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Human Rights Defense Center v. Livingston County Sheriff Bob Bezotte

United States District Court, E.D. Michigan, Southern Division

March 31, 2017

HUMAN RIGHTS DEFENSE CENTER, d/b/a Prison Legal News, Plaintiff,
v.
LIVINGSTON COUNTY SHERIFF BOB BEZOTTE, individually and officially, LIEUTENANT THOMAS CREMONTE, individually and officially, and LIVINGSTONCOUNTY, Defendants.

          ORDER REGARDING MOTIONS FILED AS DOCKET NUMBERS 258, 261, AND 274

          HONORABLE DENISE PAGE HOOD CHIEF JUDGE.

         On July 29, 2016, the parties filed Cross-Motions for Summary Judgment. [Dkt. Nos. 258, 261] On August 19, 2016, Plaintiff filed a Motion to Strike Exhibits to Defendants' Motion for Summary Judgment [Dkt. No. 274]. All of the motions are fully briefed. The Court held a hearing on the motions on October 6, 2016.

         I. BACKGROUND

         Plaintiff's brings, in essence, four claims in three Counts: (1) Count I - a Section 1983 action alleging violations of the First and Fourteenth Amendments; (2) Count II - a state law claim for conversion; and (3) Count III - a takings claim pursuant to the Fifth Amendment. A short summary of the claims of Plaintiff can be found in other court Orders, specifically the Court's two Orders dated March 29, 2013. [Dkt. Nos. 63, 64] Most significantly, the Livingston County Jail (“Jail”) has had the following policies regarding inmate mail:

         A. Postcard Only Policy. Beginning in October 2010, the Jail implemented a postcard only policy which required all non-publications mail to be sent on postcards. I have been unable to find a copy of this “policy” in the record, though the essence of it is set forth in the current publications policy (set forth below).

         B. The Old Publications Policy. The mail policy for delivery of books, magazines and other materials, effective as of December 5, 2006 and in effect at the time this case was filed was:

Inmates will be allowed to receive newspapers, magazines, and other types of publications, which are legally available to the public as long as they are mailed directly from the publisher and approved by Inmate Services.
a) All Cost of subscription is the inmate's responsibility.
b) Materials will be delivered to the inmate as long as he/she is incarcerated.
c) Upon release, the inmate is responsible for changing the address . . . .
d) Exceptions:
i) Specific information regarding weapons, explosives, incendiary devices, poisons or dangerous drugs.
ii) Inflammatory writings advocating disorder, violence or insurrection against correctional personnel or facilities.
iii) Pornographic materials.
iv) Any instructional material in the martial arts.
v) Any other material that pose a safety or security risk, or interferes with the orderly operation of the jail.

[Dkt. No. 32, Pg ID 1291]

         C. Current Publications Policy. The mail policy for delivery of books, magazines and other materials changed in 2012 to provide as follows:

MAIL - Inmates are permitted to write to any person outside of our Jail facility. Incoming Inmate correspondence must be addressed as follows:
Inmate Name, Resident Livingston County Jail . . .
• Incoming mail must reflect sender's name and address.
• Correspondence from attorneys, as well as court and public officials may be opened in the presence of an inmate.
• Mail must be sent via U.S. Postal Service.
• Items NOT allowed: postage stamps, envelopes, blank stationary, jewelry, food, books, magazines, sexually explicit pictures, cash, personal or company check.
• All mail, except bona-fide legal mail, will be by standard post cards. This is both incoming and outgoing mail.
• Incoming mail deemed inappropriate may be placed in the inmate's property locker.

[Dkt. No. 25, PgID 533]

         On March 31, 2016, the Court concluded that Plaintiff was entitled to a preliminary injunction regarding the mail policies at the Jail, insofar as the policies infringed on Plaintiff's 14th Amendment due process claim. The Court ordered that:

[E]ffective immediately, Defendants must, in every instance that Defendants reject (i.e., do not deliver) mail sent by Plaintiff to a designated inmate at the Livingston County Jail (at least with respect to the initial copy of any publication): (a) notify Plaintiff of such rejection; (b) notify the designated inmate recipient of such rejection; and (c) notify Plaintiff and the designated inmate recipient of the right to-and afford Plaintiff and the designated inmate the opportunity to-appeal any such rejection to an impartial third party.

         Dkt. No. 239, PgID 6328. Defendants assert that they revisited their mail policies immediately after receiving the Court's March 31, 2016 Order, and they implemented changes to comply with that Order. Plaintiff subsequently filed a motion for contempt and to enforce the preliminary injunction, arguing that Defendants' new procedures did not comport with the Court's Order. Plaintiff's motion for contempt has been argued and remains pending.

         Defendants' motion for summary judgment seeks dismissal of Plaintiff's cause of action. Plaintiff's motion for summary judgment seeks an order from the Court that:

1. Declares: (a) Defendants' postcard-only, no magazines, no books and no due process notice or opportunity to appeal policies violated the First and Fourteenth Amendments; (b) Defendants' enforcement of those policies violated the First and Fourteenth Amendments; and (c) Defendants' censored PLN's mail in violation of the First and Fourteenth Amendments, for which Defendants must pay nominal, compensatory and punitive damages to Plaintiff;
2. Enjoins Defendants from: (1) permanently rejecting or otherwise censoring mail on the ground that (a) it is not in the form of a postcard or (b) it is a magazine or book; and (2) denying due process to prisoners and their correspondents when censoring mail;
3. Declares that: (a) Defendants unlawfully converted Plaintiff's property (i.e. its books and monthly journal) without compensation to Plaintiff, and without right or permission; (b) the conversion of Plaintiff's property was unlawful, for which Defendants must pay damages to Plaintiff;
4. Declares that: (a) Defendants unlawfully took Plaintiff's property (i.e. its books and monthly journal); (b) maintained control and dominion over the property without Plaintiff's consent; and (c) used the property for its own benefit without just compensation to Plaintiff; and
5. Permanently enjoins Defendants from: (a) taking, converting or otherwise exercising dominion and control over Plaintiff's property (i.e. its books and monthly journal); (b) without receiving Plaintiff's consent or permission; (c) for their own benefit or use; and (d) without just compensation or payment to Plaintiff.

         II. ANALYSIS

         A. Summary Judgment Standard

         Rule 56(a) of the Rules of Civil Procedures provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.

         B. Analysis

         As Plaintiffs' argue and Defendants acknowledge, the Court has rejected Defendants' arguments regarding protection for unsolicited literature (in the March 29, 2013 Order Granting In Part and Denying In Part Defendants' Motion for Partial Judgment on the Pleadings [Dkt. No. 64, PgID 1986-90]) and due process (in the Court's March 31, 2016 Order Regarding Various Motions [Dkt. No. 239, PgID 6320-28]). Defendants assert that “any order . . . that adjudicates fewer than all the claims . . . does not end the action as to any of the claims . . . and may be revised at any time before the entry of a judgment adjudicating all the claims.” Fed.R.Civ.P. 54(b); Patton v. U.P.S., 872 F.2d 1027 (1989). Defendants ask that the Court reconsider these issues. The Court will not reconsider those issues, as Defendants have not raised any new arguments.

         1. Count I (First Amendment Claim)

         The Supreme Court has identified four factors to consider when determining whether “a prison regulation impinges on inmates' constitutional rights.” Turner v. Safley, 482 U.S. 78, 89-91(1987).The Turner test requires that:

1. there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;
2. there must be alternative means of exercising the right that remain open to prison inmates;
3. we must consider the impact that accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally; and
4. there must not be alternatives available that fully accommodate the prisoner's rights at de minimis cost to ...

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