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Prison Legal News v. Secretary, Florida Department of Corrections

United States Court of Appeals, Eleventh Circuit

May 17, 2018

PRISON LEGAL NEWS, A project of the Human Rights Defense Center, a Not-for-Profit Washington Charitable Corporation, Plaintiff-Appellee Cross Appellant,

          Appeals from the United States District Court for the Northern District of Florida D.C. Docket No. 4:12-cv-00239-MW-CAS

          Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and CONWAY, [*] District Judge.

          EDCARNES, Chief Judge:

         From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it.[1] Yielding to the temptation to commit an act that the law forbids can lead to bad consequences, including imprisonment. Prison officials have the duty to reduce the temptation for prisoners to commit more crimes and to curtail their access to the means of committing them. The Constitution does place some limits on the measures that corrections officials may use to carry out that duty, which is what this case is about.

         The Florida Department of Corrections has rules aimed at preventing fraud schemes and other criminal activity originating from behind bars, but inmates continually attempt to circumvent measures in place to enforce those rules. The Department, for its part, continually strives to limit sources of temptation and the means that inmates can use to commit crimes. One way it does that is by preventing inmates from receiving publications with prominent or prevalent advertisements for prohibited services, such as three-way calling and pen pal solicitation, that threaten other inmates and the public. In the Department's experience, those ads not only tempt inmates to violate the rules and commit crimes, but also enable them to do so.

         One publication the Department impounds based on its ad content is plaintiff Prison Legal News (PLN)'s monthly magazine, Prison Legal News. PLN contends that the Department's impoundments of its magazine violate the First and Fourteenth Amendments. After a bench trial, the district court ruled that the impoundments do not violate the First Amendment but the failure to give proper notice of them does violate the Fourteenth Amendment. We agree.


         A. Facts

         1. The Florida Department of Corrections

         Florida law requires the Department of Corrections to "protect the public through the incarceration and supervision of offenders, " to protect offenders "from victimization within the institution, " and to rehabilitate offenders. Fla. Stat. § 20.315(1), (1)(d). The Department strives to balance those mandates of public safety, prison security, and rehabilitation. That is no small task. It employs 16, 700 officers to oversee 100, 000 inmates in 123 facilities throughout Florida. Those officers enforce a multitude of rules to ensure prison security and public safety. See, e.g., Fla. Admin. Code rr. 33-602.101, .201, .203 (rules governing inmate care, property, and control of contraband).

         To promote its rehabilitation mandate, the Department grants inmates phone, pen pal, and correspondence privileges so that they can stay in touch with family and friends. Id. r. 33-210.101(9) (allowing inmates to correspond with pen pals); id. r. 33-602.201 app. 1 (authorizing inmates to keep up to 40 stamps for correspondence); id. r. 33-602.205(1) (granting telephone privileges). Those and similar privileges pose problems in Florida prisons and elsewhere. Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct criminal activity, thwarting efforts to protect inmates and the public. The record is heavy with evidence of that unfortunate reality.

         James Upchurch, the Department's Assistant Secretary for Institutions and Re-entry, testified that "[g]iven uncontrolled and unverifiable telephone access, inmates have been found to use such opportunities to harass the general public, [D]epartment employees, their victims[, ] and to search for new victims." He cited the example of incarcerated Mexican mafia members in California who used a network of prison phones to sell drugs and conduct other illegal activity. Prison Legal News itself has reported on instances of inmates abusing their phone privileges. See News in Brief: Florida, Prison Legal News, Nov. 2011, at 50 (reporting how an inmate discovered that the county jail's phone system provided double refunds each time a call did not go through, prompting the inmate to make calls and then hang up until he had made the $1, 250 he needed for bail); Mark Wilson, Reach Out and Defraud Someone: Oregon Jail Prisoners Commit Phone Scams, Prison Legal News, Nov. 2010, at 24-25 (reporting on inmates' use of prison phones to conduct identity theft scams, one of which resulted in the indictment of an inmate on 35 counts of identity theft); News in Brief: Florida, Prison Legal News, Sept. 2010, at 50 (reporting how a county inmate used the prison phones to call in bomb threats).[2]

         Like phone privileges, pen pal privileges may open doors to criminal activity. Inmates abuse pen pal privileges by soliciting kind-hearted but gullible people and then defrauding them. Pen pal scams are so common that the United States Postal Service warns customers that pen pal ads have "proliferated in recent years" and that "many ads placed by prisoners are part of a sophisticated mail fraud scheme that misuses postal money orders to bilk consumers out of their hard earned savings."[3]

         Inmates also abuse correspondence privileges. For instance, one Florida inmate sent threatening letters to a federal magistrate judge, one of which informed the judge that someone would "stick a curling iron up [the judge's] twat and plug that sucker in, " while another stated that the inmate was coming to kill her. See United States v. Adamson, No. 4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23, 2007) (unpublished). Another way inmates abuse correspondence privileges is by using their stamps as a currency in the underground prison economy to buy drugs, sexual favors, and anything else they can bargain for. See United States v. Becker, 196 Fed.Appx. 762, 763 & n.1 (11th Cir. 2006) (unpublished) (noting how one inmate ran a prison gambling operation where inmates paid him with stamps and another inmate used stamps to pay for heroin); United States v. Martin, 178 Fed.Appx. 910, 911 (11th Cir. 2006) (unpublished) (stating how an inmate used letters with hidden compartments to smuggle heroin into the prison, which he then gave to another inmate in exchange for stamps). The problems associated with stamps increase when inmates can send their stamps to "cash-for-stamps" companies that will exchange the stamps for cash at a percentage of the stamps' face value. Inmates can use the cash to purchase goods and services outside prison walls, which facilitates contraband smuggling and the corruption of prison guards.

         Recognizing that when inmates abuse their privileges it threatens other inmates and the public, the Department has sought to prevent that abuse. First, it has prohibited three-way calling, which includes any type of call transferring. Fla. Admin. Code r. 33-602.205(2)(a). Three-way calling allows inmates to circumvent the regulations the Department has in place to stop them from using prison phones to harass the public, arrange contraband smuggling, and conduct other criminal activity. The Department's regulations restrict inmates to calling no more than ten people on a pre-approved list and require each outgoing call to begin with an automated message informing the recipient that the call is coming from a Department prison. Id. r. 33-602.205(2)(a), (g). The Department also monitors and records some inmate calls. Id. r. 33-602.205(1).

         Second, the Department does not allow inmates to "solicit or otherwise commercially advertise for money, goods, or services, " which includes "advertising for pen-pals" and "plac[ing] ads soliciting pen-pals" on social media and inmate pen pal websites. Id. r. 33-210.101(9). Third, inmates cannot use "postage stamps as currency to pay for products or services." Id. r. 33-210.101(22). Fourth, inmates cannot conduct a business while confined, which includes "any activity in which the inmate engages with the objective of generating revenue or profit while incarcerated." Id. r. 33-602.207(1)-(2). That rule exists because inmate businesses increase the risk of fraud and burden Department staff with monitoring more mail and phone activity. Id. r. 33-602.207(2).

         Just as some inmates abuse their privileges, some also evade or break the rules restricting their privileges. For example, the Department's telephone security vendor can detect three-way call attempts by the clicking noise that occurs when a call is transferred, but inmates will blow into the receiver when transferring a call to mask that clicking noise. There are nearly 700, 000 three-way call attempts each year in Department prisons, leading officials to believe that inmates would not make so many attempts if some were not succeeding. Disciplinary reports confirm that some attempts do succeed. Despite the rule prohibiting pen pal solicitation, some inmates manage to post profiles on pen pal solicitation websites. Inmates also succeed in exchanging stamps for cash -- one cash-for-stamps company deposited over $50, 000 into inmates' accounts over several years. And as for the prohibition against conducting a business, one inmate, a jailhouse lawyer known as "H&R Block, " lived up to his nickname by running a tax filing business where he would file tax returns on behalf of other inmates. See News in Brief: Florida, Prison Legal News, Apr. 2010, at 50. Of course, those tax returns were false, and the inmate faced up to 90 years in prison for his scheme. Id.

         2. The Department's Admissible Reading Material Rule

         Because some inmates abuse their privileges and break the rules put in place to stop that abuse, the Department takes additional steps to help increase prison security and public safety. As Department official Upchurch testified, protecting the public "goes further than just . . . keeping the inmates inside the fence and not allowing them to be out committing the crimes that they commit." Prison security challenges evolve. Upchurch cited the availability of contraband cell phones, which give inmates unregulated internet access and have been used in other states to orchestrate prison riots and arrange assaults on prison staff. PLN's expert acknowledged that Department officials must be proactive in addressing security problems. As Upchurch testified, "act[ing] after the fact [in the prison business] risk[s] someone's life."

         One of the ways the Department tries to stay a step ahead of inmates is to screen all incoming publications for content that might enable them to break prison rules. See Fla. Admin. Code r. 33-501.401(3). Under the Department's Admissible Reading Material Rule, inmates can "receive and possess publications . . . unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any institution of the [D]epartment . . . or when it is determined that the publication might facilitate criminal activity." Id. For example, to bolster the Department's ban on inmates possessing firearms or other dangerous weapons, id. r. 33-602.203(2), the rule prohibits inmates from receiving publications that "describe[ ] procedures for the construction of or use of weapons, " id. r. 33-501.401(3)(a).

         The Admissible Reading Material Rule applies that same logic to ads for prohibited services. A publication is impounded if it contains ads for three-way calling services, pen pal solicitation services, cash-for-stamps exchange services, or for conducting a business, but only "where the advertisement is the focus of, rather than being incidental to, the publication[, ] or the advertising is prominent or prevalent throughout the publication." Id. r. 33-501.401(3)(l). The Department can also impound any publication that "otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person." Id. r. 33-501.401(3)(m). Once mailroom staff impound an issue of a magazine for violation of the rules, it is withheld from inmates until the Department's Literature Review Committee makes a final decision about whether the issue does violate the Admissible Reading Material Rule. Id. rr. 33-501.401(5), (8), (14)(a).[4] Mailroom staff cannot impound all issues of an entire publication in advance; instead, they must separately review and decide whether each issue of a publication violates the Admissible Reading Material Rule. Id. r. 33-501.401(5).[5]

         3. Prison Legal News and the First Impoundments of It

         Prison Legal News is a monthly magazine founded in 1990 that reports on legal developments in the criminal justice system and other topics that affect inmates. About 70% of the magazine's 7, 000 nationwide subscribers are inmates. It has subscribers in all 50 state prison systems and the Federal Bureau of Prisons. Only about 70, or one percent of the 7, 000 subscribers, are Florida inmates. Prison Legal News began carrying advertisements in 1996 to cover its publication costs. Not surprisingly, the ads are placed by companies whose target audience is prisoners. Two examples are law firms specializing in prisoner litigation and schools offering inmate correspondence courses. Nothing wrong with that.

         In 2003 the Department began impounding some Prison Legal News issues based on ad content. The problem ads included ones for pen pal solicitation, cash-for-stamps exchange services, and three-way calling services. The ads for pen pal solicitation offered inmates the opportunity to post on the company's website a profile with a photo and address, and the public could search for that profile by the inmate's age, race, and other features. The cash-for-stamps ads gave inmates the opportunity to exchange stamps for cash at a percentage of the stamps' face value. The three-way calling ads offered discount phone services on collect calls from inmates. The Department determined that those phone services fell under its broad definition of "three way calling" because the companies forwarded or transferred the inmates' collect calls to the call recipient's home phone, cell phone, or blocked home phone number.[6] The Department determined that all three types of ads violated Rule (3)(l), but it was especially concerned with the ads for three-way calling because it believed that its telephone security vendor could not trace inmate calls made through the discount phone services.

         PLN sued the Department in 2004 to stop the impoundments. After the Department's telephone vendor gave assurances that it could block three-way call attempts, the Department agreed in 2005 not to impound Prison Legal News as long as all the problematic ads were incidental to the overall publication. Because the Department began allowing inmate subscribers to receive Prison Legal News we rejected PLN's argument that an injunction was necessary to stop the impoundments, and we affirmed the district court's grant of judgment as a matter of law to the Department. See Prison Legal News v. McDonough, 200 Fed.Appx. 873, 876-78 (11th Cir. 2006) (unpublished).

         4. The Department's Renewed Impoundments of Prison Legal News

         That peace was short-lived. Several changes after 2005 undermined the truce and led to the current conflict. For one thing, the number and size of rule-defying ads increased after 2005, resulting in their becoming less incidental and more prominent.[7] As the ads became more prominent, Department officials noticed an increase in the number of inmates sending stamps to cash-for-stamps companies. They also became concerned about a phone technology called Voice over Internet Protocol, which makes it harder to detect three-way call attempts by transferring calls over the internet with no noise. That technology had not been an issue in 2005, but in the following years it became more widespread and more of a problem.

         New types of ads offering "prisoner concierge" and "people locator" services also began to appear in Prison Legal News after 2005. Prisoner concierge companies offer inmates a variety of administrative and financial services. One such company, Prisoner Assistant, ran ads offering inmates "access to hundreds of professional services that have never before been available to prisoners, " including money orders, online fund transfers, internet purchases and research, website development, cell phone contracts, and Green Dot cards (prepaid debit cards that can be reloaded and used to send money). That company even provides inmates with an "Executive Assistant to manage [the inmate's] file and provide personal attention to [the inmate's] requests, " and claimed in its ad that "[i]f it can be done, we will try to do it." According to the Department, prisoner concierge companies threaten prison security and public safety by, among other things, making it easier for inmates to create an alternate identity that conceals their inmate status from people on the outside, enabling them to violate prison rules and commit crimes.

         People locator companies are just that. One such company placed ads claiming that it can find "just about anyone" including "hard to find people [and] unlisted numbers and address[es]." That company has a database of 1.2 billion records and provides inmates with a person's date of birth, email address, any unlisted telephone numbers, and social security number. With reason, the Department fears that inmates will use people locator services to perpetrate scams or allow inmates to find and harm judges, jurors, witnesses, or anyone else the inmate may want to harass or harm.

         All of those developments between 2005 and 2009 - the increasing number and size of the rule-defying ads, the growth of internet-based phone technology, and the appearance of prisoner concierge and people locator ads - led the Department to begin impounding Prison Legal News again in September 2009.[8]The Department decided that the ads for three-way calling services, pen pal solicitation services, and cash-for-stamps exchange services violated Rule (3)(l). It also determined that the ads for prisoner concierge and people locator services violated Rule (3)(m), the provision prohibiting any publication that "presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person." Id. r. 33-501.401(3)(m). The Department impounds other publications that violate those rules, but it is the only corrections department in the country that impounds Prison Legal News based on its ad content.

         5. The Department's Failure to Provide Notice to PLN

         At the time of trial in January 2015, the Department had impounded every issue of Prison Legal News since September 2009, a total of 64 issues (the magazine has 12 issues per year). The Admissible Reading Material Rule requires the Department to send to all publishers a notice form listing the "specific reasons" for an impoundment. Fla. Admin. Code r. 33-501.401(8)(b). Despite that rule, the Department did not send PLN a notice form for 26 out of the 62 monthly issues it impounded between November 2009 and December 2014, which means that PLN did not receive a notice form for 42% of the issues impounded during that time span. That number rises to 87% when defective notice forms that did not list the reasons for the impoundment are considered.

         When PLN did receive a notice form for an impounded issue, it appealed the impoundment decision to the Department's Literature Review Committee, which makes the final decision whether an issue violates the Admissible Reading Material Rule. See id. rr. 33-501.401(14)(a), (15)(a). Those appeals were unsuccessful, so PLN sued the Department in November 2011 to stop the impoundments.

         B. Procedural History

         PLN brought two claims under 42 U.S.C. § 1983 against the Department Secretary in her official capacity. First, it claimed that Rules (3)(l) and (3)(m), as applied to Prison Legal News, violate the First Amendment. Second, it claimed that the Department's failure to provide PLN with proper notice for each impounded monthly issue violated its right to procedural due process under the Fourteenth Amendment. PLN sought declaratory and injunctive relief against the Department.

         After a bench trial, the district court ruled against PLN on the First Amendment claim and for it on the Fourteenth Amendment claim. The court entered an injunction requiring the Department to provide PLN with notice each time it impounded a monthly issue of the magazine and the reason for the impoundment. The Department appeals the court's judgment that it violated PLN's due process rights. PLN ...

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