Another jail "postcard-only" mail policy ruled UNCONSTITUTIONAL: when will Arpaio come around?

Of course, no matter how many times this postcard only policy is found to be unconstitutional, Arpaio won't change his mail policy until the courts specifically make him do so, under a challenge. For those not aware, here are the basics of the MCSO mail policy:

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Inmate Mail

 
All incoming mail, with the exception of legal mail, must be standard postcards.
This is to ensure the safety and security of jail facilities, inmates, and staff.

Acceptable STANDARD Postcards

(Italics are mine)  

Written in blue or black ink only (no felt tip or roller balls - must be ballpoint!)
Metered or stamps (they'll just cut off the stamp and your message first, 

if you don't get the pre-stamped cards )

Minimum size requirements: 3.5 x 4.25 inches
Maximum allowable postcard size: 4.25 x 6 inches
Stamps are removed prior to inmate receiving mail

Unacceptable Postcards

 

Defaced or altered postcards
No plastics or wrappings on postcard
Postcards marked with paint, crayon or marker or ink (only black or blue ink is accepted)
Postcards with labels or stickers
Postcards with any biohazards, perfumes or lipstick
Postcards with watermarks or stains
Postcards depicting nudity, weapons or gang

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 Here's part of the 14-piece "birthday card" I had to send a girl who turned 17 this summer in Arpaio's solitary hell:

They usually lose one of my cards when I write long letters like this...as they did in this case, of course. Someone -  inside or out - needs to sue MCSO over this policy, or it just wont change. I hope they do soon.

Prison Legal News is an excellent resource for prisoners and their families, by the way. A single print subscription is only $35 a year, which is well worth it - it can save your loved ones life, so send it to them if you can. They also have a good selection of books - the Prisoner's Self-Help Litigation Manual ($39.95) is especially useful if your loved one keeps getting screwed by the system. 

Or download and print the National Lawyers Guild Jailhouse Lawyer's Handbook for free, then mail it in - I've sent hundreds of those in myself! Dont forget to connect them with the US District court if they are thinking about suing. Just because Parsons v Ryan is settled Corizon wont suddenly start treating everyone properly - they'll still only attend to those prisoners they absolutely HAVE to spend money on. So, prisoners need to know how and be prepared to actually file suit if they really plan to fight the DOC - bluffing will just get them hurt.

Here's the postcard-only ruling out of the State of Washington last month. Hooray for Prison Legal News!!!

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PRISON LEGAL NEWS, Plaintiff,

v. LEWIS COUNTY, et al., Defendants.

 Case No. 14-cv-05304 JRC.      

United States District Court, W.D. Washington, Tacoma.

September 10, 2014.

ORDER

J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction under 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Magistrate Judge Rule MJR 13. See also Joint Status Report, Dkt. 49 and Minute Order, Dkt. 50.


Prison Legal News seeks an injunction that would prohibit Lewis County Jail from restricting incoming and outgoing prisoner mail to postcards only. Dkt. 10. At various times, Lewis County Jail has chosen to enforce a policy imposing such a restriction and at other times has chosen not to enforce this restriction. Despite representing to the Court that it has changed its policy and is now allowing news sources to distribute both publications and other forms of correspondence to prisoners, there is substantial evidence to believe that this policy has not yet been adopted.

First Amendment rights are too important to be subject to such arbitrariness. When it comes to access to news and information, prisoners and those who correspond with them should be afforded the opportunity to send and receive mail, and if mail is refused by the Jail, prisoners and persons attempting to communicate with prisoners should receive notice and a fair and timely process for appealing the Jail's refusal to deliver the mail.


Therefore, this Court GRANTS plaintiff's motion for a preliminary injunction, as will be further delineated below.

BACKGROUND


Plaintiff Prison Legal News ("PLN") is published by the Human Rights Defense Center ("HRDC"), a Washington Non-Profit Corporation. Dkt. 1 at ¶ 3.1 HRDC's mission is public education, prisoner education, advocacy, and outreach in support of the rights of prisoners and in furtherance of basic human rights. Id. PLN publishes and distributes a monthly journal of corrections news and analysis, as well as books about the criminal justice system and legal issues affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the country. Id.


From September 2013 through October 2013, PLN mailed to prisoners of Lewis County Jail personally addressed envelopes containing informational brochures about subscribing to PLN, copies of a catalog of books that PLN offers for sale, detailed book offers, and court opinions. Dkt. 12 at ¶¶10-13, Exhibits A through SS (censored mail), Exhibits TT and UU (exemplars). The Jail rejected and returned the mail, totaling forty-five pieces of mail. Dkt. 12 at ¶¶12-13, Exhibits A through SS. On forty of the returned items, the Jail staff stamped "RETURN TO SENDER This facility accepts postcards only." Dkt. 12 at ¶¶ 12-13, Exhibits E through RR. On three items Jail staff stamped "Returned to Sender REASON CHECKED BELOW" with "Unauthorized Mail" checked or circled.

Dkt. 12 at ¶¶ 12-13, Exhibits B through D. On two of the items, Jail staff stamped both "RETURN TO SENDER This facility accepts postcards only" and "Returned to Sender REASON CHECKED BELOW" with "Unauthorized Mail" circled; and, on one of these double stamped items, Jail staff additionally stamped "RETURN TO SENDER.



UNDELIVERABLE AS ADDRESSED." Dkt. 12 at ¶¶ 12-13, Exhibits A and SS. The Jail also has rejected materials printed from PLN's website that were sent to a prisoner by a family member, such as one rejected in May, 2014. Dkt. 33 at ¶ 5, Exhibit B. The Jail rejects mail sent from family members and friends if not in postcard form. Dkt. 34, Exhibits 1-3.


Defendants indicate that the Jail adopted its official mail policy on February 3, 2010, and has officially adopted revisions as late as September 4, 2012. Dkt. 24, Exhibit 2. This policy restricts all ingoing and outgoing prisoner personal mail to postcards only. Id. at page 2. The policy also contains a "Publications" section that allows for the delivery of incoming soft covered magazines. Id. at page 3. The Jail has also presented a draft policy that it claims to have put into practice on June 2, 2014. Dkt. 71 at ¶ 2. This draft policy contains a separate section regarding publishers and publications providing that correspondence between publishers and prisoners will not be censored under the postcard-only policy. Dkt. 44, Exhibit 2 at page 2. Despite this assertion, defendants admit that this draft policy has not been widely disseminated nor officially adopted by the Jail. Dkt. 71 at ¶ 2; Dkt. 61, Exhibit 15 at page 18. The official policy of the Jail remains the policy discussed above that was adopted February 3, 2010 and revised as late as September 4, 2012. Dkt. 61, Exhibit 15 at page 18. Although this official policy contains a subsection under the section titled "Incoming Mail" that allows for the delivery of incoming soft covered magazines, it does not specifically address general correspondence between publishers and prisoners in any other form. Dkt. 24, Exhibit 2 at page 3. On its face, the correspondence PLN claims was wrongfully censored by defendants does not qualify under the publications subsection of the Jail's official policy and is therefore subject to the postcard-only restriction applied to all personal mail. Id. at page 2-3.


PROCEDURAL BACKGROUND


Plaintiff filed a Complaint on April 11, 2014, alleging that Lewis County Jail's post-card only rule violated PLN's and prisoner-addressees' protected free speech rights, as well as the free speech rights of others who correspond with, or attempt to correspond with, prisoners. Dkt. 1 at ¶¶4.13, 4.14, 4.36-4.39, 5.2. Plaintiff also alleges that when defendants rejected mail based on this post-card-only policy, Lewis County Jail failed to provide due process notice and opportunity for appeal to PLN and other senders and receivers of the rejected prison mail. Dkt. 1 at ¶¶4.18-4.21, 4.40-4.41, 5.6.


Plaintiff filed a motion for preliminary injunction on April 21, 2014, requesting that this Court enjoin the postcard-only rule and require notice and opportunity to be heard when mail is rejected. Dkt. 10. That matter is currently before the Court.

DISCUSSION


Standing. As a preliminary matter, plaintiff seeks to assert the First Amendment free speech rights and Fourteenth Amendment due process rights not only on its own behalf, but also on behalf of prisoners and other persons who send and receive mail to and from prisoners in the Jail. Dkt. 1 at ¶¶ 4.13, 4.16, 4.18, 4.19, 4.36-4.41, 5.2, 5.6; Dkt. 10 at page 2.


To satisfy standing requirements, a plaintiff must show: (1) that it has suffered an "injury in fact" that is "(a) concrete and particularized and (b) `actual or imminent, not `conjectural' or `hypothetical;''" (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is "`likely', as opposed to merely `speculative', that the injury will be `redressed by a favorable decision.'" See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (footnote and all citations omitted).


PLN has met each of these requirements. First, PLN has shown that the jail actually rejected mail sent by plaintiff to prisoners, and has set forth concrete and particularized examples of those rejections. Second, the action is fairly traceable to the Jail's postcard-only policy as the policy was in place at the time PLN's mail was rejected and was used as the basis for rejecting this mail. And, third, as will be discussed below, plaintiff has demonstrated that further injury will be redressed by a favorable decision on the merits. Although defendants assert that its postcard-only policy is no longer enforced, the policy remains in place and could be used again to reject mail if it chose to enforce the policy. Therefore, this Court concludes that plaintiff has standing to bring this motion for preliminary injunction on its own behalf. See id.


Further, plaintiff has standing to assert the rights of third parties who are not before the Court.

Under the overbreadth doctrine, a plaintiff "may challenge an overly broad statute or regulation by showing that it may inhibit the First Amendment rights of individuals who are not before the court." 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir. 1999) (citations omitted). The requirements to satisfy overbreadth standing are injury-in-fact and the ability to frame the issues in the case satisfactorily. Id. (citing Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984)).


First, the current official policy threatens the ability of those other than PLN to send information packs and other non postcard materials to prisoners while also failing to provide notice of the opportunity to appeal; and, such restriction has occurred, for instance, to a partner of a prisoner who shares a child with the prisoner (see Dkt. 34 at Exhibits 1 and 3) as well as to a mother of a prisoner (see Dkt. 34 at Exhibits 2 and 3). Thus, those other than PLN have been injured-in-fact.


Second, PLN is certainly able to frame the issues on behalf of prisoners and other correspondents. PLN has vigorously advocated on behalf of prisoners in previous litigation in this Circuit. See, e.g., Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005); Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001); Prison Legal News v. Columbia County, Dock. No. 3:12-CV-00071-SI, 2012 WL 1936108, 2012 U.S. Dist. LEXIS 74030 (D. Or. May 29, 2012) (unpublished opinion); see also Dkt. 34. Furthermore, PLN has offered multiple declarations from prisoners and their correspondents demonstrating that PLN has invested significant time in determining how the Jail's policy has affected prisoners and their correspondents. See Dkt. 30; see also Dkt. 34. Finally, PLN has framed its argument to address the allegedly overbroad nature of the mail policy's postcard-only restriction and lack of procedural due process safeguards while presenting specific alleged effects of the policy on prisoners and their correspondents in addition to the effect on PLN alone. PLN has demonstrated advocacy on behalf of prisoners and their other correspondents; and has demonstrated that it is able to represent adequately prisoners and their correspondents' interests in this litigation. Therefore, PLN has standing to assert the rights of the prisoners and other potential senders and recipients of prison mail.


While case law indicates that a free speech claim like plaintiff's is an appropriate setting for the application of the overbreadth doctrine, the doctrine does not appear to have been used by other courts to cover claims such as plaintiff's due process claims. The Supreme Court has "recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific reasons weighty enough to overcome our well-founded reticence." Sabri v. United States, 541 U.S. 600, 609-10 (2004) (citations omitted). Such settings include free speech, the right to travel, abortion, and legislation under § 5 of the Fourteenth Amendment. Id (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Stenberg v. Carhart, 530 U.S. 914, 938-46 (2000); City of Boerne v. Flores, 521 U.S. 507, 532-35 (1997)) (other citations omitted). The overbreadth doctrine should not be extended beyond these settings without good reason. Sabri, supra, 541 U.S. at 610. Nonetheless, the Court finds that the same evidence supports PLN's ability to properly frame both First and Fourteenth Amendment interests of prisoners and other correspondents. Additionally, PLN has indicated injury-in-fact arising from the violation of both its First and Fourteenth Amendment rights. Therefore, the Court concludes that the equal existence of these factors in regards to both constitutional rights, coupled with the already appropriate application of the overbreadth doctrine to plaintiff's free speech claim, constitutes good reason for extending the doctrine to plaintiff's Fourteenth Amendment due process claims as well. Plaintiff may assert these claims on behalf of prisoners and other correspondents whose mail is restricted by the Jail's postcard-only policy.


Mootness. Also as a preliminary matter, defendants claim that the several instances cited by plaintiff when its mail was rejected were isolated instances that were the result of one mail handler's misunderstanding and that these rejections will not likely happen again. Therefore, according to defendants, this matter is moot and should not be the subject of a preliminary injunction. "It is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. . . . . If it did, the courts would be compelled to leave `the defendant. . . . free to return to his old ways.''" Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 289 n.10 (1982) (citing United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))) (internal citations omitted).


A defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, supra, 528 U.S. at 189 (citing United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). Accordingly, a mere change in policy ante litem is not sufficient to moot a case unless it clearly shows that the alleged wrong will not reasonably recur.


Defendants have not met this heavy burden. For instance, defendants acknowledge that at the time of the incident, the Jail's policy had a postcard-only policy, but argue that it chose not to enforce it against PLN. Since PLN's mail was rejected on several instances, it is clear that the Jail's policy of not following its policy does not negate a potential impact on PLN in the future.

Defendants also argue that the draft policy will cure the problem. But, for unknown reasons, it has not yet been adopted. This fact, as well, leads the Court to conclude that it is not "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." See Friends of the Earth, supra, 528 U.S. at 189 (citing Concentrated Phosphate Export Assn., Inc., supra, 393 U.S. at 203).


Furthermore, even the draft policy presented by the Jail is problematic. It includes a "Publications/Other mail" section in addition to the categories of "Personal" and "Privileged" mail.

Dkt. 44, Exhibit 2. This newly drafted section suggests that "verifiable business, banks, publishers, etc. shall not be subject to postcard rules," but remains unclear about what organizations actually qualify under this exception. Dkt. 45 at ¶ 5, Exhibit 2 at page 2. This is particularly apparent where the next sentence of the same section offers a slightly expanded list of correspondents who might qualify under the exception including publishers, "verifiable business[es], government office[s], bank[s], book store[s], etc." Id. (emphasis added). This draft version of the new policy does far too little to alleviate concerns regarding the possibility that the Jail will reject mail from PLN or other correspondents in the future, including correspondents such as family and friends, whose rights are also being properly asserted by PLN, as noted above. Furthermore, defendants' assertion that the harm formerly done to PLN resulted from a "misunderstanding" of the current policy only increases concerns that this vague new section could be applied arbitrarily in the future.


Regarding PLN's due process claims, the draft policy includes a statement that rejected mail "will be returned to sender with a copy of the Notice of Withheld Material. The withheld material notice shall include contact information and direction for due process," and "[t]he inmate. . . . will receive a copy of the Notice of Withheld Material." Dkt. 45, Exhibit 2 at page 3. PLN claims that these measures are still inadequate safeguards of its own due process rights, the rights of prisoners, and the rights of other correspondents. The proposed policy does not facially require notice of the reason for rejecting the mail by Jail staff. See id. And, it vaguely addresses notice of an appeals process for those sending mail to prisoners, and neglects to indicate if prisoners will be able to appeal the censorship of their mail by Jail staff. See id. Furthermore, there is nothing in the policy that mentions notification or the right to appeal the rejection of outgoing mail by Jail staff. See id.


Accordingly, several areas of dispute remain unresolved. Defendants have not satisfied "the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." See Friends of the Earth, supra, 528 U.S. at 189 (citing Concentrated Phosphate Export Assn., Inc., 393 U.S. at 203). Therefore, this motion for preliminary injunction is not moot.


Because plaintiff has standing to assert its rights and the rights of third parties, and because this matter is not moot, the Court will now address the standards for granting a preliminary injunction, as set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because plaintiff is seeking a preliminary injunction regarding both the Jail's post-card only policy and the Jail's notice and appeals procedure for rejected mail, and those policies potentially impact separate constitutionally protected rights, the Court will deal with each policy separately.


Standards for preliminary injunction. A plaintiff seeking a preliminary injunction must clearly establish: (1) that plaintiff is likely to succeed on the merits, (2) that plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in plaintiff's favor, and (4) that the injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted); Fed. R. Civ. P. 65(a); cf. M.R. v. Dreyfus, 663 F.3d 1100, 1108 (9th Cir. 2011) (the Court may grant a preliminary injunction "if there is a likelihood of irreparable injury to the plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest"); The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008), overturned by Winter, supra, 555 U.S. at 22.


1. The Jail's postcard-only policy. The Jail's policy regarding personal mail states, in part, "Incoming and outgoing personal mail shall be postcard media only." Dkt. 24, Exhibit 2 at page 2. PLN alleges that defendants violated its free speech rights and those of other publishers and correspondents by limiting prisoner personal mail to postcards only and by rejecting informational brochure packs and court opinions that PLN mailed to prisoners in envelopes. Dkt. 1 at ¶¶ 4.13-4.14, 4.26-4.27, 4.33. The Jail's policy provides an exception for "Publications" as follows: "Publications are allowed for inmates. Publications must come directly from a publisher or approved book store and must be soft covered. Publications must be individually addressed." Dkt. 24, Exhibit 2 at page 3. The policy does not define a "publication," but it is clear that it was not interpreted by the Jail to include the informational brochure packets that plaintiff sent to prisoners and were rejected.


Under the first factor of the test in Winter, plaintiff has the burden of demonstrating that it is likely to succeed on the merits. See Winter, supra, 555 U.S. at 20. Prisoners and their correspondents have a First Amendment interest in sending each other mail. The Ninth Circuit has "repeatedly recognized that publishers and inmates have a First Amendment interest in communicating with each other." Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2010) (citing Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)).

Also, prison and jail walls do not "bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 94-99 (1987); Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974)) (internal citation omitted).


This First Amendment interest extends to receiving mail as well as sending it. "It is now well established that the Constitution protects the right to receive information and ideas. `This freedom [of speech and press]. . . . necessarily protects the right to receive. . . .'" Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citing Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Griswold v. Connecticut, 381 U.S. 479, 482 (1965); Lamont v. Postmaster General, 381 U.S. 301, 307-08 (1965) (Brennan, J., concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510 (1925)). Accordingly, plaintiff has a First Amendment interest in both sending correspondence to prisoners and receiving correspondence in return. Additionally, prisoners and their other correspondents share the same constitutional interest.


Notwithstanding the implication of a First Amendment interest, "restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system. . . ." Pell v. Procunier, 417 U.S. 817, 822 (1974). In Turner v. Safley, the Supreme Court determined that when prison regulations impinge on constitutional interests, the regulations are valid if "reasonably related to legitimate penological interests." 482 U.S. 78, 89 (1987), superceded by statute, 42 U.S.C. § 2000cc-1(a)(1)-(2), with respect to burdens on religious exercise, as stated in Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir. 2005) (citation and footnote omitted). The Court provided a four-factor test to evaluate "the reasonableness of a prison or jail regulation impinging on a constitutional right." Hrdlicka, supra, 631 F.3d at 1049. This test considers:


(1) whether the regulation is rationally related to a legitimate and neutral governmental objective, (2) whether there are alternative avenues that remain open to the inmates to exercise the right, (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.


Prison Legal News v. Lehman, 272 F.Supp.2d 1151, 1155 (W.D. Wash. 2003) (quoting Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, supra, 482 U.S. at 89-90)). Not only do these factors apply in evaluating regulations that govern prisoners' right to receive mail, but they also apply to regulations affecting correspondents' "rights to send materials to prisoners." Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Thornburgh, supra, 490 U.S. at 413).


The first Turner factor requires this Court to determine if the postcard-only policy is rationally related to a legitimate and neutral governmental objective. See Turner, supra, 482 U.S. at 89-90 (citations omitted). Defendants assert that the postcard-only policy is aimed at improving jail security by reducing the importation of contraband, the amount of resources spent screening mail, and prisoner misuse of the mailing system. Dkt. 25 at ¶¶ 3, 4. Prison security is undeniably a legitimate penological objective. See Thornburg, supra, 490 U.S. at 415. The policy also is neutral because it draws a distinction between postcards and other forms of mail "solely on the basis of their potential implications for prison security. . . ." Id. (footnote omitted).


The burden of showing a rational relationship lies with defendants, and is initially satisfied by presenting an "intuitive, common-sense connection" between the objective and the regulation. Frost v. Symington, 197 F.3d 348, 354, 356-57 (9th Cir. 1999). If PLN is able to show sufficient evidence refuting the connection, defendants must additionally present enough evidence "to show that the connection is not so `remote as to render the policy arbitrary or irrational.'" Id. (quoting Mauro v. Arpaio, 188 F 3.d 1054, 1060 (9th Cir. 1999) (quoting Turner, supra, 428 U.S. at 89-90 and Amatel v. Reno, 156 F.3d 192, 200-01 (D.C. Cir. 1998))).


Here, defendants indicate that "[i]t is simply more effective to visually scan a postcard for contraband and other issues than it is to scan a closed envelope, remove its contents, and review the same for all of the issues of which our staff has to be aware. . . ." Dkt. 25 at ¶ 10. Such issues include concerns about materials like anthrax, weapons, secreted drugs, coded messages, or even bodily fluids being sent through the mail. Id. at ¶¶ 2, 3. Additionally, defendants indicate that the postcard-only policy reduces the time that staff spends screening mail by half. Id. at ¶ 4. This showing sufficiently establishes a common-sense connection between the postcard-only policy and the asserted objective. This factor weighs in favor of defendants.


The second Turner factor considers whether or not "`other avenues' remain available for the exercise of the asserted right." Turner, supra, 482 U.S. at 90 (citations omitted). In evaluating this factor, alternative means need not be ideal, but they must be reasonably available. See Overton v. Bazzetta, 539 U.S. 126, 135 (2003). Nonetheless, "`the right' in question must be viewed sensibly and expansively." Thornburgh, supra, 490 U.S. at 417 (citing Turner, supra, 482 U.S. 78; O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). Defendants contend that alternate avenues exist to exercise free speech rights because other channels remain open for contacting prisoners, like sending emails, making phone calls, or utilizing regular visitation. See Dkt. 45 at ¶¶ 9, 11.


On this point, the facts indicate otherwise. The postcard-only policy, on its face, prevents PLN from sending materials that are not easily transferable to a postcard, such as court opinions and informational packets. PLN has shown that the information included in these mailings cannot be formatted to fit onto a postcard. Dkt. 12 at ¶ 17, Exhibits TT, UU. For this reason and due to PLN's necessary reliance on such materials to secure new subscribers and its continued vitality, the barriers implicated by the policy are not an insubstantial hardship. See id.


The policy also prevents family members from sending items like photographs, copies of bills, and medical information. See, e.g., Dkt. 34. None of these things can be easily replaced by telephone calls or regular visitation. It has been recognized that such communication with family and friends "advances rather than retards the goal of rehabilitation. . . ." Procunier v. Martinez, 416 U.S. 396, 412-13 (1974) (quoting Policy Statement 7300.1A of the Federal Bureau of Prisons (the policy "recognized that any need for restrictions arises primarily from considerations of order and security rather than rehabilitation: `Constructive, wholesome contact with the community is a valuable therapeutic tool in the overall corrections process'"); Policy Guideline of the Association of State Correctional Administrators of August 23, 1972 (the policy guideline "echoes the view that personal correspondence by prison inmates is a generally wholesome activity: `Correspondence with members of an inmate's family, close friends, associates and organizations is beneficial to the morale of all confined persons and may form the basis for good adjustment in the institution and the community'")) (footnote omitted), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401, 407, 413-16, 419 (1989) (noting the "undoubtedly" legitimate claim to prison access by "families and friends of prisoners who seek to sustain relationships with them") (citations omitted).


The postcard-only policy drastically reduces prisoners' and other correspondents' ability to communicate. It is more than a mere inconvenience and becomes a substantial barrier to First Amendment rights. Incarceration does not "form a barrier separating prison inmates [or free citizens] from the protections of the Constitution. . . ." Thornburgh, supra, 490 U.S. at 407 (citing Turner, supra, 482 U.S. at 84, 94-99; Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974)). Accordingly, the second Turner factor favors PLN as "`the right' in question must be viewed sensibly and expansively." Id. at 417 (citing Turner, supra, 482 U.S. 78; O'Lone, supra, 482 U.S. 342).


The third Turner factor considers the impact that "accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Turner, supra, 482 U.S. at 90. Because of the high likelihood that even the smallest changes will have some "ramification of the liberty of others or on the use of the prison's limited resources[,]" this third factor weighs most heavily when "accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff." Id. Also, "the policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction." Martinez, supra, 416 U.S. at 414 n.14, overruled on other grounds, Thornburgh, supra, 490 U.S. 401; see also Morrison v. Hall, 261 F.3d 896, 905 (9th Cir. 2001) (citing Martinez, supra, 416 U.S. at 414 n.14, overruled on other grounds, Thornburgh, supra, 490 U.S. 401).


Defendants state that the postcard-only policy reduces by half the time that staff members spend screening mail, but PLN aptly raises important questions concerning the actual amount of time that is saved. Compare Dkt. 25 at ¶ 4 with Dkt. 34 at ¶¶ 11-12. PLN questions the methods by which this figure was obtained. Dkt. 34 at ¶¶ 11-12. Also, PLN contends that the time necessary to review the mailing, mark the reason for its rejection, and attach a notice regarding an option to appeal the decision arguably would be no greater than the time necessary to open and inspect the contents of the envelope for contraband and send it on to the intended recipient. Defendants' assertion regarding the impact on its budget is simply not well documented nor supported by substantial quantitative and qualitative evidence. Instead, it seems to be based entirely on conjecture, rather than analysis and evidence. Therefore, without more, this Court cannot ascribe substantial weight to this assertion. Accordingly, the third Turner factor supports PLN's argument because defendants have failed to demonstrate that accommodating these First Amendment rights will have a significant impact on other guards and prisoners or on the allocation of prison resources.


In addition, PLN also has identified numerous prison and jail systems that do not enforce a postcard-only policy, but instead perform mail inspections, as Lewis County Jail has done in the past. Such systems include the Washington Department of Corrections ("WDOC"), the Bureau of Prisons, King County Jail, Pierce County Jail, and Spokane County Jail. Dkt. 10 at page 18. In contrast, defendants indirectly refer to two jail systems that likewise employ postcard-only policies. See Dkt. 22 at pages 3, 10-11. However, the prevalence of the alternative policies allowing for enveloped mail among "well-run institutions" suggests that postcard-only policies do not increase efficiency enough to result in their widespread adoption.


The final Turner factor addresses if "the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials." Cook, supra, 238 F.3d at 1149 (citing Turner, supra, 482 U.S. at 89-90). This factor should not be mistaken for a least restrictive alternative analysis; prisons need not always adopt the least restrictive alternative. See Turner, supra, 482 U.S. at 90-91 (citations omitted). However, courts may consider "an alternative that fully accommodates the [asserted] rights at de minimis cost to valid penological interests" as evidence that the policy unreasonably infringes upon First Amendment rights. Id. at 91.


As discussed above, PLN has indicated that simply opening and inspecting enveloped mail is a ready alternative to Lewis County Jail's postcard-only policy. This was the policy employed previously by Lewis County Jail and the Jail has reported no incidents of misconduct where the resulting danger would have increased had the jail allowed envelopes and letters. Also, defendants have failed to show that inspecting enveloped letters instead of outright rejecting them will be difficult or will result in an undue burden on administrative costs. The fact that systems like the Bureau of Prisons, the WDOC, and large county jails in the immediate region all accommodate enveloped mail without compromised security evidences that the postcard-only policy is an exaggerated response to the potential dangers that accompany the postal service.

Dkt. 10 at 18; see Morrison, supra, 261 F.3d at 905 (finding that alternative "policies followed at other well-run institutions" evidenced that easy and obvious alternatives existed to the challenged regulation) (citations omitted). In light of these other institutions', and Lewis County Jail's own successful past use of a letter inspecting policy, the fourth factor suggests that the postcard-only policy is an exaggerated response by prison officials, thus weighing in favor of PLN's position.


In summary, although defendants succeed in stating a "rational" relationship between the postcard-only policy and legitimate penological interests, the remaining Turner factors weigh heavily in favor of PLN. This "rational" relationship is insufficient to justify such a substantial barrier on First Amendment rights. Therefore, plaintiff has demonstrated that it likely will succeed on the merits of its First Amendment claims, satisfying the first prong of the Winter test. See Winter, supra, 555 U.S. at 20.


Under the second prong in Winter, plaintiff has the burden of proving that it is likely to suffer irreparable harm in the absence of preliminary relief. Winter, supra, 555 U.S. at 20. To meet this burden, it is well recognized that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrods v. Burns, 427 U.S. 347, 373 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971) (footnote omitted)); see also Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009). However, the fact of past injury, while presumably affording a plaintiff standing to claim damages, "does nothing to establish a real and immediate threat that he would again" suffer similar injury in the future. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).


As discussed above, see supra, Mootness section, the proposed change in the Jail's policy does too little to alleviate the Court's concerns regarding the possibility that the Jail will reject mail from PLN or other correspondents in the future. Due to the vagueness of the policy in regards to who qualifies as a "publisher/other," the policy on its face could be applied differently to nearly identical organizations resulting in the arbitrary denial of plaintiff's right to free speech.

Additionally, other personal mail remains restricted to postcards only, preventing communications between prisoners and family or other correspondents. Therefore, this Court concludes that the Jail's postcard-only policy is likely to cause further irreparable injury in the future.


The third Winter test, that the balance of equities tips in plaintiff's favor, is very similar in application to the weighing of interests that the Court already has conducted under Turner. Compare Winter v. Natural Res. Def. Council, Inc., supra, 555 U.S. 20 with Turner v. Safley, supra, 482 U.S. at 89-91. Therefore, the Court simply notes here that analysis of the postcardonly policy under the Turner factors establishes that the balance of equities tips in favor of plaintiff. Considering that the Jail previously has allowed enveloped mail, and due to a lack of evidence showing that a return to this policy would cause inordinate harm or difficulty, the Court concludes that the Jail's postcard-only policy cannot justify the dramatic impact on plaintiff's, prisoners', and other correspondents' First Amendment rights.


The final test under Winter is whether or not the injunction is in the public interest. Winter, supra, 555 U.S. at 20. "The public interest primarily addresses [the] impact on nonparties rather than parties." Sammartano v. First Judicial Dist. Court, in & for County of Carson City, 303 F.3d 959, 974 (9th Cir. 2002), overruled on other grounds, Winter, supra, 555 U.S. at 22. Here, an injunction would not only benefit PLN, but it also would directly benefit other publishers similarly situated as well as other members of the public who wish to communicate with prisoners through written correspondence. Additionally, because communication with family and friends "advances rather than retards the goal of rehabilitation," such an injunction would benefit the public generally. Martinez, supra, 416 U.S. at 412-13 (footnote and quotations omitted), overruled on other grounds, Thornburgh, supra, 490 U.S. at 407 (noting the "undoubtedly" legitimate claim to prison access by "families and friends of prisoners who seek to sustain relationships with them") (citations omitted).


In summary, plaintiff has satisfied each of the prongs set forth in Winter, and is therefore entitled to an injunction regarding the postcard-only policy. The Court still needs to address the form of such an injunction. Plaintiff proposes that this Court order a mandatory injunction. "`A mandatory injunction orders a responsible party to take action,' while `[a] prohibitory injunction prohibits a party from taking action and preserves the status quo pending a determination of the action on the merits.'" Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 2014 U.S. App. LEXIS 12746 at *13-*14 (9th Cir. 2014) (citing Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (internal quotation marks and alteration omitted), overruled on other grounds, Winter, supra, 555 U.S. at 22; see also Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 997-98 (9th Cir. 2011)). In the context of an injunction, "the `status quo' refers to the legally relevant relationship between the parties before the controversy arose." Id. at *13 (citing McCormack v. Hiedeman, 694 F.3d 1004, 1020 (9th Cir. 2012)). Policy changes in response to litigation are an affirmative change of the status quo. See id. ("By revising their policy in response to DACA, Defendants affirmatively changed this status quo. The district court erred in defining the status quo ante litem. . . .").


The Court has been provided several options by the parties. Rather than delineating all aspects of a mail policy, the most straight forward approach is simply to prohibit that which is unconstitutional. Therefore, the Court preliminarily enjoins defendants from restricting incoming and outgoing prisoner mail to postcards only, and orders defendants not to refuse to deliver or process prisoner personal mail on the ground that it is in a form other than a postcard. Any policy or practice that does not conform with this restriction is enjoined during the pendency of this action or until further order of this Court.

2. The Jail's notice and appeals procedure for rejected mail.


Plaintiff further alleges that by rejecting mail without providing information regarding a right to appeal, defendants violated plaintiff's, prisoners', and other correspondents' Fourteenth Amendment rights to due process. Dkt. 1 at ¶5.6. Plaintiff seeks to obtain an injunction delineating the due process procedure to be followed by defendants during the pendency of these proceedings. Dkt. 10 at pages 20-24.


In order to protect the Fourteenth Amendment rights of prisoners and their correspondents, "the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards." Martinez, supra, 416 U.S. at 417, overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). Inmates have "a Fourteenth Amendment due process liberty interest in receiving notice that [their] incoming mail is being withheld by prison authorities." Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999) (citations omitted).

A preliminary injunction regarding the Jail's notice and appeals procedures will be granted if plaintiff in the due process context satisfies the four part test set forth in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Therefore, the following discussion sets forth this Court's analysis of those factors as they relate to plaintiff's Fourteenth Amendment due process claim.


Under the first prong of Winter, plaintiff has the burden of demonstrating that plaintiff is likely to succeed on the merits. See Winter, supra, 555 U.S. at 20. It is axiomatic that due process is adversely impacted by vague policies or disparate enforcement of those policies. See, e.g., Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966) ("the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs. . . . Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce"). And, it is problematic that the Jail's notice and appeal procedure is unclear.


A policy is set forth in POL 05.07.050, which states in part:


The Administrative Lieutenant may authorize restrictions of incoming or outgoing mail when the correspondence is deemed to be a threat to the legitimate penological interest of the facility. The Administrative Lieutenant shall provide written notification to both inmate and sender identifying the reason for the restriction, and advise both of their right to request a review. Staff shall accept a written request for review within ten days of initial notice. The Jail Administrator shall review the restriction and respond in a reasonable amount of time. . . .

Dkt. 12, Exhibit 2, Wright Declaration, Exhibit VV to Wright Declaration at page 3.


Plaintiff argues that defendants failed to comply with this policy, that the policy fails to define "threat to the legitimate penological interest," and that the policy is confusing and provides no information regarding how to obtain the stated review. Dkt. 10 at pages 21-22.


Another mail policy indicates that prisoners and their correspondents must be notified of the rejection by Jail staff of incoming mail, but that policy remains silent regarding outgoing mail rejected by Jail staff. Dkt. 45, Exhibit 2 at page 3. It states that if incoming mail is rejected for cause, it will be returned to the sender with a copy of the Notice of Withheld Material and shall include contact information and directions for due process. See id. Copies of this notice will be sent to the intended prisoner recipient. See id. The same procedure does not apply to outgoing mail rejected by Jail staff and no appeals procedure for prisoners is set forth in the policy. See id.


Defendants claim that the grievance policy contained in the Inmate Manual satisfies all of plaintiff's due process concerns. Dkt. 22 at page 11 (citing Dkt. 25, Exhibit 2). That Manual is for prisoners only, and not for other non-prisoner correspondents. The Manual does not refer specifically to the procedure that should be followed if mail is rejected, nor what notice is required, although it indicates that prisoners will be provided a written explanation when incoming mail (only) is rejected and instructs prisoners that they can appeal "to the Administration Lieutenant through the kiosk (GT) system." See Dkt. 25, Exhibit 2 at pp. 9-11. Defendants have not clarified how this manual is applied to rejected mail and has not clarified whether or not prisoners are given any notice of the Jail refusing to send their mail. See id.


Plaintiff argues that because of the disparate policies and procedures "the Jail's mail staff will be left to use unfettered discretion to apply the confusing and inconsistent policy according to their own interpretations." Dkt. 10 at p. 22. And, that appears to be exactly what occurred here. The Jail applied different stamps, advising the senders of different objections to the same types of mail. See Dkt. 12 at ¶¶ 12-13, Exhibits A through SS. None of the notices provided information to plaintiff of the procedure for appealing the rejections. Id. And, plaintiff has submitted evidence that prisoners were not given any notice that their mail had been rejected or that mail from the outside was not getting in. See Dkt. 32, Exhibit 3 at page 4. This is simply insufficient.


In Martinez, the Supreme Court affirmed an order by a district court that "required that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence." Martinez, supra, 416 U.S. at 418-19, overruled on other grounds, Thornburgh, supra, 490 U.S. 401.

Non-prisoner correspondents also have a constitutional interest in communicating with prisoners. See id.; Thornburgh, supra, 490 U.S. at 407 (prison and jail walls do not "bar free citizens from exercising their own constitutional rights by reaching out to those on the `inside'") (citations omitted). Therefore, plaintiff has satisfied this Court that the Jail's policies and practices of notifying senders and recipients of prison mail are unclear and irregularly applied. As such, the Court finds that plaintiff is likely to prevail on this issue and that the Jail's policy as applied is unconstitutional.


As set forth previously, under the second prong in Winter, "an alleged constitutional infringement will often alone constitute irreparable harm." Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Associated General Contractors v. Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991), overruled on other grounds, United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996) (quoting Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984) (citing Wright & Miller, 11 Federal Practice and Procedure § 2948 at 440 (1973))). Due process, as guaranteed by the Fourteenth Amendment, cannot be protected by vague and irregularly applied policies and procedures. The threat of this continuing harm sufficiently satisfies this element of the Winter test. See Winter, supra, 555 U.S. at 20; see also Elrods, supra, 427 U.S. at 373 (citing New York Times Co., supra, 403 U.S. 713 (footnote omitted)); Klein, supra, 584 F.3d at 1207-08.


Regarding the third prong in the Winter test, the Court concludes that the balance of equities tips in plaintiff's favor as to prisoners and those sending correspondences to prisoners. Defendant has made no attempt to argue that it would be burdensome to provide sufficient notice to prisoners. In fact, it argues that it is already doing so, despite plaintiff's evidence to the contrary. Nor have defendants argued that providing sufficient notice to persons whose mail is rejected would be an unreasonable burden; instead arguing that they, too, receive this notice, despite the evidence to the contrary.


However, defendants have articulated good reasons for not being required to notify persons who do not receive rejected mail from prisoners. As to those persons, the Jail argues persuasively that if a prisoner attempts to send a message that would violate a restraining order or potentially lead to harmful actions taken by others, a requirement that the Jail notify the intended recipient of the attempted contact would defeat the entire purpose of screening the dangerous mail in the first place. See Dkt. 44 at ¶ 4.41. As to those persons, the Court agrees that the balance of hardships does not tip in favor of plaintiff. Because it is difficult to determine which potential non-prisoner recipients may benefit from notice, and because prisoners' due process rights can be adequately protected by providing them notice, the Court will not require that the Jail inform the intended recipients that prisoners' mail to them has been rejected.


Except as to those intended recipients of prisoners' mail, under the forth Winter test, the public interest is well served by requiring the Jail to provide notice and a clear appeals process to prisoners of both rejected incoming and outgoing mail, as well as to non-prisoner correspondents whose mail is rejected.


Rather than attempting to write jail policy, this Court will delineate the parameters of a constitutionally acceptable policy. First, the Jail must notify a prisoner when it rejects correspondence written by or addressed to the prisoner. This notification, at a minimum, will set forth the reason the mail was rejected, and the procedure to follow if the prisoner wishes to appeal the rejection. Second, the Jail must notify a non-prisoner correspondent if the nonprisoner correspondent's mail is rejected. Such notification, at a minimum, will set forth the reason mail was rejected, and the procedure to follow if the non-prisoner correspondent wishes to appeal the rejection. Third, any appeal of rejected mail will be referred to a jail official other than the person who originally rejected the correspondence.


ACCORDINGLY, IT IS HEREBY ORDERED that for the duration of plaintiff's lawsuit, the Court:

1. PRELIMINARILY ENJOINS defendants from restricting incoming and outgoing prisoner mail to postcards only, and orders defendants not to refuse to deliver or process prisoner personal mail on the grounds that it is in a form other than a postcard.


2. PRELIMINARILY ENJOINS defendants from rejecting mail to or from prisoners without providing notice to the prisoner. This notification, at a minimum, will set forth the reason the mail was rejected and the procedure to follow if the prisoner wishes to appeal the rejection.


3. PRELIMINARILY ENJOINS defendants from rejecting mail from nonprisoner correspondents without providing notice to the non-prisoner correspondent. This notification, at a minimum, will set forth the reason the mail was rejected, and the procedure to follow if the non-prisoner correspondent wishes to appeal the rejection.


4. PRELIMINARILY ENJOINS any appeal of rejected mail that is not referred to a jail official other than the person who originally rejected the correspondence.

Pink underwear kills: Sheriff Joe settles with family of Eric Vogel.

Whatever BS rationalization Arpaio uses for employing the color pink in his jails, its used in an overtly misogynistic, homophobic way - to humiliate the male prisoners, mainly. His policies and practices around the dressing of prisoners not only perpetuates harmful stereotypes, at the very least; the forced dressing in "feminine" clothes  even terrified Eric Vogel to death. Too bad they didn't challenge the constitutionality of Arpaio's treatment of all prisoners, at the same time, as this settlement doesn't set any precedent that could force Arpaio to change policies.  Shame on the Maricopa County voters who have fueled that idiot's fires and kept him in power. I hope Eric Vogel's family get millions.

The lawyers in this case were Robbins and Curtin, if you need one to sue either the MCSO or the State of Arizona on behalf of a victim of police or prison violence. They often win.

Joe Arpaio's armored car stalked and chalked

at the PHOENIX 2012 Veterans Day Parade

------------------------

Arizona pink underwear inmate case to be settled: lawyer

Chicago Tribune 

September 8, 2014

(Reuters) - An attorney for the estate of a mentally ill inmate who sued an Arizona county after being forcibly dressed in pink underwear by jail officers said on Monday they will settle the case.

Lawyers for Eric Vogel's estate and the county of Maricopa told the court on Friday both sides had reached an agreement, plaintiff attorney Joel Robbins said. Robbins declined on Monday to provide further detail on the settlement, which needs to be approved by county officials.

The pink underwear for male jail inmates policy is a controversial part of firebrand Maricopa County Sheriff Joe Arpaio's anti-crime policies. The sheriff was listed as a defendant in the case, which was filed in April 2007.

Officers arrested Vogel in November 2001 for assaulting a policeman. Health workers at the jail determined Vogel had mental problems and needed psychiatric care, court records show.

The inmate resisted the pink underwear policy at the jail, and screamed that the officers who held him down and forcibly dressed him were raping him, according to court documents.

"The fact that they had wrestled this man, screaming that he was being raped, those are the things that kind of added up to what we believe was deliberate indifference," Robbins said.

Vogel died of acute cardiac arrhythmia weeks later, after running miles from the scene of a minor car accident, fearing that he would be arrested again, court documents show.

The county is scheduled to hold a board of supervisors meeting on Wednesday to discuss the agreement, according to court records.

In 2012, the federal 9th U.S. Circuit Court of Appeals ruled that Arpaio's policy may be unconstitutional when applied to prisoners who had not been convicted of a crime.

Two members of a three-judge appeal panel raised the issue while ruling for the majority in a related lawsuit against Arpaio and Maricopa County. But they stopped short of striking down the underwear practice, saying it had not been formally challenged by plaintiffs in the case.

Writing for the majority, a 9th Circuit judge said that the U.S. Supreme Court allowed jail officials to use unpleasant measures so long as they served a legitimate purpose, such as the safety of the institution.

But he noted the Supreme Court also ruled that arbitrary requirements may be construed as punishments, which could not be imposed on people who had not been found guilty of a crime.

Arpaio has come under fire by the U.S. Justice Department for a crackdown on illegal immigration that the government said involved racial profiling.

(Reporting by Curtis Skinner in San Francisco; Editing by Daniel Wallis and Sandra Maler)

Justice for Deborah Braillard: Change the Victim's Bill of Rights.

These jail and health care "professionals" from Correctional Health Services should have been criminally prosecuted for their treatment of Deborah Braillard. This is one more reason we need to change the Victims' Bill of Rights in the AZ Constitution to stop exluding prisoners as victims. "Persons in custody for an offense" (and their survivors, if they are killed in the care of cops or corrections officers) are the only class of humans denied those basic rights and protections. 

State entities and predatory corporations like Wexford Health Sources can claim "victim" status if anyone so much as trespasses against them, but prisoners - including people in custody who are not yet convicted or charged - don't have legal status as victims of their criminal misdeeds. We need to change that, people...

--------from the AZ Republic-----

Maricopa County agrees to settle suit tied to inmate death

by JJ Hensley, and Michelle Ye Hee Lee - Oct. 4, 2012 08:16 PM

Maricopa County administrators have agreed to pay an undisclosed amount to settle a 6-year-old lawsuit over a woman's death that occurred after she was booked into a county jail.

The county has already spent about $1.8 million to hire attorneys to defend itself in the lawsuit, said Cari Gerchick, a county spokeswoman.

Any other details on the terms of the settlement will remain under seal until the county Board of Supervisors meets on Oct. 17 to authorize the agreement, she said.

The Sheriff's Office is also not authorized to comment on the agreement until it is approved, a spokesman said.

In addition to Maricopa County and the Sheriff's Office, the lawsuit targeted Correctional Health Services, the taxpayer-funded agency that provides constitutionally mandated health care in the county jails.

The lawsuit was filed in 2006 by the surviving family members of Deborah Braillard, a 46-year-old woman who had been booked in jail several times before her entry into the Fourth Avenue Jail on Jan. 1, 2005, on suspicion of drug possession.

During her prior jail bookings, Braillard's diabetes had been noted during the health-care screening that every county inmate undergoes when admitted into jail.

But employees of Correctional Health Services failed to note Braillard's medical condition in early 2005.
Instead, because Braillard was barely coherent and slurring her words, jail health-care workers thought they were dealing with a woman in the throes of a drug addiction.

Braillard was coming off drugs and showing signs of a blood-sugar crash, according to court documents, her family and testimony from jail employees. She was disoriented, vomiting, soiling herself, sweating profusely and complaining of pain, according to court documents. Employees attributed her symptoms to drug withdrawal.

Four days after she was booked into jail, Braillard was taken to Maricopa Medical Center, where she would remain unconscious until she died 18 days later of complications from diabetes.

The form used to assess the medical condition of an incoming inmate lists 27 questions. A health-care worker completed Braillard's assessment in less than a minute, according to court documents.

No one noticed that Braillard was diabetic. An electronic medical-records system, had it been in place, could have immediately alerted employees about Braillard's condition. She had been administered insulin at the jails many times before, and an electronic system would have included her medical history.

County administrators signed a $4.5 million contract for an electronic medical-record system in March, though the network is still in the design phase, Gerchick said.

Marty Atencio's family fights back and files suit.

Thanks JJ and the AZ Republic for keeping up with this tragic case...and to Marty's family for holding the real bad guys accountable...

Marty Atencio

Marty's memorial page here.

-----------from the Arizona Republic-------------

$20M claim alleges excessive force in AZ inmate's death

by JJ Hensley
Arizona Republic
June 8, 2012

The family of a man who died in December following an altercation with police and detention officers in a Maricopa County jail has filed a $20 million notice of claim against the city of Phoenix, the Sheriff's Office and the county agency responsible for health care in the jails.

The claim, filed Friday, alleges that excessive force, coupled with a series of failures by medical professionals to tend to Ernest "Marty" Atencio, contributed to the 44-year-old's death in December.

Atencio died four days after he was removed from a "safe cell" in the Fourth Avenue Jail.






The notice of claim (WARNING: Contains graphic images)

The Maricopa County medical examiner last week issued a report that concluded that Atencio died of cardiac arrest, acute psychosis, medical problems and "law-enforcement subdual," but the report did not list a manner of death.

Atencio's family believes that the manner of death was homicide, committed at the hands of sheriff's detention officers in an altercation that began when two Phoenix police officers began to struggle with Atencio after he refused to remove his left shoe. They wanted the shoe removed to be scanned as he prepared to enter the jail.

The Phoenix officers took Atencio to the ground, and surveillance footage shows the detention officers dragging Atencio into a safe cell, where the number of officers in the small cell obscured their actions from the camera.
A safe cell is a room designed to reduce inmates' ability to injure themselves or others.

The claim contends that at least one officer punched Atencio and that another officer shocked Atencio with a stun gun six times, with several of those strikes coming within inches of his heart.

The notice of claim is a necessary precursor to a lawsuit against a public entity. State law requires a claim to list a dollar amount for which it can be settled. Atencio's family set that amount at $5 million for Phoenix police and $15 million for the county agencies.

The Sheriff's Office is continuing to investigate the incident and declined comment.

A pair of Phoenix police officers contacted Atencio twice on the night he was detained.

During the first contact, outside a convenience store, officers noticed that Atencio was acting erratically and told him to go home. Moments later, the officers received a call about a man kicking at a woman's apartment door in the 2800 block of West Laurel Lane. The officers recognized Atencio as the man they had encountered outside the convenience store, and they arrested him after the woman requested prosecution.

When Atencio arrived at the Fourth Avenue Jail's intake area -- where inmates are screened for medical and mental-health concerns and the most serious are supposed to receive immediate attention -- officers recognized his signs of mental illness but failed to respond, according to the claim.

"She (mental-health professional Monica Scarpati) admitted that she did not complete a full assessment of Marty and sent him to an isolation cell," the claim states. "Ms. Scarpati and (Correctional Health Services nurse Bill McClean) fell below the applicable standard of care by, in RN McClean's words, 'accepting' Marty into the jail and not doing anything to make sure that Marty got the immediate medical attention that he so obviously needed and deserved."

According to the claim, as Atencio waited for further processing, other officers noticed his mental state and began mocking him. According to an interview with an inmate who was nearby at the time, one officer thought Atencio's mug shot could be featured on the Sheriff's Office website that posts booking photos.

"An MCSO lieutenant stated in an interview that the process of taking Marty's photo was, 'Ah, you know, it's kinda comical,'" according to the claim.

As Atencio prepared to leave the booking area, he became uncooperative with Phoenix officers but was not violent or combative, according to interviews with officers contained in the claim.

Surveillance video shows that when a Phoenix officer placed his arm around Atencio's neck and took him to the ground, nearby officers joined in the effort to subdue Atencio. His family called the events that followed a "jailers' riot."

The claim does not request any damages from the Medical Examiner's Office, but it does allege that the office attempted to shield the county from liability by failing to name a manner of death from one of the four descriptions: suicide, homicide, natural causes or accidental.

"The medical examiner's report is part science and part defensive doublespeak designed to deflect and limit the county's liability," the claim states. "The notion that Marty's manner of death is 'undetermined' is a farcical sleight of hand by the county. The cardiac arrest was induced by the 'law-enforcement subdual,' so it was obviously a 'homicide,' i.e., caused at the hands of other human beings."

Arpaio's Deaths in Custody: Misogyny back on trial.

This guy Vogel - who should have been taken by the cops to the psych hospital, not to jail, died over ten years ago after fighting off a bunch of guards trying to dress him in pink - and yet they still do this kind of thing to frightened, vulnerable, mentally ill prisoners today.  Apparently when this case first went to court, his trauma from that incident wasn't really fully explored - the 9th Circuit Court seems to think that the use of the pink underwear is indeed abusive, however, and relevant, so it's being returned to the lower courts for a new trial - with Arpaio as the defendant. As articulated by Justice Noonan:

 

 "Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification," he wrote. "It appears to us that this question is still open for exploration at trial on remand."

To use the color pink - long associated with the feminine - as  a means of humiliating male prisoners is pathetic and disgusting and says a lot about not just Arpaio's homophobia and hate for people who are gay/transgender/queer, but his deep contempt for women in particular. How can women with any political awareness at all justify allowing Arpaio and the MCSO to continue like this?

I have a hard time understanding how the women in this state - Republicans and Dems alike - have tolerated Arpaio's misogyny for so long - much less why so many vote for him - except that the women here have been very well-trained to comply. Women's rights organizations in Arizona who aren't actively working to end mandatory the pink underwear in the county jail are as much a part of the problem as Sheriff Joe himself is - they should be supporting this suit. The use of pink - the feminine - as something to abuse people with is not a petty issue - it's a symptom of the toxic attitudes towards people (not just prisoners) that defines the MCSO's culture, and it's killing folks.

For those interested, by the way, the actual court opinion on this is linked to at the bottom of the article. Interesting read. Maybe this guy will be the one responsible for reining in Arpaio's expressions of hate in his policies, anyway, even though it sure won't change the man.

 

"Corrupt Joe"

Wells Fargo/Arpaio HQ

June 7, 2011

-------from the Courthouse News Service (great resource)-----

Arpaio Isn't Off the Hook for Death of Schizophrenic Man

By TIM HULL
March 7, 2012

(CN) - The 9th Circuit ordered a new trial Wednesday in the case of a schizophrenic Arizona man who had a fatal heart attack weeks after he was forced to put on pink underwear in Sheriff Joe Arpaio's notorious county jail.

     Maricopa County authorities stopped 36-year-old Eric Vogel in 2001 while looking for a burglar in his Phoenix neighborhood. Vogel, who had a lifelong history of mental illness and social isolation, had left the home he shared with his mother that morning for the first time in years. When the officers questioned him, he struggled, shouted "kill me" and said he needed to talk to the president. The deputies arrested him and booked him in Arpaio's jail for assaulting a police officer. Vogel was transferred to the psychiatric unit after he told a psychologist that he was at the World Trade Center and getting messages from satellites, but not before being subjected to a "dress-out" in which four officers forced the struggling inmate to change into pink underwear and other jailhouse garb.

     Arpaio famously requires of all Maricopa County Jail inmates to wear pink underwear.

     Vogel spent a week in the unit before his mother bailed him out. A short time later, he was in his mother's car when she had a traffic accident. Police at the scene warned Vogel that there was a warrant out for his arrest for spitting on an officer during the "dress-out." Vogel left the scene and ran for approximately 5 miles. He died the next day of acute cardiac arrhythmia.

     Vogel's mother sued Maricopa County and Arpaio for violating federal civil rights law and other statutes, including the Americans With Disabilities Act. Yavon Wagner, Vogel's sister, stepped in as the plaintiff when her mother died shortly before the trial.

     Vogel allegedly thought he was being raped by the officers, and that they were dressing him in pink underwear as some sort of preparation for a "gang rape." Vogel had been obsessed with the humiliating jailhouse incident, and that the lingering trauma of the dress-out had contributed to his death, according to the complaint.

     At trial, however, Senior U.S. District Judge Earl Carroll barred Wagner from testifying about her brother's state of mind, finding it hearsay. He also prohibited mention of "rape," "gang rape," and "pink underwear," finding no evidence that Vogel had known the underwear he was forced to wear was indeed pink. The court also limited expert testimony as to the possible effects of the dress-out and about an alleged connection between schizophrenia and cardiac arrhythmia. At the trial's end, "the District Court abruptly eliminated the plaintiff's opportunity for rebuttal argument," according to the ruling. A jury found for the defendants.

     But the 9th Circuit voted 2-1 on Wednesday to reverse the verdict and order a new trial. The San Francisco-based panel found that the lower court had committed a fatal error by limiting the plaintiffs' testimony, and had done so again by refusing to consider the psychological implications of pink underwear.

     "Indisputably, Wagner could have testified at trial about the impact the jail incident had on Vogel, how his mood was following the incident, how disturbed he seemed, and even what he thought happened to him during the incident, all without putting inadmissible hearsay before the jury," Judge John Noonan wrote for the majority. "None of this testimony would have been put forth in order to establish the truth of what he had said. Wagner proposed to testify about how extremely delusional Vogel was following the incident, and more importantly, the emotional impact the incident had on him, including how humiliated he now felt by the pink underwear. She was not asserting the truth of anything that Vogel said had happened to him in jail."

     Because of the "symbolic significance" of the color pink in American culture, the jury should have been permitted the jury to consider the "impact of the dress-out on Vogel apparent from his conversation with his sister," the panel found.

     "When a color of such symbolic significance is selected for jail underwear, it is difficult to believe that the choice of color was random," Noonan wrote. "The county offers no penalogical reason, indeed no explanation whatsoever for its jail's odd choice. Given the cultural context, it is a fair inference that the color is chosen to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine."

     "That Vogel was delusional does not mean that he was incapable of seeing," Noonan added. "If you pricked him, he bled. Just as his eyes saw the pink, so his mind made the association of the color. So at least a jury could infer from the impact of the dress-out on Vogel apparent from his conversation with his sister."

     Noonan suggested further that the District Court may want to consider the legality of Arpaio's underwear rules on remand.

     "Unexplained and undefended, the dress-out in pink appears to be punishment without legal justification," he wrote. "It appears to us that this question is still open for exploration at trial on remand."

     Writing in dissent, Judge N.R. Smith argued that the majority had failed to "correctly construe the hearsay rule," and had neglected to give "the proper deference to the District Court's other evidentiary rulings."

     Neither John Curtin, who represented the plaintiffs, nor Maricopa County's attorney, Eileen GilBride, could be immediately reached for comment.

 Link to Court Opinion

Brutalizing the mentally ill: Gerster's Sentencing.

UPDATE (10/21/11):
Gerster's Sentencing

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UPDATE/CORRECTIONS HERE (september 2011)

Maricopa County Courthouse (W. Jefferson / 3rd Ave)
March 2011

Went to Kevin Gerster's pre-trial this AM, only to learn that he entered a plea last week to three counts: a misdemeanor for tampering with criminal records (he gave a buddy the address of a guy his ex-girlfriend was dating, and the buddy stalked and assaulted them both), as well as two aggravated assault charges for beating up his mentally ill prisoners (both are just class 6 felonies, though - charging him for assaulting "vulnerable adults", as I strongly urged the prosecutors to do, would have made it a class 2 felony).


Here's what really troubles me, though: even though he's a repeat offender of violent crimes against vulnerable persons, they let him off the hook with "non-dangerous/ non-repetitive" designations on his assaults - how can aggravated assault be "non-dangerous"???? That's real BS. It's so he can get out without a felony in the end - just probation and a misdemeanor, if he behaves (see the law below)


That favor by the prosecutor may well be what helps him avoid prison for all this. It sure minimizes his responsibility for hurting people repeatedly - the only reason he can't keep doing so is because he got caught, not because he found God or something. That's one sign of a sociopath - that and the sheer absence of a conscience.


This is all so disappointing - I really thought Prichard and her boss Bill Montgomery had what it took to really get justice in this case. That guy's going to walk with probation and community service, no doubt - despite violating all of our trust, as well as the welfare of his prisoners. God only knows how traumatized his victims still are - they'd have every reason to be afraid of the uniform of the state, now, too - as do the rest of us.


Here's Gerster's sentencing date; be there if you can:


10/21/2011 at 10:30 a.m.,
Judge William Brotherton Jr.
201 W. Jefferson St, PHX
Maricopa County Superior Court



Look for this provision to be pulled out at sentencing, so he has a chance of getting out of there without any felony charges at all (and could therefore become a rent-a-cop at your local high school or mall) .

Shame on the MCAO for not prosecuting him for abusing vulnerable adults... and this plea they gave him is hardly justice for those of us who were victimized by the breaking of our trust - on our dime - much less for the guy whose jaw he broke.

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Arizona Revised Statutes
Title 13: Criminal Code

13-604. Class 6 felony; designation

A. Notwithstanding any other provision of this title, if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated. The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor. This subsection does not apply to any person who stands convicted of a class 6 felony and who has previously been convicted of two or more felonies.

B. If a crime or public offense is punishable in the discretion of the court by a sentence as a class 6 felony or a class 1 misdemeanor, the offense shall be deemed a misdemeanor if the prosecuting attorney files any of the following:

1. An information in superior court designating the offense as a misdemeanor.

2. A complaint in justice court or municipal court designating the offense as a misdemeanor within the jurisdiction of the respective court.

3. A complaint, with the consent of the defendant, before or during the preliminary hearing amending the complaint to charge a misdemeanor.