In 2002, a non-profit monthly periodical publisher filed an action in the U.S. District Court for the District of Kansas against the secretary of the Kansas Department of Corrections ("KDOC"), alleging that the plaintiff's First Amendment rights were violated by the defendant's regulations. The court consolidated the plaintiff's case with two ongoing cases that had been originally filed against KDOC officials by inmates under KDOC supervision. All plaintiffs were represented by private counsel and sought declaratory and injunctive relief and actual damages.
Bringing their cases under 42 U.S.C. § 1983, the plaintiffs asserted that the KDOC regulations and policies violated their First Amendment rights, as well as Fifth and Fourteenth Amendment due process rights, since the rules prohibited inmates from receiving gift subscriptions of publications and limited the amount of money that inmates can spend on publications. The regulations also did not require any notification to a publisher when KDOC does not deliver a publication.
On April 29, 2003, the District Court (Judge G. Thomas VanBebber) granted defendants' motion for summary judgment and entered judgment in favor of defendants. Zimmerman v. Simmons, 260 F. Supp.2d 1077 (D. Kan. 2005). In its opinion, the Court held that the KDOC policies were reasonably related to legitimate penal interests, such as deterring crime, maintaining safety and protecting prisoners' abilities to honor financial obligations. The gradual system established under the regulations by which prisoners gained, over time, increased access to publications was viewed by the district judge as a reasonable behavior management tool.
Plaintiffs appealed. Counsel from the ACLU of Kansas and Western Missouri participated in the appeal as amicus curiae. On December 21, 2004, the Tenth Circuit reversed Judge VanBebber's decision. Jacklovich v.Simmons, 392 F.3d 420 (10th Cir. 2004) (Circuit Judge Paul Kelly, Jr.). Because grant of a motion for summary judgment was being appealed, the standard of appellate review required the court to view all pleadings in a light most favorable to the plaintiffs. In that light, Judge Kelly found that the KDOC's asserted bases (security and behavior management)for the regulations were insufficient and a district court trial was required to assess whether less restrictive alternatives existed. The appellate court also found so minimal the burden on KDOC of providing notice to publishers that an item had not been delivered to a prisoner that it directed the district court, on remand, to fashion a procedure for such notice.
After remand, defendant filed a motion for partial summary judgment based on qualified immunity in his individual capacity. The district court granted defendant's motion as to all claims against him in his individual capacity. The court also dismissed the cases filed by the prisoners, since their claims were rendered moot after they were paroled. Therefore, the only parties remaining were the publisher and the Secretary of Corrections. The issues before the court were (1) whether KDOC's regulations that prohibit gift subscriptions and limit the amount an inmate may spend on publications were unconstitutional and (2) fashioning an appropriate procedure that provides notification to publishers when an inmate does not receive a publication.
After a two-day trial in February 2007, District Judge Monti L. Belot issued an unpublished order on October 1, 2007. The judge found that the Kansas regulations were unconstitutional, particularly given the availability of less restrictive means of advancing the asserted penal interests and the lack of reasonably available alternative means for prisoners to access the information denied them under the regulations. He noted that the federal Bureau of Prisons allows prisoners to receive gift subscriptions, making the state's total ban difficult to persuasively justify. Judge Belot's opinion also adopted a form of individualized notice to publishers that the plaintiff had proposed as sufficient to give an opportunity to be heard when their publications had been rejected. The form was based on a federal BOP form.
Since this October 1, 2007 ruling, transcripts from the proceedings held on 2-13-2007 and 2-14-2007 were redacted, and a bill calculating attorney's fees was ordered on December 20, 2007. This bill totaled $62,760.00 in attorney's fees, $4,128.75 for nontaxable expenses and $2,422.07 for the bill of costs for a total judgment of $69,310.82.Mike Fagan - 04/25/2008
Christina Bonanni - 11/03/2013