Althouse v. Palm Beach County Sheriff's Office

Filing 33

OPINION AND ORDER granting 25 Motion for Summary Judgment; denying 27 Motion to Strike. This case is CLOSED. Signed by Judge Kenneth A. Marra on 2/11/2013. (ir)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80135-CIV-MARRA
RICHARD CLYDE ALTHOUSE,
Plaintiff,

v.
PALM BEACH COUNTY SHERIFF’S OFFICE,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendant’s Motion for Summary Judgment (and
Memorandum of Law) (DE 25). Plaintiff responded (DE 26). Defendant replied (DE 30). The Court
has considered the briefs of the parties and is otherwise advised in the premises.
I. Background
Contraband smuggling in prison is an intractable problem. To solve it, corrections officers
in Palm Beach County detention facilities—which house approximately 3,000 inmates—open and
inspect all non-privileged incoming inmate mail to ensure that it does not contain contraband such
as weapons or drugs. (DE 25, Attach. 2: Michelle De Laura Aff. ¶ 4 [hereinafter “De Laura Aff.”]).
The property section of the Inmate Management Division of the Palm Beach County Sheriff’s Office
processed approximately 11,000 letters per month from 2008 through 2011. (De Laura Aff. ¶ 4).
There are generally four corrections officers responsible for processing this mail. (De Laura Aff. ¶ 4).
On September 19, 2011, the Palm Beach County Sheriff’s Office implemented a “postcard
only” policy to address concerns over inmates’ receipt of contraband in envelopes. The policy

provides, in pertinent part, that “[a]ll incoming mail, except legal mail and other specially approved
items, must be in postcard form.” (DE 25, Attach. 1 at 2: Palm Beach County Sheriff’s Office
Corrections Operating Procedures #929.00). Inmates may receive an unlimited number of postcards
without any restriction on their content; but the postcards must be between 3.5 x 5 inches and 4.25
x 6 inches, they must be solid color (no photos, art, or graphic designs), and they must be written or
typed in blue or black ink only. According to the Sheriff’s Office, there have been fewer incidents
of persons attempting to introduce contraband in envelopes since the implementation of the policy.1
Despite the postcard policy, inmates are allowed to visit with family and friends, they have to access
telephones to make collect calls, and they can receive an unlimited amount of written correspondence
(as long as it conforms with the postcard only policy).
Plaintiff, who is proceeding pro se as an unincarcerated citizen, challenges the Sheriff’s
Office’s postcard policy as an unconstitutional restriction on his freedom of speech in violation of
the First and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of
the Florida Constitution.2 Plaintiff seeks a declaratory judgment and injunctive relief.
The Defendant Sheriff’s Office moves for summary judgment on the ground that the policy
is reasonably related to legitimate penological interests based on the standards set forth by the
Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). In support of its motion, the Sheriff’s Office

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Plaintiff disputes this assertion because neither the Sheriff’s Office’s motion nor the affidavit that accompanies
it gives any figures for incoming mail since the Office implemented the policy.
2

W hile Plaintiff’s Complaint does not reference § 1983 as the vehicle for his claim, the Court interprets this
action as being brought under that statute. Moreover, the Court notes that “[t]he scope of the protection accorded to
freedom of expression in Florida under article I, section 4 is the same as is required under the First Amendment.” Dep’t
of Educ. v. Lewis, 416 So. 2d 455, 461 (Fla. 1982). Because the analysis of Plaintiff’s rights is the same under either the
Florida or Federal Constitution, the Court proceeds with a federal analysis.

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provides the affidavit of Michelle De Laura, who has been employed by the Sheriff’s Office for
approximately twenty years as the Section Manager of the property section in the Inmate
Management Division. De Laura states:
[The detention facilities] were continually receiving greeting cards contained in
envelopes that consisted of multiple layered parts. Senders placed drugs, tobacco,
money, and other contraband items between the layers of the card and glued the
layers together in an attempt to conceal the hazardous items within an envelope. It
was also common for the mail staff to discover drugs and drug paraphernalia
concealed in the seams of an envelope. Often, senders would include a small stack
of multiple page letters in an envelope where they would hide contraband between
the pages. There have been numerous incidences where drugs, tobacco, money, metal
pins, and other dangerous contraband have been located while opening and
inspecting letters arriving in envelopes. These types of incidents have occurred and
still occur through the use of fake legal mail as legal mail can be sent into the facility
in an envelope. Fire Rescue has responded to a number of suspicious white powder
incidences that occurred while opening incoming mail envelopes. The occurrence of
a chemical biological incident (white powder incident) results in a facility shutdown
and all inmate movement ceases. This affects the inmates, the staff, the general
public, the court system, and every other entity associated with the detention facility.
Since the implementation of the postcard only incoming general mail policy,
the number of incidences involving attempts to introduce contraband into the facility
by way of an envelope containing cards or multiple pieces of paper has greatly
diminished. However, even the limitation regarding the use of a postcard for
incoming general, non-privileged mail has not prevented all attempts to introduce
contraband into the facility.
De Laura’s affidavit lists numerous pre-postcard policy instances where marijuana was found
hidden in incoming mail, anniversary and greeting cards, and fake legal mail; pills were found
hidden in crumbled pieces of paper; needles and a razor blade were found in incoming mail; and
other suspicious powders and substances were found. (De Laura Aff. ¶ 4).3 According to De Laura

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De Laura attached to her affidavit photographs of some of the contraband discovered in envelopes prior to the
postcard policy being implemented. Plaintiff moves to strike the photographs and most of the sworn statements in De
Laura’s affidavit under Federal Rule of Civil Procedure 56(c)(2) on the ground that they cannot be presented in a form
that would be admissible as evidence. (DE 27). The Court denies Plaintiff’s motion because De Laura’s affidavit is based
on her personal knowledge, which she acquired as an employee of the Sheriff’s Office for twenty-six years. Moreover,

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and the Sheriff’s Office, having to open envelopes physically to inspect the contents of incoming
mail increases the possibility that contraband could be introduced into the jail facility through human
error; proscribing the use of envelopes would reduce the introduction of contraband because
inspecting postcards is less time consuming and easier to process.
Plaintiff opposes the Sheriff’s Office’s position on several grounds. First, Plaintiff argues that
the size, photo, and ink color restrictions of the postcard policy are arbitrary and serve no legitimate
penological interest. Second, Plaintiff disputes the Sheriff’s Office’s suggestion that the postcard
policy has been effective, i.e., has reduced the amount of contraband introduced in envelopes. Third,
Plaintiff opposes the Sheriff’s Office’s assertion that alternative means of communication exist for
someone who wants to reach an inmate. For the reasons set forth below, the Court finds that the
Sheriff’s Office’s postcard only policy does not unconstitutionally infringe Plaintiff’s First and
Fourteenth Amendment rights.4
any Sheriff’s Office records she reviewed that may have formed the basis for her statements would likely be admissible
at trial under Federal Rule of Evidence 803(6), and the photographs attached to her affidavit would likewise likely be
admissible. But even if these portions of De Laura’s affidavit were stricken, the Sheriff’s Office “need not prove that the
banned material actually caused problems in the past[] or that the materials are likely to cause problems in the future to
show a rational relationship between the postcard policy and jailhouse security. Moreover, it does not matter whether
[the Court agrees] with the defendants or whether the policy in fact advances the jail's legitimate interests. The only
question that [the Court] must answer is whether the defendants’ judgment was ‘rational,’ that is, whether the defendants
might reasonably have thought that the policy would advance its interests.” Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th
Cir. 1999) (citing Thornburgh v. Abbott, 490 U.S. 401, 417 (1989) (additional citations and internal quotations omitted));
see also Covell v. Arpaio, 662 F. Supp. 2d 1146, 1152–53 (D. Ariz. 2009) (“A court does not have to agree with the
officials’ proffered legitimate penological interest. The inquiry under Turner is not whether the policy actually serves
a penological interest, but rather whether it was rational for jail officials to believe that it would.”).
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Applying the Turner factors, courts have upheld the constitutionality of similar postcard only policies in the
face of First Amendment challenges. See, e.g., Covell, 662 F. Supp. 2d 1146 (granting summary judgment in favor of
defendant sheriff because the mail policy was “reasonably related to legitimate penological objectives.”); Gieck v.
Arpaio, No. CV 07-1143-PHX-NVW , 2008 W L 2604919 (D. Ariz. June 23, 2008) (rejecting plaintiff’s facial challenge
to defendant sheriff’s mail policy and granting summary judgment in favor of defendant sheriff); Gibbons v. Arpaio, No.
CV 07-1456-PHX-SM M (JCG), 2008 W L 4447003 (D. Ariz. Oct. 2, 2008); Gambuzza v. Parmenter, No. 8:09-cv-1891T-17TBM, 2010 W L 2179029 (M.D. Fla. May 28, 2010) (sua sponte dismissing a § 1983 case filed in forma pauperis
on the ground that the complaint lacked an arguable basis in law because “[c]ourts have found that the post-card only

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II. Summary Judgment Standard
The Court may grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The stringent burden of establishing the absence of a genuine issue of material
fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court
should not grant summary judgment unless it is clear that a trial is unnecessary,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and any doubts in this regard should be
resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The movant “bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. To discharge this burden, the
movant must point out to the Court that there is an absence of evidence to support the nonmoving
party’s case. Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and
the nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Electronic Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in the record . . . or showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party

mail policy is ‘reasonably related to legitimate penological interests’”) (citations omitted); Ditullio v. White, No. 8:10-cv00294-RAL-AEP (M.D. Fla. Jan. 28, 2010) (sua sponte denying plaintiff’s motion to proceed in forma pauperis and
dismissing his § 1983 claim because the defendants’ postcard policy was “reasonably related to legitimate penological
interests”).

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cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) and (B).
Essentially, so long as the non-moving party has had an ample opportunity to conduct
discovery, it must come forward with affirmative evidence to support its claim.
Anderson, 477 U.S. at 257. “A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). If the evidence advanced by the
non-moving party “is merely colorable, or is not significantly probative, then summary judgment
may be granted.” Anderson, 477 U.S. 242, 249–50. Plaintiff has not met his burden to come
forward with affirmative evidence to support his claim or raise genuine issues of material fact.
While Plaintiff throughout his response to Defendant’s motion alleges that facts are in dispute, he
points to no record evidence to substantiate his assertion. Plaintiff’s mere conclusory claim that
disputed questions of fact exist is insufficient.5
III. Analysis
The Supreme Court has thoroughly evaluated the scope of First Amendment rights in the
prison context. See, e.g., Procunier v. Martinez, 416 U.S. 396 (1974); Pell v. Procunier, 417 U.S.
817 (1974) ; Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977); Bell v. Wolfish, 441
U.S. 520 (1979); Turner v. Safley, 482 U.S. 78 (1987); Thornburgh v. Abbott, 490 U.S. 401 (1989);

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The Court notes that Plaintiff submitted the affidavit of a postal delivery worker who attested that the Palm
Beach County jail has rejected for delivery “index cards” sent as a postcard and “lined postcards.” (DE 26 at 39).
Plaintiff, however, has not alleged that he has attempted to communicate with an inmate at a Palm Beach County jail
facility by an index card or a lined postcard of the size permitted by the Sheriff’s policy, and that he has had that attempt
rejected. Since Plaintiff’s complaint was limited to “letters in envelopes sent to inmates” and to the restriction on
“sending photographs or any kind or (sic) material to any inmate confined in the Palm Beach County Jail,” (DE 1–2,
¶¶ 17, 23), this Court’s order does not address, nor should it be construed as approving, a Sheriff’s Office policy of
prohibiting communication with inmates by means which are the functional equivalent of a postcard.

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Shaw v. Murphy, 532 U.S. 223 (2001); Overton v. Bazzetta, 539 U.S. 126 (2003); Beard v. Banks,
548 U.S. 521 (2006). In 2001, the court summarized the relevant jurisprudence:
Traditionally, federal courts did not intervene in the internal affairs of prisons
and instead adopted a broad hands-off attitude toward problems of prison
administration. Indeed, for much of this country’s history, the prevailing view was
that a prisoner was a mere slave of the State, who not only forfeited his liberty, but
all his personal rights except those which the law in its humanity accords him. In
recent decades, however, this [c]ourt has determined that incarceration does not
divest prisoners of all constitutional protections. Inmates retain, for example, the
right to be free from racial discrimination, the right to due process, and, as relevant
here, certain protections of the First Amendment.
We nonetheless have maintained that the constitutional rights that prisoners
possess are more limited in scope than the constitutional rights held by individuals
in society at large. In the First Amendment context, for instance, some rights are
simply inconsistent with the status of a prisoner or with the legitimate penological
objectives of the corrections system. We have thus sustained proscriptions of media
interviews with individual inmates, prohibitions on the activities of a prisoners’ labor
union, and restrictions on inmate-to-inmate written correspondence. Moreover,
because the problems of prisons in America are complex and intractable, and because
courts are particularly ill equipped to deal with these problems, we generally have
deferred to the judgments of prison officials in upholding these regulations against
constitutional challenge.
Reflecting this understanding, in [Turner v. Safley, 482 U.S. 78 (1987),] we
adopted a unitary, deferential standard for reviewing prisoners’ constitutional claims:
When a prison regulation impinges on inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological interests. Under this
standard, four factors are relevant. First and foremost, there must be a valid, rational
connection between the prison regulation and the legitimate and neutral
governmental interest put forward to justify it. If the connection between the
regulation and the asserted goal is arbitrary or irrational, then the regulation fails,
irrespective of whether the other factors tilt in its favor. In addition, courts should
consider three other factors: the existence of alternative means of exercising the right
available to inmates; the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources
generally; and the absence of ready alternatives available to the prison for achieving
the governmental objectives.

Shaw, 532 U.S. at 228–30 (internal citations and quotations omitted); see also Perry v. Sec’y, Fl.

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Dep’t of Corr., 664 F.3d 1359, 1364–67 (11th Cir. 2011).
When applying the four Turner factors, the burden “is not on the State to prove the validity
of prison regulations but on the prisoner to disprove it.” Bazzetta, 539 U.S. at 132 (citations omitted).
Plaintiff has failed to do so here.6
A. The postcard only policy is rationally connected to prison security
Sealed envelopes provide a greater opportunity for the introduction of drugs and weapons
into jail facilities than postcards because envelopes can contain multiple pages of paper with folds
and creases that lend themselves to smuggling contraband. Postcards have no folds or creases. Even
if a jail staffer has to remove the stamp from a postcard to make sure no contraband lies beneath, that
effort pales in comparison to the effort necessary to inspect a sealed letter or a pop-up greeting card
thoroughly.
Plaintiff concedes that the postcard policy is related to a legitimate penological interest, but
disputes that the connection is rational. In support of this position, Plaintiff points to the Sheriff’s
Office’s admission that “fake legal mail” containing contraband has still entered the jail facility since
the policy was implemented. Moreover, Plaintiff asserts publishers still deliver books, papers,
magazines, and other periodicals to the jail, all of which contain colored inks, photos, pictures,
drawings, and, most importantly, more space for smuggling contraband than an envelope. In other
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Plaintiff’s status as an unincarcerated citizen does not change the fact that his challenge to the postcard policy,
a prison regulation concerning incoming correspondence, is subject to the deferential Turner analysis. See Thornburgh
v. Abbott, 490 U.S. 401, 413–14 (1989) (“As we have observed, outgoing correspondence was the central focus of our
opinion in [Procunier v. Martinez, 416 U.S. 396 (1974)]. The implications of outgoing correspondence for prison
security are of a categorically lesser magnitude than the implication of incoming materials. Any attempt to justify a
similar categorical distinction between incoming correspondence from prisoners (to which we applied a reasonableness
standard in Turner) and incoming correspondence from nonprisoners would likely prove futile, and we do not invite it.
To the extent that Martinez itself suggests such a distinction, we today overrule that case.”); see also Perry v. Sec’y, Fl.
Dep’t of Corr., 664 F.3d 1359, 1365 & n.1 (11th Cir. 2011).

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words, Plaintiff argues that the Sheriff’s Office’s policy cannot rationally be connected to reducing
the introduction of contraband for security purposes if the policy does not completely eliminate the
problem. The Court rejects Plaintiff’s argument because it is rational for the Sheriff’s Office to to
implement policies and procedures which reduce the amount of contraband entering its facilities,
even if the policies and procedures will not eliminate the problem completely.
B. Plaintiff has access to alternative means of communication
To exercise Plaintiff’s First Amendment rights, he can still send postcards to inmates, speak
with them via telephone, or arrange for visitation.7 Plaintiff does not address these alternatives except
to say that there are too many restrictions on the postcards, e.g., size, color, and graphic designs, for
this “alternative” to be constitutional. “Alternative means of communication need not be ideal,
however; they need only be available.” Bazzetta, 539 U.S. at 135.
C. Accommodating Plaintiff’s asserted right would be detrimental to prison security
The postcard policy gives the jail security staff more time to deal with prison security
assignments because they can spend less time screening envelopes for contraband. Plaintiff, echoing
his earlier argument, suggests that the staff is still opening, inspecting, and monitoring other sources
of mail exempt from the postcard policy for contraband, so there would be no impact on the staff if
they were forced to accommodate Plaintiff’s request to be able to send sealed envelopes into the jail.
The Court rejects Plaintiff’s premise because, again, increasing the opportunity for contraband to be
introduced into the Sheriff’s Office’s facilities is not in the best interests of the security staff, other

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Plaintiff’s Complaint alleges that visitation is only done by video. (DE 1, Attach. 2: Complaint ¶ 12). Taking
Plaintiff’s allegation as true, video visitation still provides an alternative means of communication.

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inmates, or the allocation of prison resources. Rather, accommodating Plaintiff’s demands “would
cause a significant reallocation of the prison system’s financial resources and would impair the
ability of corrections officers to protect all who are inside a prison’s walls. When such consequences
are present, [the Court is] particularly deferential to prison administrators’ regulatory judgments.”
Bazzetta, 539 U.S. at 135 (citations and internal quotations omitted).
D. The Sheriff’s Office’s postcard policy is not an exaggerated response to its concerns
“Turner does not impose a least-restrictive-alternative test, but asks instead whether
[Plaintiff] has pointed to some obvious regulatory alternative that fully accommodates the asserted
right while not imposing more than a de minimis cost to the valid penological goal.” Id. at 136
(citation omitted). To meet his burden, Plaintiff proposes the following alternative to the Sheriff’s
Office’s postcard policy: 1) all correspondence and envelopes must contain the sender’s name and
address, and the inmate’s name and jacket number; 2) all correspondence must be on either plain
white copy paper or lined paper, and no larger than 8 ½ x 11 inches; 3) all correspondence is limited
to four sheets of paper, including paper containing photocopied photographs, drawings, or pictures;
4) no greeting cards allowed; 5) photographs must be photocopied and are limited to three; 6) all
envelopes are recycled; 7) all photographs, drawings, and pictures will adhere to court rulings, laws,
and valid jail restrictions; and 8) any color of ink may be used. (DE 26 at 22).
Plaintiff has presented no evidence that this proposal would accommodate his asserted right
at a de minimis cost to the Sheriff’s Office. Rather, under Plaintiff’s proposal, jail security staff
would still have to open, inspect, and monitor sealed envelopes—the same situation that the postcard
policy was meant to address. Thus, if Plaintiff’s proposal is implemented, the Sheriff’s Office will

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continue to face the same problems the post-card policy was designed to eliminate. Hence,
Plaintiff’s proposal is not an obvious and feasible alternative to the Sheriff’s Office’s postcard
policy.
IV. Conclusion
The Sheriff’s Office’s postcard policy does not impede Plaintiff’s First Amendment rights
because it is content neutral, it logically advances the goals of institutional security and safety, and
it is not an exaggerated response to those objectives. Plaintiff is free to send as many postcards as
he wishes, to as many inmates as he chooses.8 The Sheriff’s Office has reasonably concluded, based
on unrebutted record evidence, that restricting the manner in which Plaintiff may deliver those
communications makes its facilities safer and more secure. The Court must accord “substantial
deference to the professional judgment of prison administrators, who bear a significant responsibility
for defining the legitimate goals of a corrections system and for determining the most appropriate
means to accomplish them.” Bazzetta, 539 U.S. at 132. Because the Sheriff’s Office has chosen a
constitutionally permissible restriction to achieve its goal of reducing the smuggling of contraband
into its facilities, it is hereby ORDERED AND ADJUDGED that Defendant’s Motion for Summary
Judgment (and Memorandum of Law) (DE 25) is GRANTED. Plaintiff’s Objection and Motion to
Strike the Evidence Contained in and Referred to in Defendant’s Motion for Summary Judgment,

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To the extent Plaintiff argues that the postcard policy would force him to “spend an exorbitant amount of
money on postage to convey any amount for a substantive communication,” (DE 26 at 5), the Supreme Court has held
that “where ‘other avenues’ remain available for the receipt of materials by inmates, the loss of ‘cost advantages does
not fundamentally implicate free speech values.’” Bell v. Wolfish, 441 U.S. 520, 552 (1979) (quoting Jones v. N.C.
Prisoners’ Labor Union, Inc., 433 U.S. 119, 130–31 (1977) (emphasis in original)). But see Jones, 433 U.S. at 145 n.7
(M arshall, J., dissenting) (“Contrary to the Court’s assertion, free speech values most definitely are implicated by a
regulation whose purpose and effect is to make the exercise of First Amendment rights costly.”) (citations omitted). As
discussed above, “other avenues” remain available here.

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with Prejudice (DE 27) is DENIED. The Court shall separately issue judgment for Defendant. This
case is CLOSED.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 11th day of February, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge

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