Simpson v. Cape Girardeau, Missouri, County of

Filing 75

MEMORANDUM: Having found the issues in favor of the defendant, the Court will enter judgment in favor of defendant and against plaintiff. A separate judgment will accompany this Memorandum. Signed by District Judge Carol E. Jackson on 8/16/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
CHERYL SIMPSON,
Plaintiff,
vs.
COUNTY OF CAPE GIRARDEAU,
MISSOURI,
Defendant.

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Case No. 1:14-CV-13 (CEJ)

MEMORANDUM
On January 1, 2014, the Cape Girardeau County jail imposed a “postcard
only” policy for non-privileged correspondence to its inmates. Plaintiff Cheryl
Simpson brings this action pursuant to 42 U.S.C. § 1983, claiming that the policy
impermissibly restricts the ability of outside correspondents to communicate with
inmates, in violation of the First and Fourteenth Amendment. Plaintiff seeks
declaratory and injunctive relief.
The parties appeared for a bench trial on November 6, 2015. After
considering the evidence presented and the parties’ stipulation of facts, the Court
makes findings of fact and conclusions of law as required by Rule 52(a)(1) of the
Federal Rules of Civil Procedure.
I.

Findings of Fact

Plaintiff’s son, Trey Simpson, was an inmate at the Cape Girardeau County
jail from August 2013 to February 2014. Joint Stip. at ¶2. [Doc. #46]. The jail is a
transitional or temporary facility that houses approximately 220 male and female
inmates in ten pods, with an average count of 207 inmates. Joint Stip. at ¶29;
Transcript at 85. The typical length of stay is less than six months. Joint Stip. at

¶32. The jail is staffed in two shifts, with four corrections officers on each shift. One
officer remains stationed at a computer monitor and operates the facility’s doors.
The remaining officers are responsible for booking prisoners into the jail, releasing
prisoners, making security checks of the pods and perimeter, responding to
disturbances, handling medical and commissary requests, transporting inmates to
medical visits and court, serving meals, processing civilian fingerprints, and
handling incoming mail.1 Transcript at 84-85. Although outgoing mail should be
scanned, jail personnel rarely have enough time to do so. Transcript at 89.
A.

The Jail’s Mail Policy

Before the jail implemented the postcard-only policy on January 1, 2014,
there were no limits on the number or length of individual letters an inmate could
receive. Between 50 and 100 letters were received each day. Transcript at 110; but
see Transcript at 121 (Mulcahy estimated the jail received between 50 and 150
pieces of mail every day). All nonprivileged2 mail was opened by corrections
officers, who scanned the contents for information about escape plans or threats to
other inmates. Transcript at 83-84. The officers also searched for contraband —
such as tobacco, drugs,3 or lewd photographs — and other items that pose a
security risk — such as paperclips, staples and rubber bands. See Transcript at 81

1

In its proposed findings of facts, defendant states that the corrections officers also process
grievances, “deal with the public,” and “do court supervision.” [Doc. #73 at ¶11]. While it is
logical that jail personnel would perform these duties, there is no evidence in the record
from which the Court can make a finding that these duties are in fact performed.
2

The postcard-only policy does not apply to mail from religious institutions, attorneys, and
courts. Transcript at 87-88. That mail is opened in front of inmates and items such as
staples and paperclips are removed. Transcript at 112.
3

Defendant has not identified any documented instances of drugs or tobacco being found in
nonprivileged mail, although these items have been found in envelopes purporting to be
legal (i.e., privileged) mail. Transcript at 81, 101, 132, 137.

2

(staples can be used to make tattoos), 115-17 (rubber bands can be used to tie
sheets together or make zip guns; paperclips can be used to make handcuff keys).
In addition, officers searched for newspaper and magazine articles and court
documents that referred to other inmates. Transcript at 80, 82, 133 (outside
correspondents sent criminal history information of other inmates). Where possible,
articles and court documents were returned to the sender. Transcript at 133.
Finally, any personal property items included in the mail were labeled and placed in
storage to be given to the inmate upon release. Transcript at 94, 121. Captain
James Mulcahy testified that it could take one or two officers 35 to 45 minutes of
uninterrupted time to process the “normal mail load,” and up to two hours to do so
“on a bad day.” Transcript at 142. He acknowledged, however, that this was an
educated guess because the jail did not keep records of how long it took to process
the mail. Transcript at 140.
In October 2013, Lieutenant Todd Stevens proposed changing the policy
regarding incoming mail to limit nonprivileged correspondence to postcards.
Plaintiff’s Ex. 7. He identified the following benefits of such a policy: (1) “a higher
level of safety and security” at the jail; (2) “possibly less mail coming into the
facility;” (3) “less contraband introduced” into the jail; (4) “less manpower spent
opening and searching mail;” and (5) reduced liability for “missing property that is
mailed into the facility and cannot be given to the inmate.” He identified possible
disadvantages as well: (1) complaints from inmates and their families; (2) “[m]ost
postcards are thick and could be used for picking locks and making other forms of
contraband;” and (3) legal challenges to the policy. Id. He noted that the policy had
been adopted by “several” Missouri sheriffs’ offices. Id.

3

The policy went into effect on January 1, 2014. Its stated purpose is to
“expand the safety and security” for “inmates and Staff.” All nonprivileged
correspondence entering the jail must be written on “standard white postcards” no
larger than 5” by 7” and include a legible return address. Plaintiff’s Ex. 1, Policy at
§ I. “Unacceptable” postcards — i.e., index cards, photographs, and postcards that
are defaced or altered; depict nudity, weapons, alcohol or gang references; or have
labels, stickers, stains, watermarks, or “biohazards, including lipsticks or perfumes”
— are returned to the sender. All stamps are removed and discarded before the
cards are given to the inmate. While an inmate may receive an unlimited number of
postcards, he may keep only ten postcards in his cell. Id. According to the policy,
incoming postcards are monitored “to ascertain any attempt at escape, security
violations, or conspiracy to introduce contraband.” Id. at § III(a)(4). In the event
that such information is found, the inmate is “given written notice of the reasons
the correspondence is being denied.” Id. at § III(a)(5). The postcard-only policy
does not apply to outgoing mail. Transcript at 89.
The policy sets forth an exception for legal and religious mail. Policy at
III(a)(1)(b). Legal mail includes “anything from attorneys [or] courts,” while
privileged religious mail must come from a religious institution. Transcript at 87-88.
All privileged mail is opened by jail staff in the presence of the receiving inmate.
Transcript at 53, 77. In addition to the official exceptions for legal and religious
mail, the evidence establishes that the jail has unwritten exceptions. Upon written
request, Stevens and Mulcahy can authorize inmates to receive letters from family
members who cannot obtain postcards because they are incarcerated. Transcript at
87. In addition, inmates representing themselves in civil or criminal matters may

4

request permission to receive legal materials from family members.4 Transcript at
102-03, 128-29. Mulcahy acknowledged that “not everyone know[s] that they can”
receive legal materials through the mail from family. Transcript at 122. There was
no testimony on whether the jail intends to update the written policy to include
these exceptions.
Since the postcard-only policy was implemented, the jail receives about 50
postcards a day. Transcript at 111. For each postcard, corrections officers remove
the stamp, scan the contents,5 log its receipt, and deliver it to the receiving inmate.
Transcript at 94. It takes an average of 30 to 45 minutes to complete distribution of
the postcards. Transcript at 134.
On March 15, 2014, the jail implemented a policy allowing inmates to receive
personal emails and photographs, for a cost of $.35 for each email and $.50 for
each photograph. Transcript at 90. Emails are limited to 500 words or fewer;
photographs depicting nudity, weapons, alcohol or gang references are not allowed.
Corrections officers scan incoming emails for prohibited content and print them. The
printed emails are given to the inmates if they have enough money in a
commissary account to pay for them; otherwise, the emails are held in a file until
there are funds to pay for them. Transcript 108-10. The jail receives about 100
emails a day for inmates.
There was testimony at trial that the jail planned to make videoconferencing
available to inmates in late 2015. Transcript at 91. In contrast to the visitation
4

The public defender’s office also provides legal materials to pro se criminal defendants.
Transcript at 128-29.
5
The parties jointly stipulated that the postcards are not “read.” Joint Stip. at ¶28. Based
on this stipulation, plaintiff suggests that the policy actually increases the risk that
information about other inmates or escape plans will go undetected. Doc. #74 at 23. The
testimony establishes that both before and after the implementation of the postcard-only
policy jail personnel “scanned” the contents of written communications for such information.

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policy, videoconferences will not be restricted to immediate family members.
Videoconferences can be placed for free from kiosks in the jail’s lobby or from home
computers or mobile devices for a charge of $5.00 for 15 minutes. Transcript at
118-20.
B.

Plaintiff’s Communications with Her Son

Trey Simpson was incarcerated from August 2013 to February 2014. Before
the postcard-only policy was implemented, plaintiff sent him three or four lengthy
letters every week in which she addressed personal, legal, and financial matters.
She also sent photographs and pictures drawn by her son’s young nephew. Several
other relatives and friends also wrote letters to Mr. Simpson. Mr. Simpson testified
that this correspondence was important to him, and helped him to “stay focused on
what really matters, which was bettering [him]self and bringing [him]self to be
completely ready and at [his] best” when he was released. Transcript at 36.
After the policy went into effect, plaintiff wrote about 60 postcards and her
husband wrote at least 50. Transcript at 15, 61. Although the policy permits
“standard white postcards” up to 5” by 7” in size, plaintiff was unable to locate any
postal cards larger than 3.5” by 5.” Transcript at 24. She testified that she could
only fit about a single paragraph on each card and so she had to write multiple
postcards to convey what she previously was able to write in a single letter.
Transcript at 15. She numbered the postcards so her son would be able to read
them in order. Id. However, the postcards did not always arrive at the same time
and, if he already had ten cards in his possession, he was required to turn those in
before he could receive the most recent cards. As a result, the communications “got
very confusing.” Transcript at 37-38. Plaintiff testified that she limited the content

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of what she wrote on the postcards because she was aware that they could be read
by anyone who handled them from the time she put them in the mail until they
were placed in her son’s hands, including postal employees. Transcript at 16.
Plaintiff testified that the postcard-only policy interfered with her ability to maintain
the strong connection she felt was necessary for her son to “get back into society”
when he was released. Transcript at 16-17.
Immediate family members are allowed to have 15-minute visits with
inmates on Saturdays. Transcript at 19.

Plaintiff visited her son every Saturday;

her husband, who worked on Saturdays, visited less often. Transcript at 20, 44, 63.
Visits were conducted in a small cubicle over telephone handsets on either side of a
glass wall, with up to seven inmates receiving visitors at a time. Transcript at 21.
It was not possible to have private communication with an inmate under these
conditions. Plaintiff testified that the handsets frequently malfunctioned. When that
occurred, she had to wait for the next 15-minute period and try a different handset.
Transcript at 20-22. Coordinating weekly visits was complicated by the fact that, on
six occasions, Trey Simpson was moved to a new housing pod with a different
designated visiting hour. After each move, he placed a collect call to his parents to
let them know his new visiting hour. Transcript 42-45. Each call cost $9.99 for 10
minutes. Transcript at 17-18. Because of the expense, he only called his parents
once a week. Transcript at 29.
II.
A.

Conclusions of Law

Prison Regulation of Inmate Correspondence

Both the addressee and the sender of direct personal correspondence are
protected by the First Amendment against unjustified governmental interference

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with communication. Procunier v. Martinez, 416 U.S. 396, 408–09 (1974)
(addressing challenge to prison censorship regulations) (overruled in part by
Thornburgh v. Abbott, 490 U.S. 401 (1989)). However, “the Constitution
sometimes permits greater restriction of such rights in a prison than it would allow
elsewhere.” Beard v. Banks, 548 U.S. 521, 528 (2006) (upholding prison ban on
newspapers, magazines, and photographs). To ensure that appropriate deference is
afforded to prison officials, courts consider prison regulations alleged to infringe
constitutional rights under a “reasonableness” test that is less restrictive than that
ordinarily applied to alleged infringements of fundamental constitutional rights.
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Thus, prison regulations
that restrict freedom of speech are permissible if they are “reasonably related to
legitimate penological interests and are not an exaggerated response to such
objectives.” Turner v. Safley, 482 U.S. 78, 87 (1987).
To determine if a jail’s content-neutral regulation is “reasonably related to
legitimate penological interests,” the Court examines four factors outlined by the
Supreme Court in Turner: (1) whether the regulation has a “valid, rational
connection” to a legitimate governmental interest; (2) whether alternative means
are open to inmates to exercise the asserted right; (3) what impact an
accommodation of the right would have on guards and inmates and prison
resources; and (4) whether there are “ready alternatives” to the regulation.
Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (quoting Turner, 482 U.S. at 8991). In conducting the Turner analysis, courts 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

8

determining the most appropriate means to accomplish them. Id. (citations
omitted). The burden, moreover, is not on state officials to prove the validity of
prison regulations but on the prisoner to disprove it.
Nonetheless,

despite

the

“considerable

Id. (citations omitted).

deference”

afforded

to

prison

administrators, the Turner test “is not toothless.” Prison Legal News v. Chapman,
44 F. Supp. 3d 1289, 1298 (M.D. Ga. 2014) (quoting Thornburgh, 490 U.S. at 40708. Prison authorities must “show more than a formalistic logical connection
between a regulation and a penological objective”; they must also “show[ ] a
reasonable relation” in light of the “importance of the rights . . . at issue.” Id. at
1298 (quoting Beard, 548 U.S. at 533, 535). A prison regulation “cannot be
sustained when the logical connection between the regulation and the asserted goal
is so remote as to render the policy arbitrary and irrational.” Id. (quoting Turner,
482 U.S. at 89-90).
B.

Other Postcard-Only Policies

Although the Eighth Circuit has not yet addressed the constitutionality of
postcard-only policies, several district courts in other circuits have done so and
have reached differing conclusions. Compare Prison Legal News v. Columbia Cty.,
942 F. Supp. 2d 1068, 1086 (D. Or. 2013) (finding that a postcard-only policy was
not rationally related to legitimate penological interests where “there [was] no
evidence that a postcard-only policy [was] more secure than opening envelopes
and inspecting their contents” and where “the time-savings afforded to the Jail by
the postcard-only mail policy [was] de minimis”), and Cox v. Denning, No. 12–
2571–DJW, 2014 WL 4843951, at *17-19 (D. Kan. Sept. 29, 2014) (holding same
where there was no explanation how postcard-only policy “more effective at

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preventing the introduction of contraband than the former policy of opening
envelopes and inspecting the contents” and no evidence regarding the amount of
time saved by the postcard-only policy), with Barnes v. Wilson, 110 F. Supp. 3d
624, 632 (D. Md. 2015) (upholding postcard-only policy that did not apply to legal
communications or prevent all avenues of communication, and inmate’s stay in
facility was “transitional and temporary”); Chapman, 44 F. Supp. 3d at 1299
(holding after bench trial that postcard-only policy was constitutional); Covell v.
Arpaio, 662 F. Supp. 2d 1146, 1153-55 (D. Ariz. 2009) (finding that meteredpostcard-only policy rationally related to legitimate interest in reducing contraband
where evidence showed that previous increase in attempted smuggling of
contraband through the back of postage stamps), and Althouse v. Palm Beach Cty.
Sheriff’s Office, No. 12–80135–CIV, 2013 WL 536072, at *5-6 (S.D. Fla. Feb. 12,
2013) (finding that postcard-only policy rationally connected to security where
evidence showed that envelopes and greeting cards frequently contained hidden
contraband).
C.

The Cape Girardeau Jail Policy

The objectives of the defendant’s postcard-only policy are to increase safety
and security within the jail by limiting the introduction of contraband and reducing
the amount of time jail staff spend dealing with incoming mail.6 Increasing security,
reducing contraband, and decreasing the time spent screening mail are valid
governmental interests. See Pell v. Procunier, 417 U.S. 817, 823 (2000) (“[C]entral
to all other corrections goals is the institutional consideration of internal security
within the corrections facilities themselves.”); Goff v. Graves, 362 F.3d 543, 549
6

The Court declines to address the additional objective of relieving the jail of liability for
missing personal property as unnecessary to the analysis.

10

(8th Cir. 2004) (keeping contraband out of secure unit is a valid penological
interest); Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998) (same); McKenzie
v. Fabian, No. CIV. 07-4441 PAM/JSM, 2009 WL 2982641, at *10 (D. Minn. Sept.
11, 2009) (policy imposing weight limit on nonlegal mail rationally related to
objectives of preventing contraband from entering the prison and preserving “finite
resources of the prison”); Columbia Cty., 942 F. Supp. 2d at 1082 (addressing
postcard-only policy and finding that “security and efficiency are legitimate
penological objectives”) (citations omitted).
Where, as here, policies implicate institutional security, courts “must accord
great deference to the judgment of prison officials.” Goff, 362 F.3d at 549. “The
task of determining whether a policy is reasonably related to legitimate security
interests is peculiarly within the province and professional expertise of corrections
officials.” Beaulieu v. Ludeman, 690 F.3d 1017, 1029 (8th Cir. 2012) (quoting
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1517
(2012)) (internal quotation and citation omitted). As a result, “in the absence of
substantial evidence in the record to indicate that the officials have exaggerated
their response to these considerations courts should ordinarily defer to their expert
judgment in such matters.” Id. (citations omitted).
Addressing the first Turner factor, plaintiff argues that defendant cannot
show that the policy has a “rational connection” to the goal of increasing safety and
security because Mulcahy and Stevens gave vague or contradictory testimony
regarding whether the policy resulted in less contraband, decreased the volume of
incoming mail, or brought about time savings. However, case law does not require
defendant to introduce “actual proof that a legitimate interest will be furthered by

11

the challenged policy. The connection between the two need be only objectively
rational.” Herlein v. Higgins, 172 F.3d 1089, 1091 (8th Cir. 1999) (upholding prison
ban on music with explicit lyrics); see also Beard, 548 U.S. at 531 (relying on
prison official’s “views” to find rational connection between periodical ban and
legitimate penological interest). Here, logic dictates that scanning postcards is more
efficient than opening envelopes and scanning multipage letters for information
regarding other inmates or escape plans. See Beard, 548 U.S. at 531-32 (“The
articulated connections between newspapers and magazines, the deprivation of
virtually the last privilege left to an inmate, and a significant incentive to improve
behavior, are logical ones.”); Chapman, 44 F. Supp. 3d at 1299 (noting “common
sense connection” between goal of reducing contraband and limiting the number of
pages of correspondence). In addition, the postcard-only policy minimizes the
possibility

that

paperclips,

rubber

bands,

staples,

newspaper

articles,

and

sentencing documents—all items which defendants established pose a risk to
security and safety—will be introduced into the jail in envelopes. The fact that these
items may still be introduced through privileged mail does not negate the fact that
the policy reduces the volume of mail that must be searched for such items. See
Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1027 (8th Cir. 2004) (rejecting
plaintiff’s argument that English-only correspondence rule was not rationally related
to security interests because escape plans could be made through other means).
The postcard-only policy satisfies the first Turner factor.
With regard to the second Turner factor, if inmates have alternative means to
exercise the asserted right, “courts should be particularly conscious of the ‘measure
of judicial deference owed to corrections officials . . . in gauging the validity of the

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regulation.’” Turner, 482 U.S. at 90 (quoting Pell, 417 U.S. at 827). The
alternatives to multipage letters that were available to plaintiff to engage in
communication with her son included weekly visits and phone calls.7 In addition,
there were no restrictions on Trey Simpson’s ability to mail letters to plaintiff.
Plaintiff’s

testimony

establishes

that

these

alternative

avenues

were

more

expensive and made it difficult to convey private or confidential information.
However, the proffered alternatives “need not be ideal . . .; they need only be
available.” Overton, 539 U.S. at 135. Where “the alternatives are of sufficient
utility” they give “some support to the regulations.”

Id. Taking into account the

additional expense and reduced privacy, the Court concludes that second Turner
factor is neutral.
In considering the third Turner factor, courts should be “particularly
deferential to the informed discretion of corrections officials” when accommodating
an asserted right will have “a significant ripple effect on fellow inmates or on prison
staff.”

Turner 482 U.S. at 90 (internal quotation omitted). Plaintiff argues that

defendant should return to the pre-2014 policy of allowing unlimited incoming
nonprivileged correspondence in sealed envelopes. As discussed above, incoming
letters needed to be searched for prohibited items and information regarding other
inmates. Time spent by the staff accomplishing these tasks reduced the amount of
time spent on other tasks related to security and inmate welfare. See Perkins v.
Demeyo, No. 2:12-CV-01242-JAD, 2014 WL 5782769, at *7 (D. Nev. Nov. 6, 2014)
(finding third Turner factor satisfied based on “increased danger to inmates and
staff caused by both the contraband itself and the staff time required to screen for
7

The jail’s email policy had not been implemented during Trey Simpson’s incarceration and
is not relevant to this case.

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contraband”). Plaintiff argues that implementing the postcard-only policy imposes
its own costs in terms of time and effort that effectively nullify any benefit. In
particular, plaintiff cites the time necessary to return noncompliant postcards and
inform outside correspondents of the restrictions. However, these tasks also needed
to be performed under the pre-2014 policy and thus do not support plaintiff’s
position. Plaintiff also cites the time associated with implementing the limit on the
number of postcards inmates could keep in their cells, but there is no evidence in
the record regarding how burdensome it is to enforce this aspect of the postcardonly policy. The policy satisfies the third Turner factor.
Under the fourth Turner factor, if there is “an alternative that fully
accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not satisfy
the reasonable relationship standard.” Turner 482 U.S. at 91. As already discussed
above, the alternative that plaintiff identifies — a return to the pre-2014 policy —
has a more than de minimis cost in that it will require jail staff to open envelopes
and inspect and scan multipage letters, the very activities which the postcard-only
policy was designed to reduce.

*****

Based on the foregoing, the Court finds that defendant’s postcard-only policy
is reasonably related to legitimate penological interests.

The Court further

concludes that the policy does not violate the plaintiff’s constitutional rights.

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Having found the issues in favor of the defendant, the Court will enter judgment in
favor of defendant and against plaintiff.
A separate judgment will accompany this Memorandum.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 16th day of August, 2016.

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