Prison Legal News produces a monthly publications and books that are mailed to subscribers within the Arizona Department of Corrections (ADOC). On November 6, 2015, Prison Legal News filed this § 1983 lawsuit in the U.S. District Court of Arizona against the ADOC alleging violations of the First and Fourteenth Amendments. Specifically, the plaintiffs alleged that ADOC's refusal to deliver issues of the monthly publication to inmates when the publication contained articles with "non-selacious descriptions of sexual activity" was censorship in violation of the First Amendment. Additionally, the plaintiffs alleged that they were not given constitutionally adequate notice under the Fourteenth Amendment. The plaintiffs sought declaratory and injunctive relief.

After the filing of the complaint, the parties engaged in extensive discovery.

On December 22, 2016, the defendants moved for judgment on the pleadings. They argued that, because the law regarding the submission of sexually explicit materials to inmates was unclear, the defendants were entitled to qualified immunity. Additionally, the defendants argued that the plaintiff’s due process claim should be dismissed because the plaintiffs were provided with notice and opportunity to respond to the decision that their publication would be excluded. The defendants stated that the plaintiffs were successful in reversing three of the four decisions and, in the fourth decision, the article was published with a two paragraph redaction. Additionally, the defendants noted that, shortly after the plaintiff’s complaint was filed, the defendants “voluntarily adopted and implemented an administrative regulation requiring that publishers be given notice if their publications are excluded.” Finally, with respect to the First Amendment claim, the defendants stated that the plaintiff challenged the defendants’ old publication policy, and not the recently adopted one.

On September 30, 2017, the court granted in part and denied in part the defendants’ motion for judgment on the pleadings. The court dismissed the plaintiff’s Fourteenth Amendment claim as moot. However, the court gave the plaintiffs leave to amend the First Amendment claim to conform with the evidence presented up to this point.

On October 13, 2017, the plaintiffs submitted a second amended complaint. In the second amended complaint, plaintiffs added two additional prison staff defendants. Additionally, the plaintiffs alleged that the defendants had also been censoring one of the books they sought to deliver to subscribers. The plaintiffs alleged that the refusal to deliver the book was also a violation of due process.

On May 14, 2018, both parties moved for summary judgment.

On March 8, 2019, the court granted in part and denied in part the motions for summary judgment. The court granted the plaintiff’s motion for summary judgment on the due process claim because the plaintiffs were not given adequate notice or an opportunity to respond to the exclusion of their publications, even under the new policy. The court also granted summary judgment in favor of the plaintiff's due process claim against two of the defendants who had been personally involved with the exclusion in their individual capacity. However, the court dismissed the due process claims against the other defendants in their individual capacities.

On the First Amendment claim, the court held that the defendants’ policy was unconstitutional on its face because it was overbroad and not rationally related to its interest in rehabilitation. The court also held that the policy was unconstitutional as applied to the plaintiff’s materials because the excluded text was not related to the defendants’ interests and was “educational and informative in nature.” Each party was directed to file proposed language on the final injunctive relief for the claims on which the plaintiff prevailed.

The court did not make a ruling on the as-applied challenge to the book, as neither party briefed the constitutionality of the policy as applied to the book. The parties continued with discovery for a trial set for October, 2019. On September 13, 2019, Prison Legal News filed a notice of partial settlement and release. The court approved the settlement on October 2, 2019 in an order that also dismissed with prejudice the claims against several defendants in their individual capacities and the First Amendment claims for injunctive relief. The court retained jurisdiction over the settlement.

In execution of the settlement, the court ordered the defendants to make policy amendments on November 6, 2019. Several of the defendants appealed the November 6 order as well as the March 8 denial of their motion for summary judgment. They also filed a motion to stay proceedings regarding attorneys' fees and costs pending the outcome of their appeal. The court granted the stay on December 19, 2019. As of this writing on April 11, 2020, litigation is stayed pending the appellate outcome and the settlement remains in force. This case is ongoing.

Kat Brausch - 01/30/2016
Cianan Lesley - 03/11/2019
Alex Moody - 04/11/2020


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