Human Rights Defense Center v. Baxter County

          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, ...