United States District Court, W.D. Arkansas, Harrison Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
On
January 30, 2019, the above-captioned matter came on for a
bench trial before the Court. Over the next three days, the
Court heard testimony from witnesses and received exhibits
into evidence. At the conclusion of the trial, the Court
directed the parties to submit post-trial briefing. Plaintiff
Human Rights Defense Center's (“HRDC”)
post-trial brief was submitted on February 15, 2019.
See Doc. 101. Defendant Baxter County's
(“the County”) post-trial brief was submitted on
March 1, 2019. See Doc. 102. At the same time that
HRDC submitted its post-trial brief, the County also filed a
motion seeking partial reconsideration of the Court's
Opinion on the parties' cross-motions for summary
judgment. See Doc. 99. HRDC's response in
opposition to that motion was submitted on March 1, 2019.
See Doc. 103. Having received and reviewed the
evidence and briefs submitted in this case, the Court issues
the following Memorandum Opinion and Order resolving the
County's new motion and setting out its findings of fact
and conclusions of law on the remaining claims.
I.
BACKGROUND
A.
FACTUAL BACKGROUND
HRDC is
a 501(c)(3) non-profit organization with principal offices in
Lake Worth, Florida. HRDC's purpose is to “educate
prisoners and the public about the destructive natures of
racism, sexism, and the economic and social costs of prisons
to society.” (Doc. 1, p. 3). HRDC “accomplishes
its mission through litigation, advocacy, and publication
and/or distribution of books, magazines and other information
concerning prisons and prisoner rights.” (Doc. 26-1,
p.1).[1] To accomplish its mission, HRDC publishes
and distributes Prison Legal News, a monthly legal
magazine which contains news about prisons, prisoners'
rights, and prison facilities and conditions, among other
things. In addition to its 72-page magazine Prison Legal
News, HRDC also publishes and distributes The Habeas
Citebook, books about the criminal justice system,
self-help books for prisoners, and informational packets that
contain subscription order forms and a book list. HRDC
distributes these mailings to monthly subscribers (civilians
and prisoners alike) and to prisoners in 2, 600 correctional
facilities across the county, including in Arkansas.
HRDC
alleges that the County[2] implemented and adhered to an
unconstitutional mail policy that prohibited the delivery of
HRDC's publication materials to prisoners at the Baxter
County Jail and Detention Center (“the Jail”). In
2012, the County adopted a new mail policy that requires all
non-privileged, non-legal incoming mail to be limited to
postcards. As a result of this policy, HRDC alleges that the
County refused to deliver issues and sample issues of
Prison Legal News, The Habeas Citebook,
informational packets, order forms, and court opinions sent
by HRDC to prisoners held in the Jail. HRDC alleges that the
County's actions violated its constitutional rights,
limited its ability to distribute its messages and obtain new
customers, and thereby frustrated its organizational mission.
B.
PROCEDURAL BACKGROUND
HRDC
initially sued the County alongside individual officers who
were allegedly instrumental in enacting the policy or in
rejecting HRDC's repeated mailings. It also sought a
preliminary injunction to enjoin continued enforcement of the
policy. However, in ruling on the Defendants' Motion to
Dismiss (Doc. 18) and HRDC's Motion for a Preliminary
Injunction (Doc. 26), the Court determined that the
individual capacity damage claims against these individuals
should be dismissed on the basis of qualified immunity
because the law governing HRDC's First and Fourteenth
Amendment claims was not sufficiently clear to put these
officials on notice that their actions were unconstitutional.
See Doc. 49. In addition, because of the unsettled
nature of the law in this area, the Court denied HRDC's
motion for a preliminary injunction.
A
little less than a month after the Court issued its ruling on
these two motions, the Eighth Circuit upheld a very similar
postcard-only policy against a First Amendment challenge in
Simpson v. County of Cape Girardeau, Missouri. 879
F.3d 273 (8th Cir. 2018). That decision prompted the
Defendants to file a renewed motion to dismiss (Doc. 50),
wherein they contended that the Eighth Circuit's decision
in Simpson sufficiently clarified the law to the
point that the Defendants were entitled to dismissal of the
Complaint. The Court construed the “motion to
dismiss” as a motion for judgment on the pleadings,
ultimately granting it in part and denying it in part.
See Doc. 53. As a result of that opinion and order,
the remaining official capacity claims were dismissed as
duplicative of the claim against the County, and those
individual officers were dismissed from the action.
On
November 2, 2018, HRDC and the County filed cross-motions for
summary judgment. HRDC contended that Simpson was
readily distinguishable and that the law as applied to the
facts of this case clearly demonstrated that the County's
adoption and enforcement of the postcard-only policy violated
its First Amendment rights. In addition, it contended that
the County's failure to send individual notices each time
one of its unsolicited mailings was rejected by the Jail
pursuant to this policy and its failure to allow HRDC to
challenge each individual rejection to another neutral
official amounted to due process violations under the
Fourteenth Amendment. The County, relying principally on
Simpson, contended that its postcard-only policy,
like the one upheld there, was constitutionally permissible
under the First Amendment. As to the Fourteenth Amendment
claim, the County contended that little or no process was due
when it rejected these unsolicited mailings. To the extent
that any process was due, the County contended that its
rejection notices were more than sufficient to put HRDC on
notice and that there was a statutory mechanism for bringing
claims against a county that HRDC should have used.
On
January 22, 2019, the Court granted in part and denied in
part each party's motion for summary judgment. In
particular, the Court denied the cross-motions for summary
judgment as to the First Amendment claims. Relying on the
language at the end of Simpson that its holding was
narrow and that each policy would have to be judged based on
the unique facts of each case, the Court found that there
were genuine disputes of material fact that would prevent the
Court from making a decision as to the constitutionality of
the policy at the summary judgment stage. As to the
Fourteenth Amendment claim, the Court surveyed the extensive
body of case law in this area governing what procedures must
accompany decisions to censor[3] mail, beginning with the Supreme
Court's landmark decision in Procunier v.
Martinez, 416 U.S. 396 (1974), overruled on other
grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). It
then ultimately concluded, in light of persuasive decisions
of the Fifth and Eleventh Circuits and dicta[4] from the Supreme
Court, that Procunier-style due process protections
(i.e. notice and an opportunity to appeal to a
neutral decision maker who was not involved in the initial
decision to censor) do not strictly apply when the rejection
in question results not from classic censorship (rejecting a
book based on something objectionable about its content), but
rather from the routine enforcement of a content-neutral rule
with general applicability.[5] See, e.g., Prison
Legal News v. Livingston, 683 F.3d 201, 223-24 (5th Cir.
2012).
Of
course, just because Procunier-style due process
protections do not apply does not mean that no process is
due. Adopting the Eleventh Circuit's approach of using
the test set forth in Mathews v. Eldridge, 424 U.S.
319 (1976), to determine how much process was due, this Court
held that in the case of the rejection of an unsolicited
mailing pursuant to a content-neutral, generally applicable
regulation like a postcard-only policy, the County must
provide notice of the rejection to the sender along with the
reason why the mailing was being rejected. The Court declined
to hold that due process allowed HRDC to appeal each decision
that its mailings (i.e. the 72-page magazines) were
not postcards to a second official, finding that the
justifications for such protection in the context of censored
mailings simply did not apply in this case and that the
burdens of imposing such a formal system far outweighed the
nature of the private interest that was affected.
See Doc. 89, pp. 20-24 (applying the
Mathews test).
Applying
this law to the undisputed facts, the Court granted summary
judgment in HRDC's favor for the mailings sent to
prisoners in the Jail on August 5, 2016. The Court found a
technical due process violation because although HRDC was
given notice that those items had been rejected, it was given
no reason for the rejection. The rejection notices merely
said “Refused.” However, the Court granted
summary judgment to the County for the mailings sent on
January 6th and 12th of 2017. Because these rejection notices
came with a reason for rejection (a USPS sticker that said
“Return to Sender Insufficient Address”), HRDC
received all of the process it was due. For similar reasons,
the Court granted summary judgment to the County for the
mailings sent on May 12th neutral policies and others
questioning whether due process even applies in this area
at all. See Doc. 89, pp. 18-20.and May 18th
of 2017, because the rejection notices accompanying these
mailings indicated to HRDC that they had been refused because
they were not postcards. As a result of those rulings, all of
the due process claims in this case were resolved, save for
the mailings sent between September 2016 and January 2017.
For these items, there was no indication in the record as to
the reason why they were rejected. However, after the Court
entered its order on summary judgment, HRDC advised that, in
light of the Court's ruling, it would no longer pursue
its due process claims as to any other items of mail that had
not already been ruled on by the Court. See Doc.
103, p. 3 (“Both parties agreed that the Fourteenth
Amendment claims, other than damages, had already been ruled
upon or abandoned. . . .”).
The
effect of all of these procedural events is that the matters
remaining for trial were 1) HRDC's First Amendment claim
and 2) damages for the limited, technical due process
violation the Court found regarding the August 5 mailings.
Immediately following the pre-trial conference, the parties
indicated to the Court that they wished to try these
remaining issues to the bench. As noted previously, a
three-day bench trial was held from January 30-February 1,
2019. The parties then each submitted post-trial briefs, and
the County submitted a motion for partial reconsideration of
the aforementioned order on the cross-motions for summary
judgment.
For the
sake of clarity, the Court below will first turn to the
County's post-trial motion for reconsideration. It will
then set forth its findings of fact and conclusions of law on
the First Amendment claim. Finally, it will consider damages.
II.
DISCUSSION
A.
The County's Motion for Partial Reconsideration of the
Court's Ruling on Summary
Judgment
Two
weeks after the bench trial ended and almost a month after
the Court issued its decision on the cross-motions for
summary judgment, the County moved for partial
reconsideration of the Court's ruling granting HRDC
summary judgment as to the due process claims for the August
5, 2016 mailings. It based its motion for reconsideration on
three arguments: 1) that there can be no due process
violation unless and until the Court has found a First
Amendment violation, 2) that there was no violative policy,
practice, or custom that can be charged to the County, and 3)
that HRDC has conceded that it received notice that its
mailings were being rejected because of the postcard-only
policy.
As an
initial matter, the Court agrees with HRDC that the
County's motion is procedurally improper. Summary
judgment is a pre-trial tool used to decide whether claims
should go to trial. It is not meant to be a post-trial motion
to rehash arguments that could have (and should have) been
raised earlier. That is why Rule 56 has a default rule
setting the time to file such a motion “at any time
until 30 days after the close of all discovery.”
F.R.C.P. 56(b). It is also why this Court set the deadline to
file such dispositive motions for November 2, 2018.
See Doc. 60.
The
County's motion is also an improper motion for
reconsideration of that opinion. For, while the Court has
found cases where a court sua sponte or upon motion
of the parties reconsidered an earlier ruling denying summary
judgment, those cases, without fail, have been ones where the
grounds for reconsideration had already been asserted in the
earlier motion. See, e.g., Conkling v.
Turner, 18 F.3d 1285, 1295-96 (5th Cir. 1994). They were
not, as they are here with the County's motion, almost
entirely new reasons for why the party believes that it is
entitled to summary judgment. Indeed, the County's
original brief in support of its motion for summary judgment
as to the due process claims spanned only a page. In that
page, the County asserted that HRDC had received all of the
process it was due when it was notified in subsequent
mailings that the reason for the rejection of the mail was
due to the postcard-only policy. See Doc. 72, p. 7.
In addition, it asserted that Arkansas law provided a
separate and sufficient method to assert claims against the
County. Id. It never asserted, until now, that it
believed that the Court could not find a due process
violation if it didn't first find a First Amendment
violation. Nor did it assert, as it does now, that there was
no policy, practice, or custom that could be charged to the
County. It would be one thing to bring the present motion had
trial testimony revealed new facts[6] that had made these theories
previously unknown. But, that simply is not the case.
As
such, the Court recognizes, in light of long-standing
authority in this circuit, the improper nature of the
County's new motion. See, e.g., Hagerman v.
Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)
(stating that motions for reconsideration cannot be used to
introduce new evidence or legal theories that “could
have been adduced during pendency of the summary judgment
motion.” (citation omitted)); Julianello v. K-V
Pharm. Co., 791 F.3d 915, 923 (8th Cir. 2015) (“A
motion for reconsideration is not a vehicle to identify facts
or legal arguments that could have been, but were not, raised
at the time the relevant motion was pending.”);
SPV-LS, LLC v. Transamerica Life Ins. Co., 912 F.3d
1106, 1111 (8th Cir. 2019) (citing Julianello, 791
F.3d at 922). For that reason alone, the County's motion
(Doc. 99) is DENIED.
But
even if the Court thought it was procedurally proper to
consider the County's motion now in light of what
transpired at trial, it would nevertheless still deny the
motion because the County's new[7] asserted reasons for
reconsideration are without merit. The County's first
argument is that due process rights are derivative in nature
and depend in part upon the recognition of a valid liberty
interest that has been deprived by the municipality's
conduct. Under the County's theory, the Court would first
have to find that the County's policies were
unconstitutional under the First Amendment (i.e.
that HRDC had a protected liberty interest in communicating
with prisoners on something larger than a postcard) before it
would need to consider the due process claim.
It is
true that a viable due process claim generally requires the
denial of a liberty interest without due process of law.
However, the County's argument misconstrues the law and
minimizes HRDC's liberty interest. The liberty interest
at issue here is the First Amendment right to communicate
with prisoners, an interest that has been consistently
recognized since the Supreme Court held in Procunier
that “the addressee as well as the sender of direct
personal correspondence derives from the First and Fourteenth
Amendments a protection against unjustified governmental
interference with the intended communication.” 416 U.S.
at 408-09. But, it is incorrect to say that the Court must
first find that the restriction in question violates the
sender's First Amendment rights before it can consider
whether the interference with the protected liberty interest
was accompanied by adequate procedural
safeguards.[8] The two are related, yet separate,
concepts. That is why numerous courts around the country have
found that due process protections apply even when the
underlying regulation is upheld under the First Amendment.
See, e.g., Prison Legal News v. Sec'y, Fla
Dep't of Corr., 890 F.3d 954, 957 (11th Cir. 2018)
(“After a bench trial, the district court ruled that
the impoundments do not violate the First Amendment but the
failure to give proper notice of them does violate the
Fourteenth Amendment. We agree.”); Martin v.
Kelley, 803 F.2d 236, 243-45 (6th Cir. 1986) (upholding
a mail policy against a First Amendment challenge but
nevertheless finding a Due Process clause violation).
The
County next argues that there was no policy, custom, or
practice that can be charged against the County. The root of
the County's argument is that the Jail's official
policy during the duration of this case was that mail
rejected pursuant to the postcard-only policy would be
stamped to reflect that this was the reason for its denial.
Indeed, the Sheriff testified that this was the policy,
[9] and
the video footage of the Jail inspection showed a Jail
official stamping rejected mail with a “Return to
Sender Postcards Only” message. Nevertheless, the
undisputed evidence is that despite the apparent policy, the
custom and practice of the Jail was NOT to uniformly mark
rejected items with this insignia. We know this because the
parties stipulated that all of the items of mail sent by HRDC
were refused because of the postcard-only policy.
Nevertheless, the first batch of rejected mailings did not in
any way indicate that their rejection was due to the
postcard- only policy. Moreover, Corporal Maple testified
during the trial that front office staff at the Sheriff's
main office would sometimes reject packages before they even
arrived at the Jail, where they could be stamped. Thus,
despite what the formal policy apparently dictated, the
evidence, both at summary judgment and during the bench
trial, was that the custom or practice of the Jail, at least
for the period in question until they began stamping items of
mail with the “Return to Sender Postcards Only”
stamp, was NOT to indicate the reason for the rejection.
A
custom or practice is enough under existing law to trigger
municipal liability. See, e.g., Monell v.
Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658,
690-91 (1978) (noting that “although the touchstone of
the § 1983 action against a government body is an
allegation that official policy is responsible for the
deprivation of rights protected by the Constitution, local
governments, like every other § 1983 ‘person'
by the very terms of the statute, may be sued for
constitutional deprivations pursuant to governmental
‘custom' even though such a custom has not received
formal approval through the body's official
decisionmaking channels”). HRDC has also established
that this custom or usage was “persistent and
widespread.” Davison v. City of Minneapolis,
Minn., 490 F.3d 648, 659 n.7 (8th Cir. 2007). Indeed,
the evidence at trial indicated that, for months,
[10]
the Jail rejected HRDC mailings, without giving any reason
for the rejection and by marking the packages only with
“Refused, ” all apparently in contravention of
official policy. Because there is no indication that anyone
other than a Baxter County official[11] made the decision to
reject these mailings, such evidence is sufficient to charge
the underlying violation (failure to give a reason for the
rejection decision) to the County. Indeed, in order to show a
“custom or usage, ” HRDC need only prove:
1) The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the governmental
entity's employees;
2) Deliberate indifference to or tacit authorization of such
conduct by the governmental entity's policymaking
officials after notice to the officials of that misconduct;
and
3) Th[e] plaintiff['s] injur[y] by acts pursuant to the
governmental entity's custom, i.e., [proof] that the
custom was the moving force behind the constitutional
violation.
Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646
(8th Cir. 1990) (citing Harris v. City of
Pagedale, 821 F.2d 499, 504-07 (8th Cir. 1987)).
In
addition to the evidence establishing the widespread custom
of County officials to return sent items without indicating
why they were being rejected, HRDC also adduced evidence that
the County tacitly authorized such conduct. From
Sheriff's office officials rejecting mail before it even
arrived at the Jail to the evidence that HRDC put the County
on notice of its complaints about the rejections, HRDC has
demonstrated tacit authorization of such unconstitutional
conduct by the County. Finally, the Court found that the
violation in question (not giving a reason for the rejection)
was directly caused by the custom or practice of not marking
returned items of mail with the reason for their return.
Thus, the proof established all three elements necessary for
Monell liability.
Finally,
the County contends that summary judgment is now appropriate
because HRDC conceded that it had notice of the reason for
rejection all along. The County contends that this is so
because the postcard-only policy had been posted on the
Sheriff's website and was therefore visible to all and
because Paul Wright, the Executive Director of HRDC,
testified that he had been on the Sheriff's website.
The
Court finds no evidence supporting the County's position
on this point. First, HRDC is correct that there is no
evidence in the record indicating that the text of the
postcard-only policy appeared on the Sheriff's website
back in August of 2016 when the County was rejecting
HRDC's mailings without giving reasons for the rejection.
Exhibit 18, a copy of the County's website where the
postcard-only policy is posted, also contains press releases
from 2018 and clearly therefore is not an accurate depiction
of how the website looked in August 2016. Moreover, while
Paul Wright indicated that he and his staff visited the
County's website, the testimony revealed that their
visits were to check the inmate rosters to ensure that the
person was still in custody before they mailed unsolicited
copies of their publications to those individuals. There is
no evidence that these rosters contained any reference to the
postcard-only policy, much less a link that would take
visitors to the specific portion of the webpage where the
policy was described. Finally, HRDC is also correct that the
press release announcing the new policy on the Sheriff's
website is ambiguous about the scope of the new postcard-only
policy. Indeed, while the policy says that “inmates of
the Detention Center will only be allowed to send and receive
post cards, ” it later says that “[a]ll personal
mail to and from relatives and friends will only be allowed
by means of a post card.” Thus, while the first
sentence arguably encompasses all senders, the later
reference to personal mailings could give senders such as
publishers like HRDC reason to doubt whether the policy would
be applied to them. Therefore, even if the Court assumes that
HRDC had specific knowledge of the postcard-only policy in
August of 2016 (a dubious prospect, at best), the wording of
this policy was not sufficiently clear to relieve the County
of its obligation to tell the sender of rejected mail the
specific reason why its mailings were being rejected. For all
of the aforementioned reasons, even if the Court thought it
procedurally proper to reconsider its prior order, it would
reject the County's arguments.
B.
The First Amendment Claim
As
noted at the outset of this Opinion, trial of this matter was
limited to the First Amendment claim and to damages. Having
heard the evidence and considered the relevant law and the
parties' post-trial briefs, the Court now issues the
following findings of fact and conclusions of law pursuant to
Rule 52 of the Federal Rules of Civil
Procedure.[12]
i.
Findings of Fact
HRDC
and Its Mailings
1. HRDC
is a not-for-profit, IRS section 501(c)(3) organization
incorporated in the state of Washington and with principal
offices in Lake Worth, Florida.
2.
HRDC's Executive Director, Paul Wright, founded Prison
Legal News[13] as a prisoner within the Washington
Department of Corrections.
3. HRDC
publishes a 72-page monthly magazine entitled Prison
Legal News, which provides information about legal
issues affecting prisoners, including self-help and
self-improvement, access to courts, disciplinary hearings,
prison and jail conditions, excessive force, and religious
freedom. A copy of one edition of the magazine submitted in
this case shows that besides these legal articles of interest
to prisoners, Prison Legal News also contains
advertisements for an assortment of products and services,
...