Prison Legal News v. Sacramento Co - Jones, CA, Consent Decree, Censorship, 2012
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Case 2:11-cv-00907-JAM-DAD Document 61 Filed 08/06/12 Page 1 of 11 1 SANFORD JAY ROSEN – 62566 ERNEST GALVAN – 196065 2 KENNETH M. WALCZAK – 247389 ROSEN BIEN GALVAN & GRUNFELD, LLP 3 315 Montgomery Street, Tenth Floor San Francisco, California 94104-1823 4 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 firstname.lastname@example.org 5 Email: 6 LANCE WEBER (admitted pro hac vice) HUMAN RIGHTS DEFENSE CENTER 7 P.O. Box 2420 Brattleboro, Vermont 05303-2420 8 Telephone: (802) 257-1342 Facsimile: (866) 228-1681 email@example.com 9 Email: 10 Attorneys for Plaintiff 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 SACRAMENTO DIVISION 14 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER, 15 Plaintiff, 16 v. 17 COUNTY OF SACRAMENTO; 18 SCOTT R. JONES, individually and in his capacity as Sheriff of the County of 19 Sacramento; DOES 1-20, in their individual and official capacities, 20 Defendants. 21 Case No. 2:11-cv-00907-JAM-DAD STIPULATION AND [PROPOSED] ORDER DISMISSING CASE AND RETAINING JURISDICTION OVER CONSENT DECREE Judge: Hon. John A. Mendez 22 23 24 25 26 27 28 [644367-2] STIPULATION AND [PROPOSED] ORDER ADMINISTRATIVELY CLOSING CASE Case 2:11-cv-00907-JAM-DAD Document 61 Filed 08/06/12 Page 2 of 11 1 THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, STIPULATE AS 2 FOLLOWS: 3 1. The Parties have negotiated a settlement by consent decree, resolving all 4 claims asserted in the Complaint. See Exhibit A. 5 2. The Parties agree that settlement has altered the legal and juridical 6 relationship of the Parties. 7 3. Plaintiff has released Defendants for all claims pursuant to Paragraph 8 of 8 the Consent Decree. 9 4. The Parties have further agreed that this Court should dismiss the complaint 10 with prejudice, but retain jurisdiction over the case to enforce the Consent Decree until 11 such jurisdiction is terminated by the Court upon motion made by either Party. See 12 Consent Decree, ¶ 19. 13 5. The Parties respectfully request that the Court enter the [Proposed] Order set 14 forth below, instructing the Clerk to administratively close the case. 15 IT IS SO STIPULATED. 16 DATED: August 6, 2012 Respectfully submitted, 17 ROSEN, BIEN & GALVAN, LLP 18 19 20 By: s/ Ernest Galvan Ernest Galvan 21 Attorneys for Plaintiff 22 LONGYEAR, O’DEA & LAVRA, LLP 23 By: s/ John Lavra John Lavra 24 25 Attorneys for Defendants 26 27 28 [644367-2] 1 STIPULATION AND [PROPOSED] ORDER ADMINISIRATIVELY CLOSING CASE Case 2:11-cv-00907-JAM-DAD Document 61 Filed 08/06/12 Page 3 of 11 1 [PROPOSED] ORDER ADMINISTRATIVELY CLOSING CASE 2 IT IS HEREBY ORDERED that: 3 The parties having reached a Consent Decree resolving the Plaintiff’s claims, the 4 Court orders the claims dismissed with prejudice under Rule 41(a)(2) of the Federal Rules 5 of Civil Procedure, subject to the condition that the Court retains jurisdiction to enforce 6 compliance with the Consent Decree, until such jurisdiction is terminated by the Court 7 upon motion made by either Party. Motions regarding the Consent Decree may be filed by 8 the parties under this case number pursuant to the Court’s ancillary jurisdiction to enforce 9 the Consent Decree. 10 IT IS HEREBY ORDERED 11 12 DATED: _____________________ 13 14 15 THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 [644367-2] 2 STIPULATION AND [PROPOSED] ORDER ADMINSITRATIVELY CLOSING CASE Case 2:11-cv-00907-JAM-DAD Document 61 Filed 08/06/12 Page 4 of 11 EXHIBIT A Case Case 2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document 61 59 Filed Filed08/06/12 07/13/12 Page Page51ofof11 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 SANFORD JAY ROSEN 62566 ERNEST GALVAN- 196065 KENNETH M. WALCZAK- 247389 ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, Tenth Floor San Francisco, California 94104-1823 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: firstname.lastname@example.org WEBER (admitted pro hac vice) HUMAN RIGHTS DEFENSE CENTER P.O. Box 2420 Brattleboro, Vermont 05303-2420 Telephone: (802) 257-1342 Facsimile" (866) 228-1681 Email: email@example.com Attorneys for Plaintiff Prison Legal News LONGYEAR, O'DEA & LAVRA, LLP John A. Lavra, CSB No.: 114533 3620 American River Drive, Suite 230 Sacramento, CA 95864 Phone: 916-974-8500 Facsimile: 916-974-8510 Attorney County for Defendants Sacramento, Scott R. Jones, of et al. 16 UNITED STATES DISTRICT COURT 17 EASTERN DISTRICT OF CALIFORNIA 18 SACRAMENTO DIVISION 19 20 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER, 22 23 24 25 26 STIPULATION AND CONSENT DECREE Plaintiff, 21 Case No. 2:11-cv-00907-JAM-DAD Judge: go Hon. John A. Mendez COUNTY OF SACRAMENTO; SCOTT R. JONES, individually and in his capacity as Sheriff of the County of Sacramento; DOES 1-20, in their individual and official capacities, Defendants. 27 28 [635851-1] CONSENT DECREE [PROPOSED] CASE NO. 2:11-CV-00907-JAM-DAD Case Case 2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document 61 59 Filed Filed08/06/12 07/13/12 Page Page62ofof11 6 parties decree by The consent to this action, represented by counsel, stipulate the court as to and request entry of a follows: 12 April 5, 2011, Plaintiff Prison Legal News, a Project of the Human Rights Defense Center ("PLN" or "Plaintiff") filed suit in the above entitled matter seeking injunctive and declaratory relief, damages, and attorney's fees and costs. Plaintiff's complaint alleges an unlawful and unconstitutional custom, practice, or policy regarding the delivery of incoming publications and correspondence to prisoners at the Sacramento County jails. The complaint alleges violations of the First and Fourteenth Amendments to the United States Constitution, pursuant to 42 U.S.C. § 1983, and seeks injunctive and declaratory relief, money damages, attorney's fees and legal costs. On June 2, 2011, Defendants Sacramento County, et al., (collectively 2. "Defendants") filed an answer denying the allegations of the complaint and raising various 13 affirmative defenses. 1. 6 7 8 9 10 11 14 3. On The parties disputed, and continue to dispute expense, delay, uncertainty, and burden agree that Defendants have and 23 of deny, liability. However, in order to avoid the litigation the parties agree to the entry of this consent decree. Plaintiff publishes and distributes a monthly journal of corrections news and 4. analysis, and offers and sells books about the criminal justice system and legal issues affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the Country. PLN engages in protected speech and expressive conduct on matters of public F.3d 692 (9th Cir. 2005). concern. See Prison Legal News v. Lehman, 397 Defendants operate the Sacramento County Main Jail ("SCMJ") and Rio 5. Cosumnes Correctional Center ("RCCC"), two facilities which house prisoners and 24 detainees. 25 Beginning in or around April 2009, Defendants refused to .deliver publications and correspondence sent by PLN to its subscribers, potential subscribers, 15 16 17 18 19 20 21 22 26 27 28 6. and readers at SCMJ and RCCC. The stated bases for these exclusions were that PLN's magazine is held together by staples, and that PLN uses standard mailing labels to address [635851-1] CONSENT DECREE CASE NO. 2:11-CV-00907-JAM-DAD Case Case 2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document 61 59 Filed Filed08/06/12 07/13/12 Page Page73ofof11 6 its correspondence. The Court 7. injunction. on March 7, 2012 granted PLN's motion for preliminary findings were: Defendants' policies and practices including refusing to deliver PLN publications and mailings to prisoners because they contained staples and/or a mailing label are not supported by a legitimate penological interest and do not leave open The March 7, 2012 4 5 6 for PLN to exercise its First Amendment rights. Furthermore, allowing PLN to be delivered to prisoners in the Sacramento County's jails would have very limited impact on guards and other inmates, and there are obvious, easy alternatives to Defendants' bans on PLN's staples and mailing labels. In short, Defendants' policies are an exaggerated response to any security concerns posed by PLN. alternative 7 8 9 10 11 means Plaintiff has demonstrated that it will suffer irreparable harm in the absence of preliminary injunctive relief and the balance of hardships tips in Plaintiff' s favor. The loss of First Amendment freedoms, for even minimal periods of time, constitutes irreparable injury. Here, Defendants have infringed on Plaintiff's established rights to send publications to prisoners. The grant of a preliminary injunction will not cause irreparable harm to the Defendants. The balance of equities therefore tips in Plaintiff' s favor. 12 13 14 15 16 17 Finally, the preliminary injunction set forth below is in the public interest. Defendants' policies operated as a de facto ban constitutional rights of on PLN publications. Protecting the PLN promotes the public interest. 18 19 20 alleged 22 relief 23 the 24 alleged by sum agree that this consent decree resolves all claims for injunctive in Plaintiff' s complaint. By this consent decree, together with payment of The 8. 21 parties ($300,000.00), the parties agree that all claims finally resolved. The parties agree that Plaintiff will of three hundred thousand dollars Plaintiff are fully and claims, and that Defendant will remit payment to Plaintiff as soon later than sixty (60) days after 26 as reasonably possible after the entry of this order, but not sixty (60) days, interest shall accrue 27 entry of the order. If payment is not made within of this order. 28 pursuant to 28 U.S,C. § 1961 from the date of entry 25 [635851-1] execute a release of all 2 CONSENT DECREE 2:11-cv-00907-JAM-DAD Case Case 2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document 61 59 Filed Filed08/06/12 07/13/12 Page Page84ofof11 6 6 7 8 9 10 11 parties agree that the Plaintiff shall not be entitled to any attorney's fees and costs for monitoring compliance with this consent decree. The parties agree that this consent decree shall only be applicable to: (a) the 10. delivery of Plaintiff' s publications, and/or publications from other known publishers and the removal of staples from those publications; and (b) the delivery of documents or correspondence from Prison Legal News and/or other known publishers that contain mailing labels. The parties agree that providing prisoners with access to reading materials 11. promotes positive contact with the communities into which prisoners will eventually be released and is therefore consistent with the Defendants' public safety mission. 9. The 12. DEFINITIONS: 12 a. 13 fasteners 14 sheets of b. As used sticker used 17 c. by an light-duty small wire used by PLN to bind the the type of few sheets of paper, and herein, MAILING LABELS shall PLN to affix As used a mean address to an item of herein, PUBLISHER shall mean the type of self-adhesive printed matter. any publisher mean or book store that 18 does mail order business. 19 23 parties agree that Defendants and their successors, officers, agents, servants, and employees, and all others in active concert or participation.,with them, shall not refuse to deliver publications, correspondence, or documents sent by any PUBLISHER to prisoners at the county's jails on the ground that these publications, correspondence, or documents contain STAPLES, PROVIDED that Defendants may comply by removing the 24 STAPLES. 20 21 22 13. The 27 agree that Defendants shall not refuse to deliver publications, correspondence, or documents sent to prisoners from any PUBLISHER because of MAILING LABELS, PROVIDED that Defendants may comply by removing the 28 MAILING LABELS. 25 26 [635851-1] herein, STAPLES shall commonly used to attach its monthly publication. 15 16 As used 14. The parties 3 CONSENT DECREE 2:11-cv-00907-JAM-DAD Case Case 2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document 61 59 Filed Filed08/06/12 07/13/12 Page Page95ofof11 6 1 2 3 4 5 6 7 8 9 10 15. an The parties agree that Defendants shall provide adequate written notice and administrative review process to the PUBLISHER of any refusal to deliver any publication, correspondence, or document sent from a PUBLISHER to a prisoner at the County's jails. The administrative review process shall include the PUBLISHER's right to have its appeal, complaint, or inquiry considered and resolved by a decisionmaker other than the person who originally refused to deliver the publication or mailing in question. Defendants also agree to purchase four (4) five-year subscriptions to PLN's 16. monthly journal for each Sacramento County jail library, and to retain and maintain those four (4) copies in each County Facility's libraries, for use by prisoners. Defendants shall order and pay for the subscriptions within ten (10) calendar days of the entry of this Order. 12 If Plaintiff proves, in future, any violation ofthis order, Defendants shall be liable for the reasonable attorney's fees and costs PLN incurs in proving the violation. 13 Defendants shall have the 11 14 15 16 17. opportunity to demonstrate that any violation is isolated, accidental, and/or not foreseeable in light of Defendants' history of substantial compliance and efforts to train and inform staff on mail and publication policies to mitigate relief ordered for any violation, including fees and costs. 18. 17 18 19 20 21 22 23 24 25 26 The Court finds that this case concerns the First and Fourteenth Amendment publisher and is therefore not a case concerning prison conditions as defined in the Prison Litigation Reform Act of 1996. The Court further finds that the relief herein ordered is narrowly drawn, extends no further than necessary to correct t, he harm to PLN requiring injunctive relief, and is the least intrusive means necessary to correct that harm. The Court retains jurisdiction of this matter for the purpose of enforcement 19. of its Order until terminated upon motion made by either party. 20. No person who has notice of this consent decree shall fail to comply with it, Other artifice. nor shall any person subvert the injunction by any sham, indirection, or rights of a IT IS SO STIPULATED. 27 28 [635851-1] 4 CONSENT DECREE 2:11-cv-00907-JAM-DAD Case Case2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document61 59 Filed Filed08/06/12 07/13/12 Page Page106 of of 11 6 2012 DATED" LLP Attorneys for Plaintiff Prison Legal News a project of the HUMAN RIGHTS DEFENSE 5 6 7 ROS•GALVAN, DATED: 6/• "4• ,2012 CENTER LONGYEAR, O'DEA & LAVRA, LLP 8 9 Lavra 10 Attorneys for Defendants County of Sacramento, 11 Scott R. Jones 12 13 DATED: •1 •.• ,2012 SACRAMENTO COUNTY SHERIFF' S DEPARTMENT 14 15 Sheriff Scott Jones 16 17 18 19 20 IT IS SO ORDERED. DATED" ,2012 21 22 23 By: John A. Mendez, United States District Judge 24 25 26 27 28 2:11-cv-00907-JAM-DAD [635851-1] CONSENT DECREE Case Case2:11-cv-00907-JAM-DAD 2:11-cv-00907-JAM-DAD Document Document61 60 Filed Filed08/06/12 07/16/12 Page Page116 of of 11 6 1 20. No person who has notice of this consent decree shall fail to comply with it, 2 nor shall any person subvert the injunction by any sham, indirection, or other artifice. 3 IT IS SO STIPULATED. 4 5 DATED: _______________, 2012 ROSEN BIEN GALVAN & GRUNFELD LLP 6 By: 7 Ernest Galvan 8 Attorneys for Plaintiff Prison Legal News a project of the HUMAN RIGHTS DEFENSE CENTER 9 10 11 12 DATED: _______________, 2012 LONGYEAR, O'DEA & LAVRA, LLP 13 By: 14 John A. Lavra 15 Attorneys for Defendants County of Sacramento, Scott R. Jones 16 17 18 IT IS SO ORDERED. 19 20 DATED: July 16, 2012 21 22 23 /s/ John A. Mendez____________ John A. Mendez, United States District Court Judge 24 25 26 27 28 [635851-1] 5 CONSENT DECREE PDF created with pdfFactory trial version www.pdffactory.com 2:11-cv-00907-JAM-DAD