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HRDC v. SVRJA, VA, Opinion re Injunction, Censorship, 2020

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Case 1:18-cv-00013-JPJ-PMS Document 129 Filed 03/25/20 Page 1 of 11 Pageid#: 3867



Case No. 1:18CV00013
By: James P. Jones
United States District Judge

Thomas G. Hentoff, Sean M. Douglass, and Thomas S. Chapman, WILLIAMS
& CONNOLLY LLP, Washington, D.C., Bruce E. H. Johnson, DAVIS WRIGHT TREMAINE
LLP, Seattle, Washington, and Daniel Marshall, HUMAN RIGHTS DEFENSE CENTER,
Lake Worth, Florida, for Plaintiff; Katherine C. Londos and Nathan H. Schnetzler,
FRITH ANDERSON + PEAKE, P.C., Roanoke, Virginia, for Defendants.
In this suit by a prisoners’ rights organization against a jail authority and its
superintendent under 42 U.S.C. § 1983, I previously granted summary judgment for
the plaintiff on its First Amendment claim against the jail authority and on its due
process claim against both defendants.

Earlier in the case, I had entered a

preliminary injunction, which remains in effect. Following the entry of summary
judgment, the parties agreed to an amount of compensatory damages, and the
plaintiff renewed its request for a permanent injunction. For the reasons that follow,
I will grant the plaintiff’s request and enter a permanent injunction.

Case 1:18-cv-00013-JPJ-PMS Document 129 Filed 03/25/20 Page 2 of 11 Pageid#: 3868

The facts of this case are set forth in detail in my opinion granting in part and
denying in part the plaintiff’s motion for summary judgment. Human Rights Def.
Ctr. v. Sw. Va. Reg’l Jail Auth., 396 F. Supp. 3d 607 (W.D. Va. 2019). In summary,
I held that the Southwest Virginia Regional Jail Authority (“Jail Authority”) had
violated plaintiff Human Rights Defense Center’s (“HRDC”) First Amendment
rights by (1) prohibiting inmates from receiving books except those preapproved by
the Jail Authority; and (2) prohibiting inmates from receiving any magazines. I
further held that the Jail Authority and Superintendent Stephen Clear had violated
HRDC’s due process rights under the Fourteenth Amendment by rejecting or
confiscating HRDC’s mailings to prisoners without providing adequate notice of the
reason for the rejection and an opportunity for HRDC to appeal the decision.
Based on these rulings, HRDC seeks a permanent injunction that orders as
a. Defendants shall deliver to incarcerated persons publications that
are mailed to them, subject to a reasonable inspection to ensure that
any such publication does not present a threat to a legitimate
penological interest. Defendants may remove any items in the mail
that present a threat to a legitimate penological interest. Defendants
may place reasonable limits on personal property that incarcerated
persons possess in cells or common areas.


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b. If Defendants refuse for any reason to deliver any publication mailed
to an incarcerated person, Defendants shall provide written notice to
the sender within three (3) business days of the rejection, and shall
provide the sender with an opportunity to appeal the rejection within
at least fifteen (15) days from receipt of written notification of the
rejection. Such written notice shall include, at minimum: (i) the
name and address of the sender as well as the name of the intended
recipient, (ii) a specific description of the refused publication,
including reference to a specific issue if the publication is a
periodical, (iii) a citation to the objectionable portion of the
publication, (iv) an explanation why the publication threatens a
legitimate penological interest; and (v) information regarding the
sender’s right to appeal the rejection decision, including the name
and address of the person to whom such an appeal should be
addressed and the date by which any appeal must be submitted.
Pl.’s Proposed Order & Permanent Inj. 2–3, ECF No. 56-1.
The defendants argue that HRDC has not met its burden of showing that it is
entitled to a permanent injunction.

They have submitted a declaration of

Superintendent Clear describing significant contemplated policy changes regarding
the Jail Authority’s handling of prisoner mail and publications. The defendants say
these planned changes undermine HRDC’s claim that it will suffer irreparable harm
in the absence of an injunction.
Specifically, Clear avers that approximately four months ago, the Jail
Authority “began negotiations with a third-party vendor for the purpose of
processing inmate mail off-site and delivery of inmate mail in electronic form via
tablets and kiosks in the facility housing units.” Defs.’ Mem. Opp’n Req. for

Case 1:18-cv-00013-JPJ-PMS Document 129 Filed 03/25/20 Page 4 of 11 Pageid#: 3870

Permanent Inj. Ex. A ¶ 4, ECF No. 121-1. The Jail Authority is currently involved
in the procurement process and hopes to enter into a contract with the vendor this
spring. The vendor will scan mailings to inmates in a high-resolution color format
and send them to the Jail Authority, which will then inspect them and release them
to inmates for electronic viewing.
Because inmates will possess significantly less paper mail under this system1
they will be permitted to receive a greater quantity of books shipped from publishers
or checked out from a facility book room. “Books received at the facilities directly
from a publisher will be inspected for contraband and reviewed for security concerns
and then delivered to the inmate.” Id. at ¶ 9. Clear does not define contraband or
indicate what security concerns might warrant rejecting a book; thus, it appears that
the person inspecting each book will retain significant discretion in deciding whether
to approve or reject the book. According to Clear, “[i]nmates no longer must obtain
preapproval in order to receive books directly from a publisher.” Id. at ¶ 10. HRDC
notes that the written policies in the record still require preapproval, and the
defendants have not submitted any adopted or proposed written policy that does not
require preapproval.


Mail from attorneys will still be sent directly to the Jail Authority facility where
the inmate is housed, but attorneys will also have the option of emailing inmates.

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Additionally, Clear states that publications such as HRDC’s periodicals,
which are sent directly from a publisher, will be processed by the third-party vendor
like other inmate mail. Inmates will be able to access these publications on an
electronic kiosk or tablet, which will also contain a messaging function similar to email. The kiosks and tablets will contain education courses, self-help materials,
religious materials, and other content, along with a virtual law library, which inmates
will be able to access for free. The tablets and kiosks will further offer streaming
entertainment media. The Jail Authority “plans to supply tablets to each housing
unit on a ratio of 1 tablet to 6 inmates.” Id. at ¶ 16.
To obtain a permanent injunction,
“A plaintiff must demonstrate: (1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.”
Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007)
(quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Whether
to grant an injunction is a decision within the court’s equitable discretion. Id.


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“As to irreparable injury, it is well established that the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011)
(internal quotation marks, alterations, and citation omitted). “Moreover, monetary
damages are inadequate to compensate for the loss of First Amendment freedoms.”
Id. I therefore find that HRDC has satisfied the first two factors.
The record reveals no indication that the proposed injunction would result in
any hardship to the defendants, who have already been complying with a similar
preliminary injunction for more than a year and a half. See Prelim. Inj., July 3, 2018,
ECF No. 38. As I found in my summary judgment opinion, “[t]here is no evidence
that there have been any problems related to books within the Jail Authority’s
facilities since the court’s preliminary injunction went into effect.” Human Rights
Def. Ctr., 396 F. Supp. 3d at 619. Likewise, there is no evidence showing any
significant burden or safety issue related to delivery of magazines since the entry of
the preliminary injunction. Id. at 622. I find that the third factor, the balance of
hardships, weighs in favor of entering a permanent injunction.
“[U]pholding constitutional rights is in the public interest.” Legend Night
Club, 637 F.3d at 303. Furthermore, as I previously noted, “[p]roviding adequate
reading material to inmates serves the interest of rehabilitating inmates and of

Case 1:18-cv-00013-JPJ-PMS Document 129 Filed 03/25/20 Page 7 of 11 Pageid#: 3873

preventing security problems by avoiding idleness, boredom, and disruptive
behavior.” Human Rights Def. Ctr., 396 F. Supp. 3d at 616. HRDC has met its
burden as to the fourth consideration for entry of a permanent injunction, and the
defendants have not offered any evidence to show that the proposed injunction is
likely to adversely affect any interest of the public.
The defendants argue that HRDC has not shown that they are likely to violate
its rights in the future because of the contemplated policy changes regarding mail
delivery and because they have instituted a confiscation appeal period of fourteen
days. They also argue that Clear’s entitlement to qualified immunity on the First
Amendment claim counsels against the entry of an injunction, although the
reasoning behind that argument is not well-explained.
While the defendants do not specifically frame their position in terms of
mootness, they appear to argue that their voluntary change in policy moots any need
for an injunction. In order for the defendants’ voluntary cessation to moot the
request for an injunction, the defendants would have to show that “it is absolutely
clear the allegedly wrongful behavior could not reasonably be expected to recur.”
Porter v. Clarke, 852 F.3d 358, 360 (4th Cir. 2017) (quoting Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). “In the context
of conditions of confinement cases, in particular, courts have found that a change

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that completely and irrevocably eradicates the effects of the condition or policy
subject to challenge renders an action moot.” Id. at 364 (internal quotation marks,
alterations, and citations omitted). “By contrast, a defendant fails to meet its heavy
burden to establish that its allegedly wrongful behavior will not recur when the
defendant retains the authority and capacity to repeat an alleged harm.” Id. (internal
quotation marks and citation omitted). “In the context of litigation regarding the
policies governing prisoners’ conditions of confinement, in particular, courts have
refused to find a challenge to an abandoned policy or practice moot when the prison
refuses either to promise not to resume the prior practice . . . or to otherwise
unambiguously terminate the challenged practice.” Id. at 365 (internal quotation
marks, alterations, and citations omitted).
I find the defendants’ arguments unpersuasive, primarily because the
anticipated policy and procedural changes have not yet been implemented.
Moreover, even if they are implemented in short order, the defendants retain the
right to change them at any time. The expected changes described by Clear thus do
not provide adequate protection of HRDC’s rights at the present time.
The defendants also assert that the $1,500 in compensatory damages to which
they have agreed, along with an as-yet-undetermined award of attorneys’ fees and
costs in this case and the prospect of future litigation costs, provide adequate

Case 1:18-cv-00013-JPJ-PMS Document 129 Filed 03/25/20 Page 9 of 11 Pageid#: 3875

deterrence to prevent them infringing HRDC’s rights in the same way in the future.
Of this, too, I am unpersuaded. While these litigation-related expenses surely do
provide some deterrent effect, I find that a clear directive is needed to ensure that
HRDC’s rights are not violated again in the future.
The defendants argue that the requested relief is overly broad and
insufficiently specific, essentially directing them to follow the law. I disagree.
Federal Rule of Civil Procedure 65(d)(1) requires that an injunction must “state its
terms specifically” and “describe in reasonable detail — and not by referring to the
complaint or another document — the act or acts restrained or required.” HRDC’s
proposed injunction satisfies this rule. It does not merely tell the defendants that
they must comply with the law. It includes exceptions for delivery of publications
designed to protect the Jail Authority’s legitimate penological and security interests,
rendering it narrowly tailored, and it sets forth in detail the requirements for all
rejection notices.
The defendants complain that HRDC’s proposed injunction “places an undue
burden on jail officials to determine when a sender ‘receives’ notice of a rejection.”
Defs.’ Mem. Opp’n Req. for Permanent Inj. 7, ECF No. 121. That concern can be
remedied by starting the appeal period on the date the Jail Authority sends the
confiscation notice and extending the length of the appeal period beyond fourteen

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calendar days to account for potential delays in mail delivery. I will craft the portion
of the permanent injunction addressing appeals accordingly.
Finally, the defendants argue that the proposed injunction does not comply
with the Prison Litigation Reform Act (“PLRA”). HRDC counters that the PLRA
does not apply to actions seeking to vindicate the civil rights of non-prisoners.
The PLRA provides,
Prospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the
Federal right of a particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the court finds that such
relief is narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right. The court shall
give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a). The PLRA applies to civil actions “with respect to the
conditions of confinement or the effects of actions by government officials on the
lives of persons confined in prison.”

18 U.S.C. § 3626(g)(2).


unambiguously applies to only those suits filed by prisoners.” Doe ex rel. Doe v.
Washington Cty., 150 F.3d 920, 924 (8th Cir. 1998).
Because this suit was not brought by a prisoner, but rather by HRDC to
vindicate its own constitutional rights, any injunction entered is not required to
comply with the PLRA. Even if the PLRA did apply here, I would find that the

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injunction to be entered does satisfy its requirements, as it is no broader than
necessary to prevent the further violation of HRDC’s constitutional rights.
For the reasons given, it is ORDERED that the plaintiff’s motion for a
permanent injunction is GRANTED. A separate Permanent Injunction and a Final
Judgment will enter herewith.
ENTER: March 25, 2020
/s/ James P. Jones
United States District Judge



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