention Center officials' decisions concerning the management of the Center, the Court does not find this alternative to be meaningful. As the Supreme Court noted in Hudson v. Palmer,
In Count III, Plaintiff asserts a claim under 42 U.S.C. §1983 against Defendant Sheriff Denning and Deputies Prothe and Cortright in their official and individual capacities, alleging his First Amendment rights to freedom of speech and access to the courts and Fourteenth Amendment due process rights were violated because his incoming, non-privileged mail was returned to sender under the Detention Center's policies. Plaintiff claims that three aspects of the Detention Center's incoming mail policies are unconstitutional. Specifically, he argues that the post-card only policy, the incomplete notice for mail returned to sender, and the lack of meaningful appeal process for returned mail are individually unconstitutional.
Defendants argue that, to the extent Plaintiff makes any individual capacity claims, they are entitled to qualified immunity on those claims. Defendants point out there is no caselaw from this Court, the Tenth Circuit, or the United States Supreme Court that clearly establishes the unconstitutionality of a postcard-only mail policy for non-preapproved, non-privileged mail. For qualified immunity to apply to Defendants Denning, Prothe, and Cortright in their individual capacities, the Court must decide whether, under the facts that Plaintiff has alleged, he has shown the officer's conduct violated a federal right and whether the right in question was clearly established at the time of the violation.
Having granted summary judgment on the individual capacity claims, the Court next addresses Plaintiff's mail policy claim against Defendants in their official capacities. Plaintiff has asserted this claim against Defendants Sheriff Denning and Deputies Cortright and Prothe in their official capacities. Plaintiff's claim is therefore equivalent to a claim against the County entity responsible for operating the Detention Center and adopting the postcard-only policy.
In Monell v. Department of Social Services of City of New York,
"Inmates have a First Amendment right to receive information while in prison to the extent the right is not inconsistent with prisoner status or the legitimate penological objectives of the prison."
Keeping in mind the deference afforded to county jail administrators, the Court will analyze the Turner factors for each aspect of the Detention Center's incoming mail policy that Plaintiff argues is unconstitutional.
Plaintiff argues that the Detention Center's postcard-only policy, which only allows incoming non-privileged, non-preapproved mail to be in the form of a small postcard, is unconstitutional. He argues that the postcard-only policy fails every factor of the Turner test and is an exaggerated response to the Detention Center's alleged concerns about security. To warrant deference, Plaintiff asserts that prison officials must present credible evidence to support their stated penological goals. Plaintiff argues that Defendants have not presented credible evidence to support their claimed penological goals advanced for the postcard-only policy, to prevent contraband from entering the facility and reduce staff time spent inspecting letters for contraband. He claims that the real reason for the postcard-only policy is so that the staff can read the content of the postcard mail much more quickly, not that they are worried about contraband in letters.
Plaintiff asserts that the postcard-only policy is unreasonable. Under this policy, the amount of information that can be communicated is limited to what can be legibly written on one side of a small postcard. Plaintiff argues that many organizations that send mail to inmates, such as religious organizations, government agencies, and other organizations that reach out to prisoners, do not have the resources to transfer information that is otherwise on a pamphlet, handout, or other pre-formatted material to the confines of a postcard. And some mail items cannot reasonably be put onto a postcard, such as a W-2 form or paycheck or stub.
Plaintiff also argues that the postcard-only policy unconstitutionally restricts communications from family members and others who wish to communicate with him. Due to the expense and restrictions on telephone calls and visits, letters are the most feasible way for family members and others to communicate with inmates. Even assuming family members were somehow made aware of the postcard-only policy, they would be severely limited in the amount of information that could be legibly written or printed on a postcard, as opposed to the standard 8 by 11 inch sheet of paper. Plaintiff also argues that postcard-only policy effectively discourages family members from communicating with inmates due to the lack of privacy. Any information written on the postcard is fully open and visible for anyone to read. This would discourage family members and others from communicating with the inmate, especially topics of a sensitive or personal nature.
Defendants argue that the Detention Center's postcard-only policy, which only applies to non-privileged mail that is not preapproved, is rationally related to the legitimate interests in security and efficiency and there is no evidence that it is unconstitutional as applied to Plaintiff. They argue that other courts have upheld postcard policies as reasonably related to prison safety and efficiency under the Turner analysis.
Under the first Turner factor, the Court considers whether there is a valid, rational connection between the postcard-only policy and the legitimate government interest asserted for it.
The issue of whether a jail policy that limits incoming non-privileged mail to one side of a small postcard is constitutional has not yet been addressed by the Supreme Court or the Tenth Circuit. Nor has any District of Kansas case addressed this issue squarely. Recently, Judge Melgren, in Jackson v. Ash,
The Court was able to locate less than ten district court cases to date that have analyzed prison postcard-only mail policies under the Turner factors.
In contrast, two district courts have found jail postcard-only mail policies to be unconstitutional under the Turner factors. In Prison Legal News v. Columbia County,
In this case, Defendants assert that the Detention Center's two primary objectives in adopting the postcard-only policy in 2009 were to ensure safety and efficiency. Security and the safety of staff and inmates at the Detention Center is clearly a legitimate penological objective.
Defendants argue that the purpose of the postcard-only policy is to prevent smuggling contraband into the Detention Center and that the policy clearly rationally related to that end, particularly given the deference afforded to the Center's professional judgment. Defendants state that Detention Center staff are not concerned with the content of the correspondence and have no interest in stifling free expression. They contend the postcard-only policy is clearly rationally related to security by reducing the entry of contraband in incoming letter mail. They submit the affidavit of Lieutenant Barton, in which she states that the "Sheriff's Office determined that the postcard policy would allow it to deliver safer mail to the expanding number of inmates without having to increase staff."
Defendants, however, fail to present a credible explanation of how the postcard-only policy is more effective at preventing the introduction of contraband than the former policy of opening envelopes and inspecting the contents for contraband. Defendants do not state that there was a problems with contraband in letters. The Court finds the timing of Detention Center's change to its mail policy in March 2009, coincidental to the timing of other county jails
In the Columbia County
Defendants argue that the Court should not rely on the Columbia County
Defendants also assert efficiency as a legitimate penological interest behind the postcard-only policy. They argue that the postcard-only policy is more efficient because they reasonably believed that it offers a reduction in the time it takes to inspect mail for contraband and results in a net reduction in the overall processing time, saving Detention Center's resources. In support of their argument that the postcard-only mail policy is rationally related to efficiency, Defendants attach the affidavit of Lieutenant Barton.
Plaintiff argues that Defendants have not submitted evidence showing any impact on the Center's resources by the postcard-only policy. He also argues the Kansas Department of Corrections and thousands of other institutional around the country allow letters and this shows the burden of allowing letter mail to be minimal. He points out that if the Center had an average inmate stay of only 17 days, then how are inmates getting all the allegedly unsolicited mail Defendants claim. He also asserts that if the only difference between the process between a postcard and an envelope inspection is that the envelope has to be opened and searched inside and out, then it would not take much more than a few minutes to check a letter as opposed to a postcard for contraband. He hypothesizes that if it takes at least four officers six hours each day to open 147 pieces of mail, then that would mean it takes the officers almost ten minutes to open each piece of mail.
Defendants argue that Plaintiff vastly underestimates the time it takes to search a letter and the inside of an envelope in comparison with a postcard. An envelope has to be carefully opened, searched, sorted through, and put back together while a postcard only requires a surface inspection. Under the postcard-only policy, the staff were able to quickly analyze all non-preapproved, non-privileged mail, which saved them considerable time and reduces the chance of human error in the process, increasing the safety of the facility.
While safety and security are the legitimate penological interests most often advanced for a jail's postcard-only policy, the Court questions whether efficiency and conservation of jail resources is a legitimate penological interest under the Turner standard. The Supreme Court has identified traditional penological interests as institutional security, rehabilitation of prisoners, and deterrence of crime.
While the Court questions whether efficient jail management should be a legitimate penological interest that Defendants can advance for the postcard-only mail policy under the Turner factors, the weight of authority appears to recognize efficiency is a legitimate interest. Even if efficient jail management is a legitimate interest, however Defendants have not demonstrated that a logical, rational relationship exists between the Detention Center's postcard-only mail policy and efficiency. While the policy would reduce the amount of mail that would need to be opened and inspected, more staff time would be required to prepare the notices for the mail returned or rejected under the policy. It seems likely that more time would be spent by Detention Center staff rejecting mail and preparing a notice to the inmate than it would take to inspect the envelope and letter for contraband. Defendants have not provided any evidence as to the amount of time it would take a staff to open an envelope for inspection, as opposed to reviewing a postcard. Nor have they provided any evidence of how much time is spent by staff preparing notices for the mail rejected under the postcard-only policy, or the time spent checking to see if the letter has been preapproved.
Defendants attempt to use statistics to support their claim that the postcard-only policy is more efficient. Using Defendants' statistic of an average of 147 pieces of non-privileged mail per day for an average population of 650 inmates would not even amount to one piece of mail for each inmate. Instead, it would mean that roughly one out of every four inmates receives one piece of non-privileged mail each day. And, as Plaintiff points out, the average stay of an inmate at the Detention Center is 17 days. With such a transient population, it is unlikely that inmates would receive many non-privileged letters during their short stay.
The Court therefore concludes on balance that the postcard-only policy fails to satisfy the rational relationship factor under the Turner analysis. Even though the first Turner factor is mandatory,
The second Turner factor requires the Court to ask "whether there are alternative means of exercising the right that remain open to prison inmates."
Defendants argue that the option to request preapproval to receive non-postcard letters is a sufficient alternative. They argue that the Detention Center allows non-privileged letters if they are approved in advance.
Plaintiff argues that the process referenced by Defendants for an inmate to request approval for non-postcard letters is not a sufficient alternative because approval is for a one-time-only basis. Also, obtaining preapproval requires that the inmate know in advance of incoming mail from a particular person or organization. According to Plaintiff, it is therefore virtually impossible to obtain approval for non-postcard letters because inmates frequently do not know who or when someone will be sending them mail so that they can request preapproval in advance for the incoming letter.
Based upon a review of the Detention Center's Inmate Guidebook section for mail communication,
The postcard-only policy not only restrains the First Amendment rights of Plaintiff, it also inhibits rehabilitation. Plaintiff makes a valid point that family is an important part of the rehabilitative process and mail is very important to inmates and their families. It is particularly important to pretrial detainees to have good communication with family and friends as they are the ones who will help Plaintiff after he is released find employment, a place to live, transportation, and re-establish relationships, which all go toward the goal of rehabilitation. In Bezotte, although the court found the majority of the Turner factors favored upholding the jail's postcard-only policy, it was "mindful that the penal system is purposed for retribution and rehabilitation. The rehabilitation of inmates is as dependent on valuable contact with those on the outside as it is on the general penal experience on the inside."
In addition to foreclosing many forms of written communication, the Detention Center's postcard-only policy would certainly discourage family and friends from sending written communications to Plaintiff. Even if the sender was aware of the postcard-only policy, the sender would likely be discouraged from corresponding with the inmate due to the lack of space to write information on a postcard. The amount of information that can be written on a small postcard is significantly less than what can be written a standard eight by eleven inch piece of paper mailed in an envelope. Even more of a deterrent to a sender would be the lack of privacy from writing on a postcard. A sender would reasonably and obviously be deterred from writing about personal family matters, romantic relationships, health and medical treatment, finances, and legal matters, given that, when written on postcards, the information may be easily read by a number of people, both inside and outside the Detention Center. The Bezotte court noted in its analysis of the second Turner factor that "[r]equiring inmates and those on the outside to fit everything into a postcard—broadcasting all information contained on it to the world—robs the inmates and non-inmates of the meaningful expression that the Constitution protects."
Even though written correspondence is not completely foreclosed, the First Amendment rights of Plaintiff are severely curtailed under the Detention Center's postcard-only policy and there are no practical alternative means for exercising those rights. Accordingly, the second Turner factor supports the conclusion that the postcard-only policy unreasonably infringes upon Plaintiff's First Amendment rights.
The third Turner factor is the impact that accommodating the asserted constitutional right would have on guards, other inmates, and prison resources.
In Jones v. Salt Lake County,
In Ventura,
Here, the Court is not convinced that rescinding the postcard-only policy and allowing letters will have much, if any, "significant ripple effect" on staff and other inmates or the allocation of prison resources. Presumably, the Detention Center would just return to how it handled incoming non-postcard letters before 2009 when it implemented the postcard-only policy. With regard to allocation of prison resources, the Court finds that any time-savings resulting from the postcard-only mail policy, when factoring in staff time spent preparing notices of returned or rejected non-postcard mail, would likely be insignificant. Accordingly, the third Turner factor supports the conclusion that the postcard-only policy unreasonably infringes upon Plaintiff's First Amendment rights.
The fourth and final Turner factor is "whether obvious, easy alternatives exist that fully accommodate inmates' rights at de minimis cost to valid penological interests. If so, the regulation may not be reasonable but an `exaggerated response' to prison concerns."
The obvious and easy alternative to the postcard-only policy is to allow incoming non-privileged letters but inspect them for contraband, which was the Detention Center's mail policy before 2009. Defendants have made no showing that re-implementing its inspection system for letters would impose any inordinate safety or administrative costs. The Federal Bureau of Prisons, as well as many state correctional systems across the country, including the Kansas Department of Corrections, appear to allow letter mail without compromising security. Thus, opening letters and inspecting their contents is an easy and obvious alternative to the Detention Center's postcard-only policy. This suggests that the Detention Center's postcard-only policy is an exaggerated response to Defendants' claimed concerns about the smuggling of contraband in letter mail.
In summary, the Court concludes that the Detention Center's postcard-only policy, analyzed under the four Turner factors, is not rationally related to the legitimate penological interests asserted by Defendants and impermissibly infringes upon the First Amendment rights of Plaintiff.
Because the Court has found the Detention Center's postcard-only policy to be an impermissible infringement of Plaintiff's constitutional rights, the Court need not address the other related aspects of the mail policy that Plaintiff alleges are unconstitutional, i.e., the lack of adequate notice for returned mail or the lack of an appeals procedure for returned or rejected mail under the postcard-only policy.
Having found the Detention Center's postcard-only policy impermissibly infringes upon the constitutional rights of Plaintiff, the Court next addresses the relief sought by Plaintiff. Damages are available for violations of § 1983 "to compensate persons for injuries caused by the deprivation of constitutional rights."
In his Third Amended Petition, Plaintiff requests compensatory damages in the amount of $1,000 per letter for a total of $4,000 for the four rejected letters against each of Defendants Denning, Cortright, and Prothe. He requests punitive damages for the willful and wanton violation of his due process rights in the amount of $5,000 against each of these three Defendants. However, in the Pretrial Order, which supersedes Plaintiff's Third Amended Petition, Plaintiff requests compensatory damages in the amount of $26,000 against Defendant Cortright and $16,000 against Defendants Prothe and Denning. He requests punitive damages in the amount of $15,000 against Defendant Prothe and $16,000 against Defendants Cortright and Denning. Plaintiff submits no evidence regarding his claimed damages in his summary judgment motion or briefing. The Court will, therefore, defer ruling on the issue of Plaintiff's damages related to Count III and will take up that issue at the January 20, 2015 court trial.
In Plaintiff's final claim under 42 U.S.C. §1983, he alleges that his Eighth Amendment rights not to be subjected to cruel and unusual punishment, as well as his due process rights under the Fourteenth Amendment, were violated by Defendants Sheriff Denning and Deputies Prothe and Cortright by their actions in repeatedly waking him to take his one hour of daily allotted recreation time between the normal sleep hours of midnight and 5:00 a.m. Plaintiff argues that this is an inappropriate method of punishment on pretrial detainees. He also argues that forcing him to take his recreation time between midnight and 5:00 a.m. caused him to be sleep deprived and exhausted, which interfered with his ability to "think straight" and present his oral argument at his May 8, 2012 state court appearance.
Defendants admit that Plaintiff's sleeping conditions may not have been ideal while he was in 9-Side's disciplinary segregation, but such difficulties in operating a jail facility do not amount to a constitutional violation. They argue the Plaintiff has no protected constitutional interest in the time of day at which he is offered a recreation period, particularly, when he is on disciplinary reassignment in maximum security housing.
Because Plaintiff was a pretrial detainee at the time of the alleged incidents, the protections from cruel and unusual punishment under the Eighth Amendment apply to him through the due process clause of the Fourteenth Amendment. "Due process requires that a pretrial detainee not be punished prior to a lawful conviction."
The record reflects that Plaintiff was placed in 9-Side's disciplinary segregation in February 2012 pending investigation of the incident where he was found attempting to ferment alcohol in a trash can in his cell.
Regardless of the actual number of times that Plaintiff was forced to take his daily allotted recreation time between midnight and 5:00 a.m., the Court finds that Plaintiff has no protected constitutional interest in the time of day when he could take his recreation time. Defendants admit that inmates in 9-Side's disciplinary segregation receive their recreation time between midnight and 5:00 a.m., while inmates in administrative segregation receive recreation during day or evening hours. According to Defendants, 9-Side is used to house inmates, regardless of their classification, who would be inappropriate to house in the general population due to disciplinary issues or administrative reasons. They point out that the inmates housed in 9-Side are the most closely monitored because they pose a danger to the safety of themselves, other inmates and facility staff. Defendants have thus shown legitimate and non-punitive reasons for requiring Plaintiff to take his daily recreation time between midnight and 5:00 a.m.
Nor does the Court find that Plaintiff's allegations that he was forced to take his hour of allotted recreation time between midnight and 5:00 a.m. while he was in 9-Side's disciplinary segregation to constitute cruel and unusual punishment under the Eighth Amendment. These allegations are not objectively "sufficiently serious" to establish an Eighth Amendment claim, as they do not "result in the denial of the minimal civilized measure of life's necessities."
With regard to the case cited by Plaintiff and his argument that Dillard v. Pitchess
Plaintiff has also filed a third Motion for Appointment of Counsel (ECF No. 155). The Court has denied Plaintiff's two prior motions for the appointment of counsel.
As set out in the Court's prior Orders denying Plaintiff's motions for appointment of counsel, it is well settled that a party in a civil action, as opposed to a criminal action, has no right to appointment of counsel.
Reviewing Plaintiff's present motion, as well as his other pleadings filed to date, under the above-referenced factors, the Court finds that Plaintiff's third request for appointment of counsel should be denied. Plaintiff has been able to litigate his case without the assistance of counsel for well over two years. Plaintiff has thus demonstrated that he has sufficient ability to present and prosecute his claims, as evidenced by his filing a motion for summary judgment and responding to Defendants' motion for summary judgment. Plaintiff should be able to continue to litigate this case, including presenting evidence at the court trial supporting his remaining claim for retaliation and for damages on the postcard-only policy claim, without the assistance of counsel. Plaintiff's third motion for appointment of counsel is therefore denied.
Also pending before the Court is Plaintiff's "Objection of Magistrate Ruling" (ECF No. 149), which the Court construes as a motion for reconsideration of the Court's January 14, 2014 denial of his motion to continue the discovery deadline.
District of Kansas Rule 7.3(b) permits a party to file a motion seeking reconsideration of a non-dispositive order within 14 days after the order is filed. The motion to reconsider must be based on "(1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice."
The Court thus may grant reconsideration of a non-dispositive order if Plaintiff establishes one of the three enumerated grounds. Plaintiff argues that he submitted two discovery requests after the written discovery deadline. He had submitted the second one previously but never received a response. He asserts that both discovery requests are short, simple and very necessary for purposes of summary judgment, and he could not adequately argue without responses to them.
In this case, the Court finds that Plaintiff has failed to establish any grounds for granting reconsideration of the Court's denial of his motion for an extension of the discovery deadline. He has not pointed to an intervening change in controlling law, or any new evidence that he would have used to support his prior motion to extend the discovery deadline. Neither has he shown that reconsideration is needed to correct clear error or prevent manifest injustice. This case was removed to this Court on August 30, 2012. Plaintiff served his first request for production of documents on October 16, 2012 (ECF No. 35). Under the Scheduling Order, all discovery was to be served in time to be completed by November 29, 2013. After that deadline passed, Plaintiff served another set of Interrogatories and Request for Documents on December 17, 2013 (ECF No. 134). When Defendants objected that the requests were not served by the Scheduling Order deadline, Plaintiff then filed a motion to continue the written discovery deadline (ECF No. 138). Plaintiff had ample time to serve his discovery requests ahead of the discovery deadline. The fact that Defendants filed their motion for summary judgment and caused him to realize that he may need some additional discovery does not rise to the level needed for reconsideration. Plaintiff has not shown that reconsideration is needed to correct "clear error or prevent manifest injustice."
IT IS SO ORDERED.
