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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Canadian Coalition Against the Death Penalty, et al.,
Plaintiffs,
vs.
Charles L. Ryan,
Defendant.
No. CIV 02-1344-PHX-EHC
269 F. Supp. 2d 1199
May 16, 2003, Decided
May 19, 2003, Filed
ORDER
Pending before the Court are (1)
Plaintiffs' Motion for Summary Judgment [Dkt. 38], and (2) Defendant's Motion
for Summary Judgment. [Dkt. 37]. The parties have filed the appropriate
Responses [Dkts. 40, 41] and Replies. [Dkts. 42, 43]. Plaintiffs seek (1) a
declaration that the Arizona statutes codifying House Bill 2376 n1 ("HB
2376") are unconstitutional, and (2) a permanent injunction to enjoin
Defendant n2 from enforcing HB 2376. Defendant seeks dismissal of Plaintiff's
Complaint.
I. Factual Summary and Procedural History
Plaintiffs are prisoner and
human rights advocacy groups that maintain Internet[*1201] websites "as an
integral part of their advocacy and public education work." [Dkt. 33, p.
2, P 2]. Plaintiffs publish first-hand accounts from prisoners on their
websites and often send information to
prisoners in the mail.
In 2000, the Arizona Legislature
passed HB 2376. Pursuant to Arizona statute, inmates housed by the Arizona Department of Corrections
("ADC") are prohibited from sending mail to or receiving mail from a
communication service provider ("Provider"), or from having access to
the Internet through a Provider. ADC is required to sanction inmates who (1)
correspond or attempt to correspond with a Provider, or (2) request any person
access a Provider's website.
Former Director Terry Stewart
subsequently implemented Director's Instruction # 156 ("DI # 156") to
set forth statutory prohibitions regarding inmate Internet access. Pursuant to
DI # 156, n3 any inmate suspected of violating the Internet policy received a
written notice from ADC alerting the inmate (1) unauthorized Internet use had
been detected; (2) about the website(s) where information regarding the inmate
had appeared; and (3) disciplinary sanctions would be administered and criminal
sanctions might result if the inmate did not have all information regarding the
inmate removed from the website(s) within three weeks.
ADC imposed disciplinary
sanctions on at least five inmates because their names appeared on Internet
websites. Each inmate stated either (1) he had requested his information be
placed on the website before such requests constituted ADC policy violations;
(2) he had no role in posting his information on the website; or (3) he had
been unsuccessful in having his information removed from the website. Sanctions
have included verbal counseling, reprimands, placement in Parole Class Three,
n4 extra duty, disciplinary detention, and loss of privileges with respect to
visits, phone calls, and commissary.
Plaintiffs filed this action on July 18,
2002. [Dkt. 1]. On December 16, 2002, the
Court issued a Preliminary Injunction enjoining Defendant from enforcing the
statutes codifying HB 2376 pending a final determination of the
constitutionality of the statutes. [Dkt. 25].
II. Standing
Although actual enforcement of
HB 2376 is directed at prisoners, Plaintiffs have standing to challenge HB
2376's limiting effects on the circulation of their message. Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 64, 83 S. Ct. 631, 636 n.6, 9 L. Ed. 2d
584 (1963); LSO, Ltd, v. Stroh, 205 F.3d 1146, 1153-54 (9th Cir. 2000)
(following Sullivan).
III. Motions for Summary Judgment
Summary
judgment is proper "only if no genuine issues of material fact remain for
trial and the moving party is entitled to judgment as a matter of law." Block
v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir. 2001). The Court must view
evidence in a light most favorable to the nonmoving party. Id.
A.
Standard of Review
When constitutional rights of
both inmates and outsiders are implicated, n5 the [*1202] standard of review
becomes whether the regulation "is
reasonably related to legitimate penological objectives, or whether it
represents an exaggerated response to those concerns." Turner v. Safley,
482 U.S. 78, 87, 107 S. Ct. 2254, 2261, 96 L. Ed. 2d 64 (1987) (internal
quotation marks and citation omitted); see also Thornburgh v. Abbott, 490 U.S.
401, 411, 109 S. Ct. 1874, 1880 n.9, 104 L. Ed. 2d 459 (1989). This test has
four elements:
(1)
whether there is a valid, rational connection between the prison regulation and
the legitimate governmental interest put forward to justify it; (2) whether
there are alternative means of exercising the right that remain open to prison
inmates; (3) what impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison
resources generally and (4) whether there exist ready alternatives ... that
fully accommodate[ ] the prisoner's rights at de minimis cost to valid
penological interests."
Woodford, 299 F.3d at 878 (citing Turner, 482
U.S. at 89-91, 107 S. Ct. at 2262-63) (internal quotation marks omitted).
1.
Rationally related to a legitimate penological objective
Defendant asserts the blanket
restriction on communications between inmates and Providers is necessary to
prevent attempts to defraud the public and to preclude inappropriate contact
with minors, victims, or other inmates. [Dkt. 37, pp. 6-7]. However, existing
regulations and statutes already preclude such conduct. Arizona statutes
criminalize fraud, and ADC regulations prohibit inmates from sending mail with
the intent to defraud or otherwise illegally solicit assistance. A.R.S. Title
13, Chapter 23; ADC Department Order ("DO") 909.01, § 1.3.7. ADC
policies also prohibit inmates from corresponding with (1) minors; (2) victims
of their crimes; (3) other inmates; (4) any person who requests not to receive
mail from the inmate; or (5) "anyone to whom lewd, threatening, or similar
offensive material has been sent by the inmate[.]" DO 909.01, §
1.3.
Defendant also has methods in
place to enforce these existing regulations. First, inmates have no direct
Internet access. [Dkt. 33, p. 4, P 7]. Second, prison staff members may open
all incoming mail and inspect it for contraband. DO 909.02, § 1.1. Moreover,
all incoming mail that is not privileged may be read to determine if the
contents might facilitate criminal activity. Id. Third, outgoing mail may also
be read and examined for contraband. DO 909.03, §§ 1.2, 1.6. If ADC finds
extensive monitoring of inmate mail to be difficult or expensive, it is
permitted to impose limits on the volume of mail inmates may receive. n6 Crofton
v. Roe, 170 F.3d 957, 960 (9th Cir. 1999). Finally, current prison regulations
permit staff members to monitor and record inmates' telephone calls. DO 915.02,
§ 1.1; 915.05, § 1.1; [see also Dkt. 33, p. 7, P 21].
Defendant's remaining arguments
with respect to penological objectives also lack [*1203] merit because "prison authorities cannot avoid court
scrutiny under Turner by reflexive, rote assertions." Armstrong v. Davis,
275 F.3d 849, 874 (9th Cir. 2001), cert. denied, U.S. , 537 U.S. 812, 123 S. Ct. 72, 154 L. Ed. 2d 14. For
example, Stardust Johnson's testimony alone is insufficient to support
Defendant's assertions that "society as a whole may perceive confinement
as less punitive, and victims of crime may perceive that the individuals who
preyed upon them are not being adequately punished." [Dkt. 37, p. 9].
Likewise, Terry Stewart's
affidavit [Dkt. 16, Exh. A] does little to support Defendant's assertion that
"rehabilitative opportunities will be further limited." [Dkt. 37, p.
8]. Even when ADC was enforcing HB 2376, Stewart stated inmates were not
permitted Internet access for rehabilitation purposes because ADC could not
provide adequate supervision. [Dkt. 16, Exh. A, p. 2, P 7]. Stewart did not state
he anticipated greater resources in the future that would enable ADC to provide
such supervision. Rather than demonstrating HB 2376 is rationally related to
the proffered goal of rehabilitation, Stewart's affidavit indicates ADC is
unlikely to provide inmates with Internet access for rehabilitation purposes
regardless of the outcome of this action.
Finally, Defendant offers no evidence to
support the similarly speculative outcome that the goal of deterrence will be
impaired because "both the inmate and the general public may perceive
incarceration as 'less arduous.'" [Dkt. 37, p. 8]. Although prison authorities are permitted to
establish regulations in anticipation of potential problems, "they must at
a minimum supply some evidence that such potential problems are real, not
imagined." Woodford, 299 F.3d at 882 (citations omitted).
2.
Remaining Turner factors
The Ninth Circuit has held the "rational relationship factor of the Turner standard is a sine qua non[,]" and failure to satisfy this prong requires a finding of unconstitutionality. Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001). Because the Court finds the statutes codifying HB 2376 are not rationally related to legitimate penological objectives and are therefore unconstitutional, it need not consider the remaining Turner factors.
Accordingly,
IT
IS ORDERED that Plaintiffs' Motion for Summary Judgment [Dkt. 38] is GRANTED.
IT IS FURTHER ORDERED that
Defendant, Defendant's employees, agents, servants, attorneys, and all other
persons acting in concert or participation with Defendant are permanently
enjoined from, directly or indirectly, enforcing Arizona House Bill 2376,
codified at A.R.S. §§ 31-235(C), (D); 31-242; and 41-1604(A)(9).
IT
IS FURTHER ORDERED that Defendant's Motion for Summary Judgment [Dkt. 37] is
DENIED.
DATED this 16 day of May, 2003.
Earl H. Carroll
FOOTNOTES:
n1 A.R.S. §§ 31-235(C), (D);
31-242; and 41-1604(A)(9).
n2 Terry Stewart's
successor, Charles L. Ryan, has been substituted as Defendant in this action. Rule
25(d), Fed.R.Civ.P.
n3 HB 2376 and DI # 156 will be collectively referred to as HB
2376.
n4 Inmates in this parole
class are not eligible to earn release credits.
n5 Although the parties have
stipulated the Arizona Legislature "was motivated, in part, by the concern
that crime victims and their relatives would be upset by viewing Internet web
sites [sic] featuring the prisoners who had victimized them" [Dkt. 33, p.
4, P 8] (emphasis added), the record does not reflect HB 2376 "is
centrally concerned with restricting the rights of outsiders rather than
prisoners." California First Amendment Coalition v. Woodford, 299 F.3d
868, 878 (9th Cir. 2002) (emphasis added).
n6 Although Defendant
asserts the 1973 consent decree in Hook v. Arizona, 907 F. Supp. 1326, CIV
73-97-PHX-SMM, inhibits ADC's ability to limit the volume of mail inmates
receive, Defendant failed to cite any language in the Hook decree to support
this assertion. Moreover, the Court notes Defendant has a motion pending to
vacate the Hook decree and dismiss that case. [Hook, Dkt. 747].
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