In this prison conditions case brought in 2002 in the U.S. District Court for the District of Colorado, a federal prisoner in the U.S. Bureau of Prison's (BOP) Florence, Colorado Administrative Maximum (ADX) Detention Unit, claimed violation of First Amendment rights in his pro se federal tort claim against BOP officials. The defendants administered 28 C.F.R. 540.20, a BOP prison regulation restricting inmates from publishing articles under their bylines. The plaintiff sought declaratory and injunctive relief, contending he had been disciplined by BOP personnel after his essays, naming him as author, were printed by a university student publication.
While the case was pending, the defendants revised their interpretation of the regulation in published "Institutional Supplements," and prohibited the BOP from punishing the plaintiff for his past publishing under a byline. They also expunged the related past disciplinary actions from plaintiff's record.
On May 1, 2006, in view of the defendants' efforts, District Judge Marcia S. Krieger issued an unpublished order (amending it on May 23, 2006, for clarity) dismissing all but one of the plaintiff's claims as moot and prohibiting the BOP from taking adverse action against the plaintiff based upon the now-expunged disciplinary reports. The court retained the claim that the C.F.R. regulation at issue was a facially unconstitutional violation of the First Amendment. Counsel from the Student Law Office of the University of Denver Law School entered appearances on plaintiff's behalf prior to entry of the amended order.
On the eve of trial, the BOP's General Counsel circulated a memorandum to BOP components. It interpreted the challenged regulation and provided specific guidance to prison officials on when to seek discipline for a violation of the regulation. In a January 18, 2007, unpublished order, Judge Krieger rejected defense contentions that the new guidance mooted the case. She set a new trial date.
On May 2, 2007, Judge Krieger, citing security and resource concerns in light of the plaintiff's violent record, denied plaintiff's motion to attend the trial in person rather than monitor it via video from his ADX facility. Also denied was plaintiff's effort to have certain prisoner-witnesses testify at the trial. Jordan v. Pugh, 484 F.Supp.2d 1185 (D.Colo. 2007).
After disposing of other pretrial motions, a bench trial occurred. It resulted in Judge Krieger's August 9, 2007, judgment for the plaintiff. Declaring that the "Byline Regulation" was overbroad and unconstitutional as to the plaintiff, other inmates and the press, the court enjoined the BOP from enforcing the regulation. Jordan v. Pugh, 504 F. Supp.2d 1109 (D. Colo. 2007).
The docket reflects that the BOP did not appeal, but moved to amend the judgement to restrict its application to the individual prisoner only. On October 4, 2007, the court denied this motion in an unpublished order, effectively striking down 28 CFR 540.20 as unconstitutional wherever the BOP enforced it. The parties also contested attorney's fees and costs, but on 12/19/2007 they settled for $90,000. The court approved this settlement the next day in an unpublished order, which is the last entry on the docket.
On April 23, 2010, in order to comply with the District Court's order, the Bureau of Prisons published an interim rule revising 28 CFR 540.20(b). See 75 Fed. Reg. 21163, available in the Civil Rights Clearinghouse database or at http://edocket.access.gpo.gov/2010/pdf/2010-9373.pdfEric Weiler - 05/11/2010