360 F.Supp.3d 870
HUMAN RIGHTS DEFENSE CENTER, Plaintiff
v.BAXTER COUNTY, ARKANSAS, Defendant
CASE NO. 5:17-CV-3070
United States District Court, W.D. Arkansas, Harrison Division.
Signed January 22, 2019
Masimba M. Mutamba, Pro Hac Vice, Daniel Marshall, Attorney at Law, Lake Worth, FL, Paul J. James, James & Carter PLC, Arkansas, AR, Sabarish P. Neelakanta, Boynton Beach, FL, Bruce E. H. Johnson, Caesar D. Kalinowski, Davis Wright Tremaine LLP, Seattle, WA, for Plaintiff.
Jason E. Owens, Jason Owens Law Firm, P.A., Conway, AR, Thomas J. Diaz, Rainwater, Holt & Sexton, P.A., Little Rock, AR, for Defendant.
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE
Currently before the Court are the parties' cross-motions for summary judgment. Plaintiff Human Rights Defense Center's ("HRDC") Motion for Summary Judgment (Doc. 67) contends that Defendant Baxter County's ("the County") adoption of a postcard-only mail policy violates its rights under the First Amendment. It additionally contends that the County's failure to send individual notices each time one of its unsolicited mailings was rejected by the County jail pursuant to this policy and its failure to allow HRDC to challenge each individual rejection amount to due process violations under the Fourteenth Amendment. The County's Motion for Summary Judgment (Doc. 70) contends that the First Amendment challenge asserted by HRDC should be dismissed based upon a recent ruling of the Eighth Circuit upholding a similar policy and that HRDC was not denied due process when the County rejected its unsolicited mailings.
For the reasons explained below, the Court concludes that this is a classic case where both parties have moved for summary judgment as to all claims and where neither party is entitled to complete judgment as a matter of law based on the present record. Nevertheless, it will GRANT IN PART AND DENY IN PART HRDC's Motion (Doc. 67) and GRANT IN PART AND DENY IN PART the County's Motion (Doc. 70).
HRDC is a 501(c)(3) non-profit organization with principal offices in Lake Worth, Florida. HRDC's purpose is to "educate prisoners and the public about the destructive natures of racism, sexism, and the economic and social costs of prisons to society." (Doc. 1, p. 3). HRDC "accomplishes its mission through litigation, advocacy, and publication and/or distribution of books, magazines and other information concerning prisons and prisoner rights." (Doc. 26-1, p. 1).1 HRDC publishes and distributes Prison Legal News: Dedicated to Protecting Human Rights , a monthly magazine which contains news about prisons, prisoners' rights, and prison facilities and conditions, among other things.2 In addition to Prison Legal News , HRDC also publishes and distributes different books about the criminal justice system, self-help books for prisoners, and informational packets that contain subscription order forms and a book list. As part of its mission, HRDC distributes these mailings to monthly subscribers (civilians and prisoners alike) and to prisoners in 2,600 correctional facilities across the country, including in Arkansas.
HRDC alleges that Defendants3 implemented and adhered to an unconstitutional mail policy that prohibited the delivery of HRDC's publication materials to prisoners at the County's jail. In 2012, the County adopted a new mail policy that requires all incoming mail to be limited to postcards. As a result of this policy, HRDC claims that Defendants refused to deliver issues and sample issues of Prison Legal News, The Habeas Citebook , informational packets, legal letters, and court opinions sent by HRDC to prisoners held in the Jail.4 Defendants allegedly sent these items back to HRDC with "Refused" or "Return to Sender Post Cards Only" notations, id. at 7, and allegedly failed to return other mailings.
HRDC alleges that it sent several "waves" of unsolicited mailings to the Jail. Paul Wright,5 the founder and Executive Director of HRDC, stated in his Declaration that:
• On August 5, 2016, HRDC mailed books, magazines, and enveloped letters to eleven prisoners in the Jail. Those mailings included a copy of The Habeas Citebook , a sample copy of Prison Legal News , an informational brochure containing a list of other HRDC publications and an order form, and a paper copy of a 2004 decision of the Ninth Circuit (Doc. 69-17, ¶ 19). Most6 of the books, magazines, and letters sent on this date were returned to HRDC. Wright alleges that all of the returned items contained one of two markings: either a hand-written note stating "Refused" or a United States Postal Service ("USPS") sticker stating "Return to Sender Refused." Id. at ¶ 21.
• Between September 2016 and January 2017, HRDC also sent monthly subscription issues of Prison Legal News and an annual fundraiser issue to prisoners at the Jail. Id. at ¶ 34. Many of these issues were returned to HRDC.7
• On January 6, 2017, HRDC tried again, this time sending the same mailings to seven prisoners in the Jail. Six days later, HRDC mailed follow-up enveloped letters to those same seven prisoners. Id. at ¶¶ 23, 24. This time, however, only some8 of the mailings sent on January 6 and January 12 were returned to HRDC. All of these returned items had a USPS sticker stating "Return to Sender Insufficient Address." Id. at ¶ 26.
• On May 12, 2017, HRDC tried yet again. This time, the same mailings were sent to twelve prisoners at the jail. Id. at ¶ 28. HRDC followed-up on these mailings by sending enveloped letters to those same twelve prisoners on May 18. Id. at ¶ 29. Most9 of these mailings were allegedly returned to HRDC. Of those that were returned, all of the mailings were stamped "RETURN TO SENDER POSTCARDS ONLY." Id. at ¶ 31. HRDC alleges that these stamps were affixed regardless of whether the inmate was still in the Jail at the time of rejection or not.
Since 2016, HRDC has identified at least one hundred ten (110) items of mail sent to prisoners that Defendants allegedly censored. Id. at ¶ 36. This includes twenty-one (21) issues of Prison Legal News , eleven (11) sample issues of Prison Legal News , twenty-one (21) informational packets, and twenty-four (24) copies of The Habeas Citebook. (Doc. 26, p. 4). HRDC alleges that Defendants' actions violated its constitutional rights, limited its ability to distribute its political message and obtain new customers, and thereby frustrated its organizational mission.
HRDC initially sued the County alongside individual officers of the County who were instrumental in enacting the policy or in rejecting HRDC's repeated mailings. It also sought a preliminary injunction enjoining continued enforcement of the policy. However, in ruling on the Defendants' Motion to Dismiss (Doc. 18) and HRDC's Motion for a Preliminary Injunction (Doc. 26), the Court determined that the individual capacity damage claims against these individuals should be dismissed on the basis of qualified immunity because the law governing HRDC's First and Fourteenth Amendment claims was not sufficiently clear to put these officials on notice that their actions were unconstitutional. See Doc. 49. In addition, and in part because of the unsettled nature of the law, the Court also denied HRDC's Motion for a Preliminary Injunction in that same order. A little less than a month after the Court issued its ruling on these two motions, the Eighth Circuit upheld a very similar postcard-only policy against a First Amendment challenge in Simpson v. County of Cape Girardeau, Missouri, 879 F.3d 273 (8th Cir. 2018). That decision prompted the Defendants to file a renewed motion to dismiss (Doc. 50), wherein they contended that the Eighth Circuit's decision in Simpson sufficiently clarified the law to the point that the Defendants were now entitled to dismissal of the Complaint. The Court construed that "motion to dismiss" as a motion for judgment on the pleadings, ultimately granting it in part and denying it in part. See Doc. 53. As a result of that opinion, the remaining official capacity claims were dismissed as duplicative of the claim against the County, and those individual officials were dismissed from the action.
The parties filed the present cross-motions for summary judgment on November 2, 2018. After responses and replies were filed, both motions became ripe for decision on November 26, 2018.
"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). When, as here, cross-motions for summary judgment are filed, each motion should be reviewed in its own right, with each side "entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record." Wermager v. Cormorant Twp. Bd. , 716 F.2d 1211, 1214 (8th Cir. 1983). The Court must view the facts in the light most favorable to the non-moving party and give the non-moving party the benefit of any logical inference that can be drawn from the facts. Canada v. Union Elec. Co. , 135 F.3d 1211, 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of any material factual disputes. Fed. R. Civ. P. 56(a) ; Matsush*ta Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
If the moving party meets this burden, then the non-moving party must "come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Matsush*ta , 475 U.S. at 587, 106 S.Ct. 1348 (quoting then- Fed. R. Civ. P. 56(e) ) (emphasis removed). These facts must be "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Flexway Trucking, Inc. , 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "The nonmoving party must do more than rely on...
