Prison Legal News v. Bezotte et al

Filing 297

ORDER Denying Plaintiff's Motion for Civil Contempt and to Enforce Preliminary Injunction 256 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HUMAN RIGHTS DEFENSE CENTER,
d/b/a Prison Legal News,
Plaintiff,
Case No. 11-CV-13460
Honorable Denise Page Hood

v.
LIVINGSTON COUNTY SHERIFF BOB
BEZOTTE, individually and officially,
LIEUTENANT THOMAS CREMONTE,
individually and officially, and
LIVINGSTON COUNTY,
Defendants.

/
ORDER DENYING PLAINTIFF’S
MOTION FOR CIVIL CONTEMPT AND TO
ENFORCE PRELIMINARY INJUNCTION [Dkt. No. 256]
On July 22, 2016, Plaintiff filed its Motion for Civil Contempt and to Enforce
Preliminary Injunction. [Docket No. 256] The matter is fully briefed. For the reasons
that follow, Plaintiff’s Motion is denied.
I.

BACKGROUND
A short summary of the claims of Plaintiff can be found in other court Orders,

specifically the Court’s Orders dated March 29, 2013. [Docket Nos. 63, 64] On March
31, 2016, the Court ordered that:
[E]ffective immediately, Defendants must, in every instance that

Defendants reject (i.e., do not deliver) mail sent by Plaintiff to a
designated inmate at the Livingston County Jail (at least with respect to
the initial copy of any publication): (a) notify Plaintiff of such rejection;
(b) notify the designated inmate recipient of such rejection; and (c)
notify Plaintiff and the designated inmate recipient of the right to—and
afford Plaintiff and the designated inmate the opportunity to—appeal any
such rejection to an impartial third party.
Dkt. No. 239, PgID 6328.
Plaintiff states that it has sent copies of its monthly journal (Prison Legal
News), its book (Prisoners’ Guerilla Handbook: A Guide to Correspondence
Programs in the United States and Canada (“Prisoners’ Handbook”)), and enveloped
mail (informational packets, court rulings, and Prison Legal News sample issues)
individually addressed to prisoners at the jail. Dkt. No. 257, at ¶ 4. Plaintiff contends
that it did not receive any returned mail or due process notice for the monthly issues
of Prison Legal News it sent to prisoners at the Jail in April, May, and June 2016.
Plaintiff further contends that: (a) it did not receive due process notices for the
enveloped mail or the Prisoners’ Handbook, and (b) all enveloped mail and copies of
the Prisoners’ Handbook were returned to Plaintiff, unopened, with the names of the
prisoner-addressee blacked-out with marker. The packages that contained only the
Prisoners’ Handbook had labels on the outside of the packaging directing Plaintiff to
pay the cost of the return postage. The copies of another book sent by Plaintiff to
prisoners—titled The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas
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Citebook”)—were returned unopened, with the name of each prisoner-addressee
blacked-out with marker, and there was an ink stamp on the outside of the packaging
directing Plaintiff to the Livingston County Sheriff’s website for the procedure for
appealing the rejection of the Habeas Citebook.
Defendants assert that they revisited their mail policies immediately after
receiving the Court’s March 31, 2016 Order in order to comply with that Order. They
assert that staffing and budgetary restraints affected their ability to formulate a policy,
but one was approved on May 17, 2016 and implemented fully in early June 2016.
Defendants contend that all rejected mail is stamped and returned to sender—the
stamp indicates the reason for rejection and directs the sender to the Livingston
County Jail’s website to view the appeal policy. Defendants state that inmates also
receive notice of the rejection, the reason for the rejection, and are given the
opportunity to appeal the rejection. Defendants state that details of how to file an
appeal are posted in every inmate housing unit and in the inmate rulebook. An appeal
is required to: (a) be titled “Mail Appeal,” and (b) specify the reason the inmate feels
the rejection of mail was incorrect, including “a description of the nature of the
rejected mail.” Appeals are reviewed by one of the jail lieutenants and that person
makes the final decision.
Plaintiff requests that the Court: (1) enter an order of civil contempt against
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Defendants; (2) require Defendants to pay Plaintiff’s attorneys’ fees; (3) impose
monetary sanctions against Defendant Bob Bezotte in his individual capacity; (4)
grant Plaintiff a permissive jury instruction that Defendants’ conduct was willful and
wanton; and (5) require Defendants to revise their due process policy as outlined in
Plaintiff’s motion.
II.

ANALYSIS

A.

Standard for Contempt
The power to hold a party in contempt is within the discretion of the district

court. Peppers v. Barry, 873 F.2d 967, 968 (6th Cir. 1989). Civil contempt is
appropriate when a party is not in compliance with a court’s order, and though it “may
serve incidentally to vindicate the court’s authority, its primary purposes are to compel
obedience to a court order and compensate for injuries caused by noncompliance.”
TWM Mfg. Co. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir. 1983); Banner v. City
of Flint, 99 F. App’x 29, 40 (6th Cir. 2004) (same). “A district court may sanction
parties who fail to comply with its orders in a variety of ways, including dismissal of
the lawsuit.” Universal Health Grp. v. Allstate Ins. Co., 703 F.3d 953, 956 (6th Cir.
2013) (quoting Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995)).
A party that moves to hold another party in contempt must prove by clear and
convincing evidence that the non-movant is in violation of a “definite and specific
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order of the court.” Electric Workers Pension Trust Fund of Local Union #58, IBEW
v. Gary’s Elec. Serv. Co., 340 F.3d 373, 378 (6th Cir. 2003).
B.

Analysis
Plaintiff argues that the mail it sent to inmates at the Livingston County Jail in

April, May, and June 2016 was censored without due process notice, and its specific
complaints about how Defendants violated the Court’s March 31, 2016 Order are
outlined below. Defendants argue that Plaintiff and inmates were (and are) notified
when mail is rejected, have been informed of the appeal process, and that any appeal
submitted is reviewed by a jail lieutenant and the party filing the appeal is notified of
the jail lieutenant’s decision. Defendants assert that such a policy satisfies the three
requirements of the Court’s March 31, 2016 Order because it: (1) notifies Plaintiff of
the rejection; (2) notifies the inmate of the rejection; and (3) gives both Plaintiff and
the inmate an opportunity to appeal to an impartial third party.
First, Plaintiff asserts that it has never been provided due process notice as it
relates to the Prison Legal News, nor were such journals returned to Plaintiff in an
attempt to escape judicial review. Plaintiff contends that Defendants’ action was
intentional and without regard to the Court’s order. Relying on an affidavit of
Lieutenant Jeffery A. LeVeque, the Livingston County Jail Administrator, Defendant
responds that it returned to Plaintiff all copies of the Prison Legal News that
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Livingston County Jail received “in April, May, or June” (no year specified). Dkt. No.
266, Ex. 1 at ¶ 20. Defendant also argues, correctly, that Plaintiff “is fully aware that
its journal will not be delivered under the Jail’s current mail policy because it violates
the postcard and publications policy.”
As has been discussed throughout this litigation, the Livingston County Jail has
a policy that prohibits any books, magazines, or other mail, except for “standard white
post cards” and “bona-fide legal mail.” The Fifth Circuit has held that Plaintiff is not
entitled to notice of subsequent denials of identical publications when the denial
amounts to routine enforcement of a rule with general applicability. Prison Legal
News v. Livingston, 683 F.3d 201, 223 (5th Cir. 2012) (the Court cited this case in its
March 31, 2016 Order).
Plaintiff knew of Livingston County Jail’s postcard-only policy long before the
March 31, 2016 Order, and nothing in the March 31, 2016 Order (or any other order)
suggests that Defendants had to accept copies of the Prison Legal News. For that
reason, it is unclear why Plaintiff would continue to try to send copies of the Prison
Legal News (and the Prisoners’ Handbook and the Habeas Citebook) to Livingston
County Jail inmates — or have any reason to believe that such publication(s) would
be delivered to those inmates. On the other hand, it appears that Defendants
technically, and admittedly, were in violation of the March 31, 2016 Order because
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they did not comply with the requirements of the Order “at least with respect to the
initial copy of [that/those] publication[(s)].”
Plaintiff asserts that Defendants have been inconsistent regarding the copies of
Prison Legal News sent to inmates at the Livingston County Jail in April-June 2016.
As noted above, Defendants have responded to the instant motion by claiming that
they returned those copies, even though Plaintiff has no record of receiving them.
Plaintiff asserts that when it inquired, prior to filing the instant motion, about those
copies of Prison Legal News, Defendants represented that no issues of Prison Legal
News had been received at the Livingston County Jail for more than a year. [Dkt. No.
269, PgID 8072 and at Ex. 1] Plaintiff rightfully argues that both of Defendants’
responses cannot be true.
Second, Plaintiff contends that all enveloped mail and copies of the Prisoners’
Handbook were returned to Plaintiff—unopened, with the recipient’s name blackedout, and without notice of the reasons for censorship or the appeal process. The
returned books also included a label directing Plaintiff to pay postage for the cost of
returning the books.

Plaintiff argues that this process did not allow for an

individualized determination as to whether the correspondence would be a threat to
legitimate security interests.
Defendant responds that the documents that Plaintiff’s counsel attached to a
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July 1, 2016 letter to Defendants’ counsel show that the returned mail had a return to
sender stamp, with a reason for rejection (either “NOT LEGAL MAIL” or
“VIOLATES JAIL POLICY” or both), and notifying the sender of the appeal process
on

the

outside

of

the

package

WWW.LIVGOV.COM/SHERIFF/JAIL”).

(“SEE

APPEAL

PROCESS

AT

Plaintiff argues that the documents

Defendants identify were only a few of the many enveloped mail and Prisoners’
Handbooks sent to inmates at the Livingston County Jail. [See Dkt. No. 257, Ex. 2 and
3] Plaintiff’s argument is inconsistent with the photocopies of what it states are
enveloped mail that was returned—each of which included a label that says “NOT
DELIVERABLE

AS

ADDRESSED”

or

“RETURN

TO

SENDER”

or

“UNCLAIMED.” [Dkt. No. 257, Ex. 2]
Third, Plaintiff contends that the eight copies of the Habeas Citebook they sent
to Livingston County Jail inmates were returned—though, unlike the enveloped mail
and the Prisoners’ Handbook, they had a stamp giving the reason for rejection and
directing Plaintiff to the Livingston County Sheriff’s website for the appeal process.
Defendants argue that Plaintiff’s acknowledgment that the stamp was on the returned
Habeas Citebooks shows that Defendants were in compliance with the Court’s March
31, 2016 Order. Plaintiff again argues that there were more copies of the Habeas
Citebook sent to inmates than Defendants identify.
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Fourth, Plaintiff states that the appeal process is meaningless and illusory
because none of the packages were opened, so the contents were never evaluated prior
to censoring the items. Plaintiff does not contend that it or any inmate appealed the
rejection of the mail at issue, so it is not clear how Defendants violated the March 31,
2016 Order with respect to that step. Defendants contend that the jail lieutenant’s
review is impartial, as the Fifth Circuit held in Prison Legal News v. Livingston, 683
F.3d 201, 223 (5th Cir. 2012) (again, the Court cited this case in its March 31, 2016
Order).
Defendants argue that they were in full compliance by the end of May 2016,
even with the staffing and budgetary constraints, as well as undertaking the steps to
develop and implement the new policy that satisfied the 14th Amendment, including
having to update its website, acquire necessary supplies, and train its employees.
Citing Peppers v. Barry, 873 F.2d 967, 968 (6th Cir. 1989) (petition for contempt
denied when Ohio Department of Human Services did not comply with an injunction
within nine years because it had to purchase new office equipment, develop a new
computer system, and train employees).
Plaintiff counters that the steps required by the Court in the March 31, 2016
Order were not unusual or burdensome. Plaintiff contends that such steps are used by
“thousands of correctional facilities across the country.”
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Plaintiff argues that

Defendants had the burden to show that they were unable to immediately comply with
the Court’s Order and have not done so. Citing Gary’s Elec. Serv. Co., 340 F.3d at
379 (citation omitted); Rolex Watch U.S.A., Inc. v. Crowley, 74 F.3d 716, 720 (6th Cir.
1996) (defendant “must show categorically and in detail why [it] is unable to comply
with the court’s order”). Plaintiff suggests that Defendants’ burden is significant
because the issue of due process has been argued since the inception of the case (five
years ago).
The Court concludes that Plaintiff’s Motion for Civil Contempt and to Enforce
Preliminary Injunction [Dkt. No. 256] is unwarranted. Although it appears that
Defendants may not have complied immediately with all terms of the Court’s Order
because they did not take all the steps with respect to all the items sent by Plaintiff,
there are three things that mitigate, if not obviate, that non-compliance.
A.

All of the items that Plaintiff contends Defendants did not process

correctly are items that Plaintiff knew were prohibited at the Livingston County Jail.
[Dkt. No. 266, Ex. 2 (“Items not allowed: . . . envelopes, books, magazines, . . .”)]
Plaintiff does not even argue that any of items constituted “bona-fide legal mail” or
“standard white postcards,” the only type of mail that is allowed at the Livingston
County Jail. See id.
B.

Defendants have argued (and supplied an affidavit) that unacceptable
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mail was returned to Plaintiff, the intended inmates were notified, and both Plaintiff
and those inmates were provided with notice of the method for appealing the rejection
of such mail. If Defendants did so, they were in compliance with the Court’s March
31, 2016 Order. Plaintiff’s July 1, 2016 letter — and its reply brief — reflect that
Defendants did comply with the Order with respect to at least three items of the
Habeas Citebook and three items of the enveloped mail. [Dkt. No. 266, Ex. 3; Dkt.
No. 269, PgID 8072 at n. 3]
C.

There is evidence that Defendants complied with the March 31, 2016

Order with respect to at least the Habeas Citebook and, perhaps, the enveloped mail
because compliance only required that Defendants properly reject and give notice
regarding the appeal process for the first copy of anything (although rejecting multiple
copies does not violate the March 31, 2016 Order). It is not clear whether the same
materials were in each envelope—and Defendants did not open the envelopes to know
if it was the same materials in each. But, because the envelopes were not designated
“legal mail,” it is not clear that Defendants had any obligation to open it. As to the
Prisoners’ Handbook, Plaintiff acknowledges that those items were returned to
Plaintiff unopened, and they include the label “Return for Postage.” The “Return for
Postage” label may mean something different than Plaintiff’s claim that Defendants
were seeking to charge Plaintiff for the cost of returning the book. It is not even clear
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that the label was put on by Defendants, as it could have been put on by the United
States Postal Service.
For the reasons set forth above, the Court denies Plaintiff’s motion for civil
contempt and the imposition of sanctions.
III.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Civil Contempt and to Enforce

Preliminary Injunction [Docket No. 256] is DENIED.
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: March 31, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 31, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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