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Prison Legal News v. County of Cook

United States District Court, N.D. Illinois, Eastern Division

November 21, 2016

COUNTY OF COOK, ILLINOIS, et al., Defendants.


          Joan B. Gottschall United States District Judge

         Plaintiff operates a not-for-profit organization called the Human Rights Defense Center and publishes both a monthly journal called Prison Legal News and an informational handbook called Prisoners' Guerilla Handbook to Correspondence Programs in the United States & Canada (“Prisoners' Handbook”). Defendants are County of Cook, Illinois, which operates the Cook County Jail (“CCJ”); Thomas Dart, the Sheriff of Illinois; and Nneka Jones Tapia, the executive director of CCJ. Plaintiff claims that it sent approximately 112 issues of Prison Legal News and at least 12 copies of Prisoners' Handbook to CCJ since March 2015, only to have them improperly “censored” by defendants. Before the court is plaintiff's motion for a preliminary injunction [6]. Plaintiff seeks a declaration that defendants' mailroom policies and practices at CCJ violate its First Amendment, due process and equal protection rights under the United States Constitution, and requests that defendants be enjoined from applying CCJ's mailroom policies and practices in an unconstitutional manner.

         I. Background

         Plaintiff publishes and distributes a monthly journal, Prison Legal News, which contains correctional facility, criminal justice, and legal news affecting prisoners. This publication, along with plaintiff's softcover book, Prisoner's Handbook, is distributed to some 2, 600 correctional facilities around the country-although CCJ is not one of them. CCJ has adopted a mailroom policy, General Order No. 14.10 (effective July 27, 2007), which provides that “[n]o inmate is permitted to receive subscriptions to magazines or periodical publications” unless they are sent directly to the inmate by a “person” not in custody.[1] Pl.'s Reply, Dkt. 35, Exh. A, ¶ III(L); Exh. B, (II)(1). Paperback books are permitted, up to three per mailing, but may be rejected “due to legitimate security concerns or inappropriate content, ” in which case the inmate will be notified by means of a “Notice of Mail Return” receipt. Id. The general order also provides that incoming “correspondence” may be rejected for a number of reasons, including when the item contains “information regarding the manufacture of explosives, weapons, or drugs, ” “threats or details of criminal activity, ” or has “content intended to assist in disrupting the orderly operation of” CCJ. Id., ¶ III(H). Returned mail and packages will be stamped “return to sender” and an entry will be made in the “Mail Return” logbook. Id.

         General Order 14.10 was amended on October 9, 2015 by means of a General Order bearing the number Ch. 1. Dkt. 35, Exh. B. This updated general order allowed inmates to “have access to daily editions of newspapers in divisional recreation rooms and/or divisional law libraries.” Id., Exh. A, ¶ II (5). However, Prison Legal News is not one of the permitted newspapers; in fact, only USA Today is made available to detainees in common areas and law libraries. The updated 2015 general order also did not alter the inability of prisoners to receive subscriptions or periodicals directly from publishers. This restriction remains in place.

         CCJ instituted another mail room policy change in September 2016 that purportedly made Prison Legal News available to inmates in common areas and/or the law libraries, or possibly by subscription. The parties disagree as to the scope and effect of this mailroom policy change: the policy change has not been reduced to paper or formalized in any fashion, but instead was instituted via oral directive. Further, as will be discussed below, defendants themselves seem to be unclear about the exact nature of the oral policy change. At the very least, they have not made its nature clear to the court.

         According to plaintiff, CCJ's current mailroom policy means that Prison Legal News and Prisoner's Handbook are not being delivered to their intended recipients. Plaintiff argues that the censorship of its various publications was done without notification and without an opportunity to appeal, in violation of its Constitutional due process rights.[2] Plaintiff further argues that the CCJ mailroom policy permits an improper censorship of speech in violation of the First Amendment. Finally, plaintiff contends that defendants' policy of selectively allowing newspapers into CCJ's common areas and law libraries is a violation of its right to equal protection of the laws.[3]

         Defendants argue that plaintiff's lawsuit is improper because it does not seek to further a basic goal of preliminary injunctions-maintaining the status quo pending a further determination of the parties' rights-but instead “seeks to overturn the status quo and force CCJ to change its policy before a further determination of the parties' rights.” Defs.' Resp., Dkt. 25 at 2. Defendants maintain that this case is not about vindicating detainees' right to access of newspapers and books (as detainees at CCJ already have access to these items) but instead is a “challenge [to] whether CCJ can establish reasonable regulations governing the flow of thousands of pieces of mail to thousands of detainees, many of whom may wish to misuse seemingly innocuous materials in order to injure other detainees.” Id. Defendants also point out that they have agreed to make Prison Legal News available to detainees in the law library and recreational areas-a concession they argue “strongly call[s] into question the need for a preliminary injunction” and renders plaintiff's complaint moot. Id.

         Plaintiff's reply memorandum argues that any recent changes to CCJ's mail procedures policy have been instituted pursuant to oral changes that have not been reduced to writing, and that, contrary to defendants' assertions in their response, Prison Legal News has not been made available in common areas or law libraries. Dkt. 35 at 2. Specifically, plaintiff points to the deposition testimony of Daniel Korso, Deputy Chief of Staff at the Cook County Department of Corrections, and his explanation of the September 2016 oral directive:

Q: Can you explain the contents of the oral directive about inmate monthly periodical subscriptions that took effect in September of 2016?
A: Sure. Cook County Department of Corrections are [sic] now allowing monthly subscriptions to periodicals, so long as the majority or substantial portion of that periodical has to do with legal, criminal justice or prison-related information. Assuming that it does, and it is on a pre-approved - or it is pre-approved by our Executive Director, inmates are as stated allowed to subscribe and receive the subscription.

Q: Do you know which monthly periodicals inmates have been receiving copies of under the September oral directive?

A: Yes.
Prison Legal News Prison Legal News USA Today Prison Legal News

Dkt. 35, Exh. C., at 20-40. Based on this testimony, plaintiff argues that the 2016 oral directive appears to have been implemented specifically in response to this lawsuit, that it is insufficiently explained and identified, and that it does not cure the unconstitutionality of defendants' current mailroom policy.

         II. Preliminary Legal Issues

         The parties have raised two issues that require attention before the court can turn to the First Amendment and due process claims: mootness and estoppel. The court addresses each in turn.

         A. Mootness

         Defendants assert that plaintiff's cause of action is moot because they have made Prison Legal News available in CCJ law libraries and recreational areas. In response, and as noted above, plaintiff highlights the testimony of Daniel Korso indicating that Prison Legal News has not been made available in libraries and common areas (although the possibility exists, based again on Mr. Korso's testimony, that it is available by inmate subscription). Plaintiff also focuses on the fact that defendants have not reduced the oral directive to writing, suggesting that defendants' actions are intended only as a response to this lawsuit and do not effectively moot the cause of action. The court accordingly examines the issue of defendants' alleged cessation of conduct and the effect of any cessation upon plaintiff's request for a preliminary injunction.

         It is well-established that a court's power to grant injunctive relief “only survives if such relief actually is needed.” Nelson v. Miller,570 F.3d 868, 882 (7th Cir. 2009). Injunctive relief is mooted when “there is no reasonable expectation that the wrong will be repeated.” Milwaukee Police Ass'n v. Jones,192 F.3d 742, 747 (7th Cir. 1999) (internal quotation marks omitted). Voluntary cessation of conduct does not usually moot a claim for injunctive relief. Lipton v. Chattem, Inc., 289 F.R.D. 456, 461 (N.D. Ill. 2013); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,528 U.S. 167, 189 (2000) (a defendant's voluntary cessation of a challenged practice does not necessarily moot a case); Vincent v. City Colleges of Chicago,485 F.3d 919, 925 (7th Cir. 2007) (“[v]oluntary cessation of unlawful activity does not moot every request for prospective relief”) (citations omitted). To truly establish that a case is moot, and therefore subject to dismissal as a matter of right, a defendant must overcome a heavy burden. The defendant must show “that it is absolutely clear that allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 ...

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