Young v. Werholtz et al

Filing 26

MEMORANDUM OPINION AND ORDER: the Court's February 27, 2014 Order 25 is vacated to the extent it dismissed official-capacity Defendant Rick Raemisch from the case. Defendants' Motion to Dismiss 15 is granted as to Defendants Kevin Mily ard, Timothy Usry, Bernadette Scott, Iris Christians, and Michele Wingert in their individual capacities; they are dismissed from this civil action. Plaintiffs' First and Fourteenth Amendment claims for declaratory and injunctive relief will proceed against CDOC Executive Director Rick Raemisch in his official capacity, by Judge Richard P. Matsch on 3/11/2014. (rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Richard P. Matsch
Civil Action No. 13-cv-01744-RPM
HARLEY QUINT YOUNG; and
SHARON YOUNG,
Plaintiffs,
v.
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, in his
official capacity1;
KEVIN MILYARD, former Warden of Sterling Correctional Facility and former Deputy
Director, in his individual capacity;
TIMOTHY USRY, SCF Administrative Services Manager, in his individual capacity;
BERNADETTE SCOTT, SCF Mail Room Supervisor, in her individual capacity;
IRIS CHRISTIANS, SCF Mail Room Sergeant, in her individual capacity;
MICHELE WINGERT, Captain, SCF, in her individual capacity,
Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Harley Quint Young (“Mr. Young”) is a prisoner at the Sterling Correctional
Facility (“SCF”), a state prison operated by the Colorado Department of Corrections
(“CDOC”). Plaintiff Sharon Young is Mr. Young’s mother. She lives in Boulder, Colorado.
In this civil action, Plaintiffs claim that Defendants’ policy and practice at SCF of censoring
materials printed from the Internet violates their First Amendment rights. [See Doc. 9 at 26-

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At the hearing on Defendants’ Motion to Dismiss, the Court dismissed all official-capacity Defendants from the
case with Plaintiffs’ agreement, based on the premise that the Colorado Department of Corrections was already a
named Defendant. That was not actually the case, nor could it be under the Eleventh Amendment absent the State of
Colorado’s consent to suit. See Alabama v. Pugh, 428 U.S. 781, 782-83 (1978). Colorado has not consented to suit
in federal court for claims brought under 42 U.S.C. § 1983. The Court will therefore retain Rick Raemisch as a
Defendant in his official capacity.

27.] Mr. Young also claims that the procedures followed by Defendants in censoring such
materials deny him the process he is due under the Fourteenth Amendment. [See id. at 27.]
Plaintiffs seek declaratory and injunctive relief against CDOC Director Rick Raemisch in his
official capacity, as well as nominal, compensatory, and punitive damages against the
individual-capacity Defendants. [See id. at 27-28.]
The following facts are alleged in Plaintiffs’ Amended Complaint and are accepted as
true for the purposes of deciding Defendants’ Motion to Dismiss:
CDOC Administrative Regulation 300-38, “Offender Mail,” governs prisoner access to
mail. AR 300-38 provides that “[a]ll items of value ordered or received through the mail
must be paid in full, purchased, and shipped by an approved source of supply.”

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regulation defines an “approved source of supply” as a:
Publisher, retail/wholesale dealer of mail order products for books, magazines, hobby
craft, faith items and health care items, or other items determined by the
administrative head, with an address or post office box and phone number, verifiable
with a commercial directory service.
Beginning in late 2009, Defendants Milyard, Usry, Scott, Christians and Wingert began
to require that all materials printed from the Internet and sent to SCF prisoners be sent from
an “approved source of supply,” as defined above, purportedly because materials printed
from the Internet are “items of value.”
Mr. Young’s mail has been rejected on five separate occasions. They can be summarized
as follows:
 June 18, 2010: Ann Phelps, a correctional officer in the SCF Mail Room, rejected a piece
of mail from Mr. Young’s mother-in-law containing an article of less than 20 pages that
was printed from the Internet; Phelps rejected it because the article was a “publication not
from an approved source.” Mr. Young then met with his case manager, Jean Petterson,
who told him that whenever a prisoner received a large amount of material printed from
the Internet the material would be deemed a book and denied. Young then initiated
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CDOC’s grievance process by filing a Step 1 Grievance. Defendant Bernadette Scott
denied the grievance because: (1) the material had a published date and publisher (and
therefore was a book); and (2) the material was not from an approved source of supply, as
required by AR 300-38. Young then filed a Step 2 Grievance. Mary Cox-Bergman, the
Administrative Services Manager at SCF at the time, denied the grievance and stated that
it was SCF’s practice to “reject books printed off the internet” because they are “sent in
from an unapproved source” and are also used by prisoners to defeat SCF’s limits on the
number of books inmates can have in their cells. Ms. Cox-Bergman has explained that,
although the term “book” is not defined by CDOC regulations, the mailroom staff used a
“common-sense determination” as to what was and was not a book. Young filed a Step 3
Grievance, which was denied. [Doc. 9 ¶¶ 58-67.]
 August 24, 2010: Plaintiff Sharon Young sent Mr. Young ten pages of material from
paizo.com, a fantasy content provider. The material was available for printing from the
Internet free of charge and not available from any other source. Patricia Manning, an
SCF Mail Room employee, rejected the material because it contained “pages from a book
– unauthorized source.” Young filed a Step 1 Grievance, which was denied by Defendant
Scott. Young filed a Step 2 Grievance. Ms. Cox-Bergman responded that the “[m]ail
room should have allowed this in in, if it is exactly what you are claiming – 6 pages of
material taken off the internet. This would not have been objected to by the Reading
Committee AR 300-26 Offender Reading Material. Mail Room has been reminded of this
direction.” Young filed a Step 3 Grievance, which was denied. [Id. ¶¶ 70-81.]
 March 27, 2012: Mr. Young’s brother sent him a 10-page short story entitled “SunPowered Car” that was printed for free from the Internet. The author explicitly allowed
readers to print the story and share it with others; the story was not available from any
other source. The SCF Mail Room rejected the material because it was an “e-book, ‘Sun
Powered Car’ by Robert Burton Robinson Copyright 2008[,] per Mail Room supervisor it
is not authorized – not approved source.” Mr. Young filed a Step 1 Grievance.
Defendant Scott denied the grievance because, even if the book were allowed to be
shared free of charge, “it[] still needs to come from an approved source. Which is from
paizo.com2, not family members. As your mail did not come from an approved source,
which violates the AR, I cannot offer any relief in this matter.” Mr. Young filed a Step 2
Grievance. Defendant Wingert denied the grievance, stating that “if an article, book, etc.
is published in book form and can be purchased through an approved source of supply” it
must come from an approved source of supply. Wingert also said that “E-books are not
currently allowed in the correctional facility and therefore e-books material would not be
allowed.” Mr. Young filed a Step 3 Grievance, which was denied. [Id. ¶¶ 82-102.]
 April 16, 2012: Sharon Young sent Mr. Young a six-page document printed from
paizo.com; the document was free and not otherwise available. The SCF Mail Room
rejected it for unknown reasons. Mr. Young filed a Step 1 Grievance. Defendant Scott
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It is not clear why Defendant Scott referenced paizo.com in regard to this grievance. The book was available for
free download and printing from www.robertburtonrobinson.com, the author’s website.

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denied the grievance, stating that “the items did not come from an approved source. Per
AR 300-38, books must come from an approved source, and at this point, your mother is
not an approved source.” Mr. Young filed a Step 2 Grievance. Defendant Wingert
denied the grievance because of the approved source rule. Mr. Young filed a Step 3
Grievance, which was denied. [Id. ¶¶ 103-112.]
 May 4, 2012: Sharon Young sent Mr. Young several pages of “The Life Story of
Insects,” which were printed from the Internet for free. “The Life Story of Insects” is
available in hardcover and e-book format. The SCF Mail Room rejected the material (it
is unclear who rejected it). Mr. Young filed a Step 1 Grievance. Defendant Christians
denied the grievance because: “As clearly stated in the AR any item needs to be shipped
by an approved source of supply, in accordance with AR 850-6. The sender of the copied
e-book is not an approved vendor.” Mr. Young filed a Step 2 Grievance. Defendant
Usry denied it, stating “Books must be order[ed] thru (sic) an approved source, and sent
in thru (sic) that source. Family members are not considered approved sources for the
purchase of books.” [Id. ¶¶ 113-121.]
Each time SCF Mail Room staff rejected material sent to Mr. Young, the material was
marked “Return to Sender” and sent out of the facility before Mr. Young was given notice of
the rejection and before he could file a grievance. [Id. ¶¶ 61, 80, 101, 111, 147.] The SCF
officials who responded to Young’s grievances did not review the censored material itself to
determine if the SCF Mail Room’s rejection of the material was appropriate. [Id. ¶ 148.]
In summer 2012, Mr. Young met with Defendants Scott and Usry to discuss his issues
with the SCF Mail Room. Following the meeting, Mr. Young filed a grievance requesting
that CDOC execute a written agreement that would allow him to receive printed Internet
material that complied with CDOC’s content restrictions. Defendant Scott responded to that
grievance, stating that, “[w]hile family members may send in printed internet pages, any
books printed from the internet[]are not allowed in to the offenders.” Defendant Usry also
responded to the grievance, and in reference to the several pages of the “Life Story of
Insects” sent in by Ms. Young, stated that it was denied because it “is an e-book, which is

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supposed to be viewed on an e-reader, which is not an approved item at this point. This item
was also sent in that is not [from] (sic) an approved source or vendor.”
Plaintiffs initiated this action on October 10, 2013.

Defendants moved to dismiss

Plaintiffs’ Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A
hearing was held on February 27, 2014. [See Doc. 25.]
DISCUSSION
Plaintiffs seek damages against the individual-capacity Defendants for their alleged
violations of Plaintiffs’ First Amendment rights and Mr. Young’s due process rights under
the Fourteenth Amendment.

Defendants have asserted a qualified immunity defense;

therefore, the burden is on Plaintiffs to establish that (1) Defendants violated the
Constitution; and (2) the applicable law was clearly established. Pearson v. Callahan, 555
U.S. 223, 231 (2009).
1. Qualified Immunity – Plaintiffs’ First Amendment Claims
At the hearing on Defendants’ Motion to Dismiss, the Court ruled that Plaintiffs have stated
plausible First Amendment claims. [See Doc. 25.] Under Turner v. Safley, 482 U.S. 78

(1987), when a prison regulation infringes on inmates’ constitutional rights, “the regulation is
valid if it is reasonably related to legitimate penological interests.” Id. at 89. In making this
determination, four factors are relevant: (1) whether there is a valid and rational connection
between the prison regulation and the legitimate governmental interest put forth to justify it;
(2) whether alternative means of exercising the right remain open; (3) whether
accommodation of the asserted right will have an impact on guards, other inmates, and the
allocation of prison resources; and (4) whether obvious, easy alternatives exist that fully

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accommodate inmates’ rights at de minimis cost to valid penological interests. Id. at 89-91;
see also Jones v. Salt Lake City, 503 F.3d 1147, 1153-54 (10th Cir. 2007).
As to the first Turner factor, Defendants have asserted three legitimate penological
interests which they contend are served by prohibiting access to printed Internet materials not
from an approved source: (1) preventing prisoners from circumventing property volume
limits, (2) ensuring that items of value sent into the prison are lawfully obtained by the
sender; and (3) preventing the introduction of contraband into the prison. The Court is
mindful of the deference owed to prison officials in administering prisons. But at this stage,
a plausible inference could be drawn that there is not a rational relation between those
interests and the SCF restriction. There are existing limits on property volume at SCF, and
there is no allegation in the Amended Complaint showing that printed Internet materials
somehow circumvent those rules and/or suggesting why printed Internet materials could not
be included for the purposes of calculating a prisoner’s property volume. Defendants’
interest in ensuring that “material of value received by an offender has been lawfully
obtained” [Doc. 15 at 10] is not implicated here, as the materials in question have been
alleged to be free and unavailable from traditional “approved sources” like publishers and
online retailers. [See Doc. 9 ¶¶ 69, 72, 85-87, 92, 98-99.] As to concerns regarding the
introduction of contraband, SCF regulations currently allow prisoners to receive a variety of
loose papers in the mail, see CDOC Admin. Reg. 300-383, and the Amended Complaint does

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CDOC AR 300-38, IV, A, 5 states: “When the offender bears the mailing cost, there is no limit on the volume of
letters the offender can receive or on the length, language, content, or source of mail or publications.” (emphasis
added). The AR defines “Publication” as follows:
Any information or material in the form of a book, booklet, pamphlet, magazine, periodical, newsletter,
photograph or other pictorial depiction of similar document, including stationery and greeting cards,

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not suggest that printed Internet materials somehow pose a greater or unique contraband risk.
This factor is neutral in the Court’s Turner analysis.
Defendants argue that the second Turner factor is satisfied because (1) Sharon Young can
send Mr. Young items of value by using an approved source of supply, and (2) Sharon
Young can send Young items printed from the Internet that are not of value. [See Doc. 15 at
11.] The first consideration is not a relevant alternative, because Sharon Young wants to
send, and Mr. Young wants to receive, items that are not of value. The second consideration
is plainly contradicted by the allegations in the Amended Complaint, which deals with
repeated SCF rejections of materials printed from the Internet that are not of value. The
second factor weighs in Plaintiffs’ favor.
As for the third Turner factor, Defendants assert that “allowing Mr. Young to possess
materials of value without proof of purchase or from a non-approved source would have a
negative impact on guards, other inmates, and the allocation of prison resources” because it
will take more time to check those materials for contraband. [Doc. 15 at 11.] That assertion
is entitled to deference. Plaintiffs have alleged that allowing printed Internet materials would
not add significantly to the Mail Room’s existing contraband screening responsibilities. [See
Doc. 9 ¶ 27 (stating that stacks of pages are already allowed in unlimited volumes if not
“items of value”).] It is reasonable to infer that such a change would have some impact on
SCF resources. The third factor weighs slightly in Defendants’ favor.
Finally, there is an obvious, easy alternative that exists that would fully accommodate
inmates’ rights at de minimis cost to valid penological interests: Defendants could simply

writing, drawing or cartoon created by any individual, organization, company or corporation which is
distributed or made available through any means or media.

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implement a policy as to the allowable amount and processing of materials printed from the
Internet; this could be done by amending their Administrative Regulations, or Warden Falk
could

exercise

his

authority

to

execute

an

“Administrative

Regulation

Implementation/Adjustment” that would accomplish the broader goals of the applicable
Regulations. [See Doc. 9 ¶¶ 33-34, 36-38.] As Plaintiffs have described it, SCF Mail Room
staff is currently given virtually uncontrolled discretion to make censorship determinations.
This factor is the most compelling in Plaintiffs’ favor.
Accordingly, the Court concludes that Plaintiffs have pleaded facts from which a
plausible inference can be drawn that Defendants’ policies and practices regarding materials
printed from the Internet violate Plaintiffs’ First Amendment rights.
Defendants contend that they are nonetheless entitled to qualified immunity because
Plaintiffs have failed to carry their burden of showing that their First Amendment rights were
“clearly established.” [See Doc. 15 at 18-19.] A right is clearly established when it is
“sufficiently clear that a reasonable official would have understood that his conduct violated
the right.” Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001). “Ordinarily, in order for
the law to be clearly established, there must be a relevant Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other circuits must have
found the law to be as the plaintiff maintains,” Medina v. City & County of Denver, 960 F.2d
1493, 1498 (10th Cir. 1992), such that existing precedent has “placed the statutory or
constitutional question beyond debate,” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011).
Plaintiffs assert that it is clearly established that inmates have a First Amendment right to
receive information while in prison to the extent that right is not inconsistent with the
legitimate penological objectives of the prison. [See Doc. 19 at 20-23.] That statement of
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law is accurate, see Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (citing Pell
v. Procunier, 417 U.S. 817 (1974)), but it is stated at such a “high level of generality” that it
is not a great help in deciding this issue. al-Kidd, 131 S. Ct. at 2084. Plaintiffs do not cite a
single Supreme Court or Tenth Circuit case involving the same or similar circumstances, nor
do they show that the weight of authority from other jurisdictions supports their position.
Accordingly, Plaintiffs have failed to carry their burden of showing that, based on existing
precedent, it was sufficiently clear that a reasonable official in Defendants’ position would
have understood that their conduct violated Plaintiffs’ First Amendment rights.

The

individual-capacity Defendants are entitled to qualified immunity on Plaintiffs’ First
Amendment claims.
2. Qualified Immunity - Mr. Young’s Procedural Due Process Claim
Mr. Young alleges that his right to procedural due process under the Fourteenth
Amendment was violated because Defendants:

(1) did not provide him any means of

reviewing the material that was rejected by the SCF Mail Room; (2) limited his recourse to
grieving the person or office that rejected the material in the first place; and (3) mailed the
material back to the sender before the prison’s grievance process was initiated. [See Doc. 19
at 19.]
Mr. Young’s first argument fails because the case law he cites in support of his position
only establishes that prisoners have a right to receive notice that their mail has been withheld
or rejected; neither case established a prisoner’s right to review the material itself. [See id.
(citing Krug v. Lutz, 329 F.3d 692, 697 (9th Cir. 2003); Murphy v. Mo. Dept. of Corrs., 814
F.2d 1252, 1258 (8th Cir. 1987).]

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Mr. Young’s second argument is contradicted by his own allegations. It is true that a
prison’s decision to withhold mail must be accompanied by minimum procedural safeguards,
one of which is that “complaints [shall] be referred to a prison official other than the person
who originally disapproved the correspondence.” Jacklovich, 392 F.3d at 433 (quoting
Procunier v. Martinez, 416 U.S. 396, 418-19 (1974), overruled on other grounds by
Thornburgh v. Abbot, 490 U.S. 401 (1989)). Plaintiffs’ Amended Complaint alleges that
SCF officials provide that process here. For example, SCF’s June 18, 2010 rejection of Mr.
Young’s mail involved the following steps: Ann Phelps, a correctional officer in the SCF
Mail Room, rejected the mail and provided Young a Rejection Notice [Doc. 9 ¶¶ 58-59];
Defendant Scott denied Mr. Young’s Step 1 Grievance [id. ¶ 64]; Mary Cox-Bergman denied
Young’s Step 2 Grievance [id. ¶ 66]; and the Complaint does not allege who denied Young’s
Step 3 Grievance [see id. ¶ 67]. Every mail rejection involved multiple SCF officials
reviewing Mr. Young’s complaints. Accordingly, Mr. Young has failed to allege facts
showing that SCF officials did not refer complaints “to a prison official other than the person
who originally disapproved the correspondence.” Jacklovich, 392 F.3d at 433.
Mr. Young’s also alleges that, because rejected materials are sent out of SCF before Mr.
Young can initiate the grievance process, the Defendants’ subsequent grievance denials were
made without actually reviewing the material.

[See Doc. 9 ¶¶ 147-48.]

Implicit in

Jacklovich’s holding that due process minimally requires an independent review of a
censorship decision is that the independent reviewer be able to review the material being
censored.

Under Mr. Young’s allegations, although Defendants employ a multi-tiered

review as a formal matter, the officials reviewing Young’s grievances do not have access to
the material itself to determine whether the SCF Mail Room’s censorship decision was
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appropriate; the only basis for review of an SCF Mail Room’s censorship decision is the
Mail Room official’s stated rationale for censoring the material. At this stage, Mr. Young
has stated a plausible procedural due process claim concerning SCF’s grievance process.
While Mr. Young has stated a plausible constitutional violation, the individual capacity
Defendants are nonetheless entitled to qualified immunity because Young does not direct the
Court to any case law clearly establishing that a prison must hold on to mail it rejects before
the grievance process is exhausted.

Based on Jacklovich and other Supreme Court

precedent, a reasonable official in Defendants’ position would not have known that a multilayered grievance process that did not include direct review of the censored material at each
stage would run afoul of the Fourteenth Amendment.
CONCLUSION
Given the Court’s conclusion that the individual-capacity Defendants are entitled to
qualified immunity on all claims, the Court need not reach Defendants’ arguments
concerning personal participation and the availability of damages under the Prison Litigation
Reform Act.
Upon the foregoing, it is
ORDERED that the Court’s February 27, 2014 Order [Doc. 25] is vacated to the extent it
dismissed official-capacity Defendant Rick Raemisch from the case, and it is
FURTHER ORDERED that Defendants’ Motion to Dismiss [Doc. 15] is granted as to
Defendants Kevin Milyard, Timothy Usry, Bernadette Scott, Iris Christians, and Michele
Wingert in their individual capacities; they are dismissed from this civil action. Plaintiffs’
First and Fourteenth Amendment claims for declaratory and injunctive relief will proceed
against CDOC Executive Director Rick Raemisch in his official capacity.
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Dated: March 11, 2014.
BY THE COURT:

s/Richard P. Matsch
______________________
Richard P. Matsch
Senior District Judge

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