United States District Court, E.D. Michigan, Southern Division
HUMAN RIGHTS DEFENSE CENTER, d/b/a Prison Legal News, Plaintiff,
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.
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.
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
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).
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
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 . . . .
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]
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
• 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]
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
[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
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.
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
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
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.
Summary Judgment Standard
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.
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.
Count I (First Amendment Claim)
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;
4. there must not be alternatives available that fully
accommodate the prisoner's rights at de minimis cost to