Young v. Werholtz et al
Filing
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ORDER Denying 45 Defendant's Motion for Summary Judgment, by Judge Richard P. Matsch on 8/3/15. (ktera)
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 capacity.
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
In this civil action Harley Quint Young and his mother, Sharon Young, claim that the
Sterling Correctional Facility has violated the First Amendment to the United States
Constitution by restricting their communications through the U.S. mail of material
downloaded from the Internet. Mr. Young also claims that the procedures followed by the
Sterling Correctional Facility in censoring such materials deny him the process he is due
under the Fourteenth Amendment. The defendant, Rick Raemisch, who is sued in his official
capacity as the Executive Director of the Colorado Department of Corrections, moved for
summary judgment, contending that this case is now moot because the regulations in effect
when the specific rejections of Young’s mail occurred have been replaced and that the
modified AR 300-38, effective January 1, 2015, complies with the plaintiffs’ demands.
Because the defendant is named only in his official capacity, the Colorado Department of
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Corrections is the actual defendant. As such, this Order adopts the grammatical conventions
appropriate for an entity when referring to the defendant.
The parties have fully briefed the motion for summary judgment and have included
many exhibits, declarations, affidavits and excerpts from deposition transcripts. The
plaintiffs agree that the new regulation has eliminated the challenged restriction on Internet
material, but contend that this case is not moot because the defendant has not met the burden
of demonstrating that its voluntary conduct in enacting the new regulation makes it clear that
the allegedly wrongful past behavior could not reasonably be expected to recur. See United
States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)(“A case might
become moot if subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.”).
The plaintiffs contend that the defendant has a history of changing its conduct when
challenged by litigation and should not be trusted to adhere to or not to make wrongful
changes in the new regulation. This Court is aware of its obligation to presume the good
faith of public officers in performing their official duties. The difficulty in applying that
presumption in this case is that the lines of authority in both enacting mail regulations and
also applying them in actual practice are not clear. That is illustrated by the adoption of a
regulation in March 2014, while this case was pending, that eliminated mail consisting of
Internet downloads and was approved by Raemisch who testified that he did not read that
regulation before signing it.
At oral argument the defendant’s counsel did not concede that the earlier regulation
violated the plaintiffs’ First Amendment privileges and in the briefing that contention is
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repeated. Given that position, there is nothing to assure that the officials responsible for the
mail policy recognize the need to consider the First Amendment privilege of those seeking to
communicate with prisoners and the right of prisoners to receive communication from those
outside the prison.
What is also unclear is the due process protection given to inmates to challenge the
rejection of mail consisting of pages downloaded from the Internet by using the
administrative grievance system at Sterling Correctional Facility. Although inmates are to be
given notice when mail is rejected, it is not clear that the material rejected will always be
retained and, when it is retained, it is not clear that it will be retained for the duration of the
grievance process. AR 300-38 provides in pertinent part:
When the offender is permitted to designate disposition of the item
but fails to complete and return the form within ten days, DOC
employees will retain the item for 30 days from the date of
confiscation before disposing of the item in order to allow for the
offender to grieve the confiscation.
AR 300-39, IV.C.8.b. Counsel for plaintiffs indicated at oral argument that the grievance
process can sometimes take months to complete. Counsel for defendant stated that this
provision is read as giving an inmate 30 days to initiate the grievance process and that the
item would be retained thereafter for the time necessary to complete the grievance process.
Without the policy of keeping the item until the grievance process is concluded articulated in
the written regulation, however, and with no further evidence on the matter, it is unclear if
this is the policy in practice.
It is also unclear if the information given to the inmate concerning the content of the
rejected material gives an adequate opportunity for a challenge. When mail is rejected at
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Sterling Correctional Facility, the implicated inmate is notified of the rejection by AR Form
300-38D, Notice of Rejection/Disposition of Mail. This form identifies the rejected item by
notifying the inmate of to whom or from whom the mail is addressed or by providing the
rejected item’s publication name. The form contains a check list of reasons why the mail was
rejected or declared contraband and the correctional officer is to note the applicable reasons
by checking off the corresponding box for each reason. One reason listed is “Other.” There
is no designated space for a correctional officer to write in what he meant by rejecting the
mail as impermissible “Other.” Another listed reason is “Is in code and/or not understood
by the reader.” There is no designated space for a correctional officer to write in what he did
not understand or why he did not understand it. Other than the checked boxes, there is no
additional space on the form to describe the rejected mail generally.
In denying the defendant’s motion for summary judgment, it is not assumed that the
defendant has violated the First and Fourteenth Amendments. That determination is
dependent upon factual matters in dispute. Those disputes must be adjudicated at trial.
Accordingly, the plaintiffs are entitled to present their case for declaratory and injunctive
relief in a trial to the Court.
It is ORDERED that the defendant’s motion for summary judgment is DENIED.
DATED: August 3, 2015
BY THE COURT:
s/Richard P. Matsch
______________________
Richard P. Matsch
Senior District Judge
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