University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Jordan v. Pugh PC-CO-0013
Docket / Court 02-cv-01239-MSK-PAC ( D. Colo. )
State/Territory Colorado
Case Type(s) Prison Conditions
Case Summary
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 ... read more >
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On May 1, 2006, in view of the defendants' efforts, District Judge Marcia S. Krieger issued an unpublished order (amending it on May 23, 2006, for clarity) dismissing all but one of the plaintiff's claims as moot and prohibiting the BOP from taking adverse action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 In a January 18, 2007, unpublished order, Judge Krieger rejected defense contentions that the new guidance mooted the case.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.pdf

Eric Weiler - 05/11/2010


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action Bivens
Defendant(s) Federal Bureau of Prisons
Plaintiff Description Federal prisoner brought civil rights suit challenging Bureau of Prisons regulations on several grounds including unconstitutional vagueness and overbreadth, for publishing two articles under a byline in a magazine.
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement

Source of Relief Litigation
Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2007 - n/a
Case Closing Year 2007
Case Ongoing No
Additional Resources
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Case Studies Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
By: Margo Schlanger (Washington University)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
1:02-cv-01239-MSK-KLM (D. Colo.) 12/20/2007
PC-CO-0013-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
[Court of Appeals] Opinion [Dismissing Appeal of District Court's Order Granting Summary Judgment to Defendants as to Plaintiff's Facial Vagueness Claim and Defendant's Qualified Immunity Defense] 09/21/2005 (425 F.3d 820)
PC-CO-0013-0014.pdf | WESTLAW| LEXIS | Detail
Document Source: Public.Resource.Org
Order Granting, in Part, the Defendants' Motion to Dismiss on Grounds of Mootness, and Denying the Plaintiff's Motion for Summary Judgment 04/17/2006 (2006 WL 1028775 / 2006 U.S.Dist.LEXIS 30051) (D. Colo.)
PC-CO-0013-0015.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order [Dismissing as Moot Plaintiff's Claims Relating to Past Application of 28 C.F.R. 540.20(b), Preserving First Amendment Claim Only] 05/01/2006 (2006 WL 1155295 / 2006 U.S.Dist.LEXIS 32576) (D. Colo.)
PC-CO-0013-0018.pdf | WESTLAW| LEXIS | Detail
Amended Order [Dismissing as Moot Plaintiff's Claims Relating to Past Application of 28 C.F.R. 540.20(b)] 05/23/2006 (2006 WL 1455579 / 2006 U.S.Dist.LEXIS 36576) (D. Colo.)
PC-CO-0013-0019.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order Denying [Plaintiff's] Motion to Reconsider and [Defendants'] Motion to Dismiss [re May 2006 Orders] 09/06/2006 (2006 WL 2583105 / 2006 U.S.Dist.LEXIS 66732) (D. Colo.)
PC-CO-0013-0020.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order Setting the Matter for Trial [and Addressing Defendants' Argument That Plaintiff's Claim is Moot] 01/18/2007 (2007 WL 162754 / 2007 U.S.Dist.LEXIS 3724) (D. Colo.)
PC-CO-0013-0021.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Order Denying [Plaintiff's] Motions [for Petition of Writ of Habeas Corpus Testificandum and to Present Testiomny of Theodore Kacyznski and Thomas Silverstein] 05/02/2007 (484 F.Supp.2d 1185) (D. Colo.)
PC-CO-0013-0016.pdf | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Order on Motions [re Various Trial Issues, Evidence, Communication With Plaintiff] 05/22/2007 (2007 WL 1552512 / 2007 U.S.Dist.LEXIS 37619) (D. Colo.)
PC-CO-0013-0022.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Memorandum Opinion and Order [Holding That Plaintiff Has Standing To Challenge 28 C.F.R. 540.20(b) And That It Violates The First Amendment Guarantee Of Free Speech] 08/09/2007 (504 F.Supp.2d 1109) (D. Colo.)
PC-CO-0013-0017.pdf | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Defendants' Motion to Amend Judgment 08/23/2007
PC-CO-0013-0005.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Motion for Finding Pursuant to 18 U.S.C. § 3626(a) 08/23/2007
PC-CO-0013-0010.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Response to Defendants' Motion to Amend Judgment 09/12/2007
PC-CO-0013-0006.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Defendants' Response in Opposition to Plaintiff's Motion for Finding Pursuant to 18 U.S.C. § 3626(a)(1) 09/12/2007
PC-CO-0013-0013.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Defendants' Motion to Stay the [the Nationwide Effect of the] Judgment [Pending Disposition of Plaintiff's and Defendants' Motions to Amend the Judgment] 09/13/2007
PC-CO-0013-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Response to Defendants' Motion to Stay [the Nationwide Effect of] the Judgment 09/24/2007
PC-CO-0013-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Defendants' Reply in Support of Motion to Amend Judgment 09/27/2007
PC-CO-0013-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Reply to Defendants' Response in Opposition to Motion for Finding Pursuant to 18 U.S.C. 3626(b)(1) 09/27/2007
PC-CO-0013-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order on Post-Trial Motions [granting Plaintiff's Motion for Finding Pursuant to 18 U.S.C. § 3626(a), Denying Defendants' Motions to Amend Judgment and to Stay Judgment] 10/04/2007 (2007 WL 2908931) (D. Colo.)
PC-CO-0013-0002.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Stipulated Settlement Agreement by and Between Plaintiff and Defendants Concerning Attorneys' Fees and Expenses 12/19/2007
PC-CO-0013-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order to Withdraw [Both Parties Motions re Fees and Costs in Lieu of Settlement Agreement] 12/19/2007 (D. Colo.)
PC-CO-0013-0012.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order [Approving 12/19/2007 Settlement Agreement Regarding Attorney Fees and Costs] 12/20/2007 (D. Colo.)
PC-CO-0013-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Bureau of Prisons 28 C.F.R. Part 540 - Inmate Communication With News Media: Removal of Byline Regulations, 75 Fed.Reg. 21163 (April 23, 2010). 05/10/2010
PC-CO-0013-0001.pdf | External Link | Detail
Judges Brorby, Wade (Tenth Circuit)
PC-CO-0013-0014
Krieger, Marcia S. (D. Colo.)
PC-CO-0013-0002 | PC-CO-0013-0004 | PC-CO-0013-0012 | PC-CO-0013-0015 | PC-CO-0013-0016 | PC-CO-0013-0017 | PC-CO-0013-0018 | PC-CO-0013-0019 | PC-CO-0013-0020 | PC-CO-0013-0021 | PC-CO-0013-0022 | PC-CO-0013-9000
McConnell, Michael W. (Tenth Circuit)
PC-CO-0013-0014
Mix, Kristen L. (D. Colo.) [Magistrate]
PC-CO-0013-9000
Seymour, Stephanie Kulp (Tenth Circuit)
PC-CO-0013-0014
Monitors/Masters None on record
Plaintiff's Lawyers Manville, Daniel E. (Michigan)
PC-CO-0013-0003 | PC-CO-0013-0006 | PC-CO-0013-0009 | PC-CO-0013-0010 | PC-CO-0013-0011 | PC-CO-0013-9000
Rovner, Laura Lee (Colorado)
PC-CO-0013-0003 | PC-CO-0013-0006 | PC-CO-0013-0009 | PC-CO-0013-0016 | PC-CO-0013-0017 | PC-CO-0013-0019 | PC-CO-0013-0020 | PC-CO-0013-0021 | PC-CO-0013-0022 | PC-CO-0013-9000
Ruan, Nantiya (Colorado)
PC-CO-0013-0016 | PC-CO-0013-0017 | PC-CO-0013-0019 | PC-CO-0013-0020 | PC-CO-0013-0021 | PC-CO-0013-0022 | PC-CO-0013-9000
Defendant's Lawyers Cook, Marcy Elizabeth (Colorado)
PC-CO-0013-0003 | PC-CO-0013-0005 | PC-CO-0013-0007 | PC-CO-0013-0008 | PC-CO-0013-0013 | PC-CO-0013-0017 | PC-CO-0013-0022 | PC-CO-0013-9000
Garcia, J. Benedict (Colorado)
PC-CO-0013-9000
Johnson, Michael Conrad (Colorado)
PC-CO-0013-0003 | PC-CO-0013-0005 | PC-CO-0013-0007 | PC-CO-0013-0008 | PC-CO-0013-0013 | PC-CO-0013-0016 | PC-CO-0013-0017 | PC-CO-0013-0018 | PC-CO-0013-0019 | PC-CO-0013-0020 | PC-CO-0013-0021 | PC-CO-0013-0022 | PC-CO-0013-9000
Traskos, Kevin Thomas (Colorado)
PC-CO-0013-0016 | PC-CO-0013-0017 | PC-CO-0013-0021 | PC-CO-0013-0022 | PC-CO-0013-9000
Other Lawyers None on record

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