Ray Hrdlicka v. Perry Reniff

Rаy Hrdlicka, individual; C. Statute Limitations Crime, an America, Inc., Justice & a California Finally, briefly we turn must corporation, Plaintiffs-Appellants, City’s argument plaintiffs that the filed untimely one-year suit under the Califor v. argument nia statute of limitations. This McGinness, John County Sacramento readily disposed by City’s waiver. Sheriff, Defendant-Appellee. A subject statute of limitations is to waiv er, including government defendant in 09-15768, Nos. 09-16956. See, §a e.g., 1983 case. Lucchesi v. Bar- United (9th Appeals, States Court of Ranch, Boys O 353 F.3d 696-97 Cir.2003) Ninth Circuit. (assuming that a waiver government § defendant in a 1983 case is Argued May Submitted 2010. possible, although not finding waiver under circumstances). Here, City did not Filed Jan. argue the statute of in May limitations its

31, 2007 for summary judgment, motion opinion

and the district court’s does not

address it.12 There also have been point,

waiver at an earlier May but this

2007 waiver was the latest and clearest.

We REVERSE the grant district court’s

of summary judgment in plain- favor of the

tiffs, and REMAND this case for further

proceedings.

Ray HRDLICKA, individual; Crime, America, Inc.,

Justice & a California

corporation, Plaintiffs-Appellants,

Perry RENIFF, L. capaci in his official

ty Butte, Sheriff of the

California, Defendant-Appellee. City 12. The raised the statute of limitations City limitations defense.” The apparently did court, before the determination, district appeal suffered an ad- from this and we ruling January verse in a 1998 order de- did not it address in our first encounter with nying parties' both summary motions for among the case. It questions was not judgment. "[bjecause The court certiorari, ruled that Supreme granted which the Court continuing nature of First Amendment and the accordingly Court did not injuries, rejects City's Court statute of consider it. REINHARDT,

Before: STEPHEN A. WILLIAM FLETCHER and N. SMITH, Judges.

RANDY Circuit Opinion by Judge WILLIAM A. FLETCHER; by Judge Dissent N.R. SMITH.

OPINION FLETCHER, W. Judge: Circuit Plaintiffs, Ray Hrdlicka publica- and his Crime, (“CJA”), tion Justice & America brought two claiming suits that their First rights being Amendment are violated the mail policies at two county jails in California that refuse to distribute unsolic- copies ited CJA inmates. The dis- trict granted courts each case summary judgment to defendants after applying the four-factor test of Turner Safley, U.S. 96 L.Ed.2d 64 (1987). Dosa, Alameda, CA, Andrew Alexander In these appeals, related we conclude Freeman,

Spencer Tacoma, WA, D. for the that questions of preclude material fact appellants. summary judgment to defendants. On Bradley Stephens, Justin Office of the record, this we cannot hold as a matter of Counsel, Oroville, CA, for appellee law under Turner that defendants have Perry Reniff. sufficiently justified their refusal to dis- Butts, Lynn Amanda Lynn Jeri Pap- tribute copies CJA to pone, Longyear Lavra, O’Dea and Sacra- inmates. We therefore reverse and re- mento, CA, appellee for John McGinness. respective mand to the district courts. Coble, Paul R. Mayer, Martin J. Jones Fullerton, CA, Mayer, & for Amicus Curi- I. Background

ae. Hrdlicka, Ray bondsman, a former bail

began publishing CJA in 2002. CJA ad- justice dresses criminal topics relevant to jail inmates. One recent issue of pub- included, lication for example, a section describing steps felony between a ar- conviction, rest and an article on firearms sentences, enhancements to a page humor. Approximately three-fourths of publication each contains such content. The remainder contains advertisements for at- Plaintiffs lawyers. distribution. made several re- agents bond bail get quests copies for electronic by promising inmate tracts advertisers denied, requests in front of thousands of roster. These were but message their Captain in immediate need of Jones informed Plaintiffs that a inmates who are pub- daily CJA has list of inmates was available in their Since services. list, copies. jail lobby. Using 1 million 14 editions and over December lished jails currently began mailing individually distributed 2004 CJA ad- CJA is states, includ- than 60 counties dressed unsоlicited to inmates at a more jails in ing county copy every California. ratio of one ten inmates. Librarian for the Califor- Principal The May Captain In Jones informed has recom- Department nia of Corrections jail that the no longer Plaintiffs would acceptable as an donation to mended CJA permit delivery of copies unsolicited of Department of Corrections the California Captain jail’s cited Opera- CJA. Jones the Fortune Business Law Libraries. Small Order, prohibits tions which the distribu- “surprisingly profes- a described CJA as tion of publications regardless unsolicited sional-looking 40-page upstart quarterly postage of content or rate. to According by lawyers articles written and other with Jones, Captain jail has never refused criminal-justice-system profеssionals and to deliver an requested CJA to inmate who to spotlighting glossies prefer issues most jail separate policy it. The has a limiting The record contains over 100 let- avoid.” personal property keep inmate can appreciation from inmates who ters in his cell to the amount that can be held publication have found the valuable. copy-paper in ‍‌​​​‌‌‌‌‌‌​‌​​‌​‌​​‌​‌‌​‌​​​​‌​‌​​​​‌​​‌​​‌​​​‌‌‍two boxes. An inmate keep up newspaper, periodicals, to one five rely subscriptions does not or CJA and five soft-covered books in his cell at Instead, for distribution. requests CJA any given time. magazines unsolicited to inmates delivers through jail of two If a one methods. 5, 2008, February On Plaintiffs filed distribution, agrees accept general CJA § injunctive against 1983 suit for relief weekly supplies magazines delivеrs County Sacramento Sheriff John McGin- jail staff then leave common areas of the ness, alleging jail’s that the refusal to dis- jail If a jail. accept general declines copies tribute unsolicited of CJA violates distribution, individually ad- CJA mails the First Amendment. The district court directly inmates dressed issues to some summary granted judgment Sheriff obtaining inmate after roster information. Turner. McGinness under method, typically either is de- Under CJA timely appealed. Plaintiffs weekly copy at a one livered ratio about every ten inmates. B. v. Hrdlicka Reniff

A. Hrdlicka v. McGinness August In Plaintiffs contacted the County in- September Department In Plaintiffs contacted Butte Sheriffs County distributing quire Sheriffs Office to about CJA to inmates Sacramento jail distributing County, in Butte California. Plain- inquire about CJA to jail County, proposed general tiffs distribution of Sacrаmento Califor- initially Alternatively, they requested list Captain respond- nia. Scott Jones CJA. mail individually copies addressed of of inmates so Plaintiffs could ed inmates, individually addressed issues of CJA. jail CJA could be delivered to but weekly general proposed not facilitate Plaintiffs distribution would every ten inmates. Sheriffs tect of a publication one issue for distribution to inmates officials informed Plaintiffs Department requested who have not it. proper The delivery would not allow analysis, however, is more nuaneed. to inmates of CJA examining regulations that restrict com- They through explained either method. inmates, munications with we first deter- jail’s policy prohibits that the mail distri- any mine whether First Amendment inter- bution of unsolicited commercial mail est is If implicated. such an interest is through general individually еither or ad- implicated, apply we the four-factor Tur- delivery. dressed ner test to decide whether that interest gives protected rise to a First Amendment jail’s policy The Butte mail right. in Departmental contained Order. That 23, 2004, order on September was issued applied Court this two- one month after contacted the Sher- Abbott, step analysis Thornburgh Department. prohibits iffs The order 401, 408, U.S. 104 L.Ed.2d distribution of all unsolicited commercial (1989). began by The Court stating inmates, regardless mail to of content or that “there question publishers is no postage County jail rate. The Butte has who who, wish to communicate with those policies limiting the amount of written ma- through subscription, willingly seek their terials can in keep inmates their cells and point of a legitimate view have First prohibiting inmates from leaving items in Amendmеnt in interest access to prison- common areas. 408, ers.” Id. at 109 S.Ct. Having 5, 2008, February On Plaintiffs filed a found interest,” such a “First Amendment § injunctive 1983 suit for against relief the Court then question turned to the of Reniff, Butte Perry Sheriff alleg- publishers whether the had actual First jail’s ing that the refusal to distribute un- send, right Amendment and the inmates solicited of CJA violates the First receive, particular communications granted Amendment. The court summary Turner, at Applying issue. the Court held

judgment to Sheriff Reniff under Turner. that regulations prohibiting certain com- timely appealed. Plaintiffs munications were valid despite unques- tioned First Amendment interest. Id. at II. Standard of Review 419, 109 Similarly, S.Ct. 1874. in Pell v. review de We novo a district court’s Procunier, 817, 2800, 417 U.S. 94 S.Ct. 41 granting summary judgment. order Ba (1974), L.Ed.2d 495 the Court wrote that Mesa, City 1217, 1220 monte v. 598 F.3d “restrictions that are asserted to inhibit (9th Cir.2010). Viewing in the evidence First Amendment interests must be ana- light most favorable to CJA and lyzed in legitimate terms of the policies Hrdlicka, we must determine whether goals system.” and of the corrections Id. any genuine there are issues of material 822, 94 S.Ct. 2800. The Court noted fact and whether the district courts cor might inmates have a “constitutional rectly applied the relevant substantive law. in particular interest” form of commu- See id. they sought, ultimately nication but held in that case that the interest did not give rise III. Discussion to a protected First right Amendment be- A. First Amendment strong cause of the countervailing interests argue Defendants categorically prison 823-24, administration. Id. at that the 827-28, First Amendment does pro- not 94 S.Ct. 2800. case, implicates very thus we first decide ment different

In this a First Amend publisher pub- has concerns from such communication whether distributing, interest in аnd opinion ment lic fora. The Court’s in re Amendment interest have a First precisely Turner those con- addresses publications. We have ceiving, unsolicited cerns. recognized publishers

repeatedly in Turner upheld prison The Court a First Amendment interest inmates have exchange policy that restricted the of non- See, each other. communicating with legal mail between inmates different Lehman, Legal News v. e.g., Prison family who were not institutions members. (9th Cir.2005) (“PLN ”); 692, II F.3d “[p]rison stated that walls Court do Abbott, Thornburgh v. 490 U.S. see also separating prison not form a in- barrier 1874, 104 L.Ed.2d 459 protections mates from the Consti- (1989). A interest First Amendment tution.” S.Ct. does distributing receiving information recognized, however, 2254. The Court request depend recipient’s prior on a “[rjunning is an inordinately City for that information. See Klein undertaking requires difficult exper- (9th Clemente, 584 F.3d 1204-05 San tise, planning, and commitment of re- Cir.2009) (“The unwilling mere fact that an sources, all of are peculiarly which within leaflet recipient must take the unsolicited province legislative and execu- it in the place from her windshield and government.” tive branches of Id. at 84- justify cannot an across-the-board garbage 85, 107 S.Ct. 2254. The Court held that restriction.”); City see also Martin v. prison regulation impinges “when a on in- Struthers, 141, 143, 148-49, 63 rights, regulation mates’ constitutional (1943) 862, (striking L.Ed. 1313 S.Ct. 87 reasonably legiti- is valid if it is related to a municipal as unconstitutional ordi down 89, penological mate interests.” Id. at 107 go nance that made it unlawful to door to S.Ct. 2254. handbills, circulars, or distributing door advertisements). why We see no reason provided The Court in Turner a four- ap not principle this well-established does evaluating factor test for the reasonable ply publisher’s distributing, to a interest jail prison regulation imping ness of a or interest in corresponding and an inmate’s on a ing right. constitutional Court receiving, unsolicited literature. justi ultimately accepted government’s publisher correspondence cannot deliver unso- fication that between unre

Because an licited communications to inmate at institutions facil lated inmates different street, distributing handbills on the or gang activity itated ‍‌​​​‌‌‌‌‌‌​‌​​‌​‌​​‌​‌‌​‌​​​​‌​‌​​​​‌​​‌​​‌​​​‌‌‍and could be used to cars, the leaving unsolicited leaflets on escape plans coordinate or violent acts. publisher cooperation needs some form of 482 at 107 S.Ct. 2254. It conclud U.S. authorities in order to prison from or neutral, “is content it policy ed (Indeed, literature. some co- distribute its goаls of institutional logically advances is needed for solicited communi- operation ..., safety it an security and and is not well.) However, jail prison cations as or objectives.” exaggerated response to those required authorities cannot be distribute 93, 107 Id. at S.Ct. irrespective

unsolicited communications The four-factor Turner test con might place the burdens such distribution siders: the First Amend- upon them. Whether (1) rationally regulation whether the is communication ment interest legitimate gov- to a and neutral gives inmates rise to a First Amend- related with 1050 (2) objective, whether there “pre-paid, for-profit, subscription publica

ernmental are alternative avenues that remain recognized tions.” We that “the number (3) right, ... exercise the open subscription for-profit publications that impact accommodating the asserted [prison] may enter greater than the guards pris- will have on other subscription non-profit publica number of oners, prison and on the allocation of tions,” (emphasis id. at 902 in original), but (4) resources; and the existence whether government we noted that the provided no easy and obvious alternatives indi- evidence “regarding impact pro regulation exagger- that the is an cates cessing pre-paid, for-profit subscription response by prison ated officials. publications prison would have on re II, Turner, (citing PLN 397 F.3d at 699 omitted). (emphasis sources.” Id. at 903 2254). U.S. S.Ct. We evalu- Finally, in Legal Prison News v. Lehman policies prison ate the of a or with “due (“PLN II”), (9th Cir.2005), 397 F.3d 692 regard ‘inordinately for the difficult under- we prison struck down a ban on “non- taking’ that prison is modеrn administra- subscription (publications bulk mail” tion,” recognizing that proposed “certain for). request pay but do not We interactions, though seemingly innocuous affirmed the finding district court’s laymen, potentially have significant im- “the ban on non-subscription bulk mail was plications for the order and security of the rationally related to a neutral govern prison.” Thornburgh, 490 U.S. at objective.” ment Id. at 699. S.Ct. 1874(quoting U.S. 2254). Our dissenting colleague concludes that prison forum, because a a non-public applied have We Turner test in four publisher has no First Amendment inter- involving cases the distribution of litera in distributing, est inmate has no case, ture to In inmates. each we have First Amendment interest in receiving, held unconstitutional un- policies that placed publications. restrictions on the solicited distribution of He therefore con- gift and publications. solicited cludes that the four-part Court’s Turner Crofton Roe, (9th 957, Cir.1999), v. 170 F.3d 960-61 inapplicable. test is respectfully We dis- we struck down a regulation prohibit agree. prisoner ed a from receiving a book that The Court and our court have by had been ordered for him stepfa his consistently applied the Turner test to de- ther. We held that “although the state termine whether various forms of written ample opportunity has had develop to a communication with protected inmates are record, justification it has offered no a for See, by the First Amendment. e.g., blanket ban on the receipt gift publi of all Thornburgh (applying Turner prison to Id. at cations.” 960-61. In Legal Prison regulation prohibiting specific publica- (“PLN I”),

News Cook 238 F.3d tions); v. Roe (applying Turner to (9th Cir.2001), 1151 Crofton we struck down a ban prison regulation banning gift publica- on bulk-rate mail as applied subscrip to tions); PLN I (applying prison Turner to non-profit publications. tion We noted regulation mail); banning bulk-rate Morri- receipt that “the of such unobjectionable (applying son v. Hall prison Turner to mail implicate penological [does not] inter regulation banning bulk-rate, and third Hall, ests.” Id. 1149. Morrison v. (9th class, mail); Cir.2001), and fourth PLN II (applying F.3d we ex mail). tended the holding non-subscription PLN I Turner to and struck bulk-rate a regulation down similar applied as to In the context of deciding whether the likely publications to be way to more than other applies, we see no Turner test such as purposes” used for “nefarious was at issue those distinguish what do blocking lights clogging or toilets. We here. All what is at issue cases from us, questiоn importance reducing not the cases, including the case now before the entering the likelihood of contraband jail or challenges prison to have individual fire, jails, reducing enabling the risk of forbidding various forms of regulations ques- Nor do we in efficient cell searches. The fact that communications. written discouraging pre- or importance tion the was unsolicited publication the this ease using paper for im- course, venting inmates from taken into account may, of However, proper purposes. defendants’ But the fact the Turner test. applying general statements are undercut the was unsolicited does publication they attempt evidence offer specific inapplicable. the Turner test not make degree pur- to to which these show jails’ poli therefore review We poses actually are served a refusal to Turner test. under the four-factor cies requested distribution of CJA. allow summary judgments review Because we example, Captain For Jones the Sac- defendants, the evi we view granted deposi- ramento stated his light in the most favorable CJA. dence jail accepted tion that until 2006 the deliv- “Rationally Legitimate ery Related to multiple of the (the Objective” Penological primary general Sacramento Bee cir- daily newspaper culation for the Sacra- Turner factor is sine The first area) basis.” “drop-off mento prison fails show qua “[I]f non: delivery of the Bee in stopped but for rationally related to a regulation is it gives reasons unrelated to those now objeсtive, legitimate penological we do refusing accept delivery Cap- of CJA. the other factors.” Ashker v. Cal. consider deposition, tain stated in his “I think Jones (9th Corr., 350 F.3d Cir. Dep’t of stopped at the time the Bee was because 2003). regulation rationally if is But perceived against of a crusade the sheriffs objec legitimate penological to a related department during period.” time tive, inquiry. is not the end of the elaborated, Captain very Jones “It was three Turner factors must also The other well, I think it expensive, as so was a court can decide be evaluated before factors, I combination of but believe that regulation policy or whether the coverage department during their permissible. catalyst to start period that time was looking аt those other factors.” Security a. Jail canceled, delivery and Butte After the Bee was Officers at the Sacramento of Today an refusing jail accepted to allow the USA unso- County jails assert Today was copies drop-off of unsolicited of licited basis. USA the distribution because, jails by year in after about a ac- promotes security re- cancelled Jones, jail long- to no cording Captain the likelihood of contraband enter- ducing Captain it. did reducing pay the amount of er wished to Jones ing jail, security among not list risks as the “com- thereby in each inmate’s cell reduc- clutter of factors” that motivated the enabling of fires and efficient bination ing the risk jail’s distributing either stop decision to The officers also assert cell searches. because, security newspaper unsolicited to inmates. He was promote once policies any specifically asked whether there was jail, publications are in the “covering lights paper they improper purposes. diminution of incidents of use for Today clogging jail toilets” when USA He County [and] stated that Butte inmates “I responded, He wouldn’t was cancelled. regularly pages misuse torn out from the kept I don’t think we ever know.... telephone jail books the provides every track of such numbers.” area, dayroom as well as from books do- jail by community. nated to the the local in his declaration

Captain Jones stated Lieutenant Flicker did not specify whether permitted that “inmates are not to leave likely distribution of CJA was to increase any materiаls in the common areas of the paper by the rate of such use of inmates. Jail,” and that are not materials “[t]here which are made available Further, jails already both sepa- have day placing copies any rooms.” policies rate regulating possession inmates’ However, opposite he stated his property, including paper, in their cells. deposition: subscrip- someone has “[I]f (“In Morrison, light See 261 F.3d at 902 gets tion and with it often done times regulation limiting the total amount of they’ll put it out for the other inmates to cell, property in a ... permitting inmates gets read.... an inmate done with a [I]f for-profit, subscription publica- receive novel, they might put it out for someone possibly tions could not increase the total get[.]” else to When asked “Would materials.”); volume of cell see also PLN a copy inmate be allowed to leave out II, 700; I, 397 F.3d at PLN 238 F.3d at Magazine they’re Time when done with 1150-51. It degree is thus unclear the it?”, Captain Jones answered “Yes.” which allowing distribution of CJA the Captain sought distinguish jails Jones produce would additional clutter in security posed by availability threat inmates cells or adversely otherwise affect newspapers in the common security. areas com- pared availability to the of CJA. He said b. Staff Resources deposition, his “If there were one Crime, Justice & America in a housing jails expressed Officers both concern unit, I think any don’t it would cause delivery that allowing of unsolicited copies greater security newspaper concern than a of CJA would require additional staff time. asked, would.” He was then if “What Officer James Fox of the Sacramento there was three [of CJA]?” He re- stated in a declaration ‍‌​​​‌‌‌‌‌‌​‌​​‌​‌​​‌​‌‌​‌​​​​‌​‌​​​​‌​​‌​​‌​​​‌‌‍that “Well, sponded, three would cause three pieces there are 700 of incoming mail and times, know, you you if have a minor con- pieces of outgoing per day mail at the cern, you then have three times a minor jail. “The mail is processed during the concern, so it’s still not—I don’t think it (60) night by a sixty shift total of persons,

would cause an panic, error but nor [sic] (30) (2) thirty per individuals shift over two would it consequence.” be without Cap- (24) A twenty-four shifts.... total of per- tain Jones did account for the fact that sonnel are per day hours used on mail a general circulation newspaper ordinarily related duties at the Jail.” But Officer CJA, pages has more than nor for the fact Fox gave many no estimate of how addi- that a copy newspaper typically new of a personnel tional required hours would be if every delivered day, copies whereas new of CJA were jail delivered to the once a week CJA would be only weekly. delivered at a ratio of one every issue for ten in- Bryan

Lieutenant Flicker of the Butte mates. Officers at Butte County pro- Jail County jail in stated his declaration that quantifying vided no information the addi- jail already have to access tional resources that required would be Indeed, America, they did not even tract with Partners for a Safer distribute CJA. (“PSA”), operates the resources Inc. under which information about PSA provide delivery. jail to mail in the jail currently devotes bulletin boards which bail agents post bond are allowed to advertise- jail suggested that unsolicit Neither has pays jail percentage ments. PSA in are more difficult to ed publications profits from advertising its its sale of publications. than spect and deliver solicited space on the bulletin boards. Sheriff Ren- (“The I, at 1150 PLN 238 F.3d Cf . distributing cop- iff unsolicited stated no evidence Department presented has ies of would be CJA inmates inconsis- distinction between supporting rational jail’s tent with the contract with PSA. subscription in non the risk of contraband However, it is not clear on the record organization standard mail and first profit that, fact, distributing before us mail.”). or periodicals class would inconsistent with the contract. Slope Slippery c. important, More it is obvious expressed a concern Captain Jones Reniff) (though by not statеd Sheriff accept publications that “to his declaration if permitted unsolicited of CJA are would set magazines publisher or from one jail, agents the value to bail bond precedent for the Jail and an unworkable advertising jail on the bulletin boards will any other obligate accept could the Jail to be diminished. That diminution in value publications appeared on the door- price paid well be reflected in a lower acknowledged step.” Captain But Jones advertisers, to PSA the a corre slope deposition slippery in his jail sponding paid lower amount to the jail was not a concern when the problem jail PSA. do not believe that a has a We copies of the Sacra- accepted unsolicited interest, legitimate penological pur Today. specifi- He mento Bee and USA Turner, poses protecting profit not cease cally stated that did by impinging on inmates’ made First Today “because of distributing USA rights. Amendment Reniff cites no Sheriff value any precedential concern about supporting proposition, case such a and we that it would set.” are aware of none. “maybe Jones could recall Captain County jail, like the Sacramento requests three” to distribute jail, County post- Butte has bulletin boards to inmates in Sacramento publications ed with information about bail bond County jail since 2000. Of those three jail, agents. County the Butte Unlike requests, Captain could not remem- Jones however, County jail is the Sacramento regular as any publications ber if were for paid money allowing nо in return for these one-time-only leaflets. opposed merely postings. County jail present officers did not Butte any requests evidence about other dis- 2. Alternative Avenues to mail. tribute unsolicited Right Exercise the Existing with d. Interference factor is whether The second Turner Advertising avenues remain available for “other right.” County exercise of the asserted Reniff of the Butte Jail Sheriff (internal interest his desire S.Ct. asserts as an additional omitted). citation advertising quotation of bail marks and to maintain control over that CJA has alternative argue has a con- Defendants jail. in the Butte inmates, inmates be- er and on the allocation of prison communicate with avenues to to in- at jails generally.” the will distribute CJA resources cause it. But there is a request who 107 S.Ct. 2254. accommodation mates “When whether, right significant of fact as of an have a question material asserted will matter, effectively can practical ‘ripple pris- Plaintiffs effect’ on fellow inmates or on they staff, county jail inmates if can deliv- particularly reach courts should be def- only upon request. er CJA erential to the informed discretion of cor- rections officials.” Id. Morrison, at we held 261 F.3d weighed the second Turner factor above, As discussed there are material against legitimacy policy the of mail whether, fact questions of as to and to would de- publications when restricted degree, jails what the would be forced to only they higher if were sent at a livered expend significant additional resources if “ ‘[Playing higher rate. rate is not an CJA is delivered either of the two prisoner cannot alternative because sought by methods Plaintiffs. Plaintiffs use, publisher force a who needs to and is they willing state that are to work with use, entitled to the standard rate to take easy officials to make distribution as costly steps additional to mail his individu- possible. efficient as seek to de- Plaintiffs ” I, (quoting al PLN newsletter.’ Id. only copy every liver one of CJA for ten 1149). Here, unlike our F.3d earlier week, each inmates and have offered the cases, jails’ policies require do jails option delivery general either CJA, pay inmates to or for CJA to mail individually mailings. or addressed Cf. higher postage its issues at a rate. I, PLN 238 F.3d at 1151. Officers Cf. Morrison, 261 F.3d at 904. jails have not explained inspec- how mail distinguish tors will copy between a However, practice, it is difficult to CJA that is solicited and one is not. among create broad awareness of CJA If jails compile subscription have to where, jails inmates in in prisons, unlike compare incoming lists and mail to those populations quickly. turn It over is true lists, a ban on unsolicited mail could actu- can publication advertise its ally prison consume more resources than through yellow pages or tele- accepting (prison such mail. id. offi- vision, both of which are Cf. available arguing impractical cials that it is to distin- jails, through word of mouth. But guish between solicited and unsolicited many inmates will have left the before mail). CJA, they can learn about the existence of them, that it request be sent to and then Exaggerated Response 4. it. typically receive Inmates want infor- by Prison Officials attorneys mation about bail bonds and as they jail. soon as arrive at the For those requires The fourth Turner factor only significant who receive CJA after a us to consider “whether the existence of wait, the advertising CJA is little or easy and obvious alternatives indicates no use. regulation exaggerated is an re II, sponse by prison officials.” PLN Impact of Accommodating F.3d at 699. “This is not a ‘least restric Right the Asserted tive alternative’ test: officials do up

The third Turner factor is “the im not have to set and then shoot down pact every accommodation of the asserted consti conceivable alternative method of guards accommodating tutional will have on and oth- the claimant’s constitution- 90-91, tribution of CJA violates California’s bail complaint.” al regulations. that licensee The district courts fully alternative “[A]n 107 S.Ct. 2254. issue, rights at de did not reach this аnd we decline accommodates the [asserted] it in the first instance. inter- to decide minimis penological cost to valid “regulation the does suggests ests” Conclusion relationship reasonable satisfy Id. reasons, 2254. foregoing S.Ct. For the standard.” we reverse Here, alternative is the lim- suggested granting the district courts’ orders sum- Plaintiffs, by com- sought mary judgment ited distribution to Defendants. On the by us, outright imposed to the ban we cannot pared record before determine as County County justi- and Butte Sacramento matter of law that Defendants have jails. banning fied the unsolicited distribution of county jail CJA to inmates under the four- undisputed fact that CJA is current- factor Turner test. remand to We than 60 counties ly distributed more proceedings courts for further district con- states, including in 32 throughout 13 Cali- opinion. sistent with this county jails, suggests that the re- fornia jails may the two this case be REVERSED REMANDED. sponse of a marked contrast exaggerated. There is SMITH, Judge, dissenting: N.R. Circuit strong general state- defendants’ between Crime, ways ban on unsolicit- Justice Ray publishes ments about Hrdlicka penological (“CJA”), serves their & America copies glossy ed of CJA quarterly hand, weak, and the purposes, on the one publication that is distributed for free to degree contradictory, specific to some inmates across the United States. they support offer to those state- evidence a free distribution Hrdlicka has chosen ments, Further, defendants on the other. in which model of business CJA either they not demonstrated that cannot given put have to correctional facilities to be weekly work with CJA to establish distribution common areas on a basis or sent to (which that minimize the drain on schedules from the inmate rolls list culled record). Finally, possibility Apparently, resources. it public are has policy Butte Jail’s is motivated been a successful business model. Since losing revenue from bail a concern with over one million its introduction suggests also that the bond advertisements have been distributed to CJA exaggerated re- jail’s policy inmates across the United States. CJA’s advertisers, sponse. revenue comes from its who primarily agents are bail bonds and law- Summary advertisers, yers. soliciting CJA claims the advertisements will be seen “hun- Taking light the evidence most pre-trial to thousands” of inmates. dreds evaluating to Plaintiffs and favorable under the four Turner factors, we evidence now this court to assist Hrdlicka asks is entitled to hold that neither dеfendant increasing him in further the circulation of summary judgment. objections over the of two sheriffs CJA accommodating Hrdlic- who believe

B. California Law model would burden the ka’s distribution facili- justi- of their correctional separate assert as a administration Defendants found that ‍‌​​​‌‌‌‌‌‌​‌​​‌​‌​​‌​‌‌​‌​​​​‌​‌​​​​‌​​‌​​‌​​​‌‌‍previously to deliver unso- ties. While we have fication for then.’ refusal Hrdlicka guarantees the First Amendment copies of to inmates dis- licited 1056 (9th Cir.2001) Hall, 896, requested that have 261 F.3d 905 prisoners

access (“[P]risons CJA, requests prisoner adopted policies there have been no can and have Further, precedent sug- no permitting prisoners [requested] here. there is to receive guaran- time, Amendment gesting that the First at publications, pro- while the same right any to sue special tees Hrdlieka the hibiting prisoners receiving from unsolicit- mail.”) added); refuses to be a de distri- junk sheriff who (emphasis ed Prison facto Lehman, 692, arm of the bution CJA. Legal News v. 397 F.3d 701 (9th Cir.2005) (Distinguishing Jones v. a majority The holds that there is “First Union, North Carolina Prisoners’ Labor distributing Amendment interest and Inc., 119, 2532, 433 U.S. 97 S.Ct. 53 publications.” It receiving unsolicited (1977), by “In stating: L.Ed.2d 629 this Clemente, City cites Klein v. San 584 of case, every piece by of mail sent PLN is (9th Cir.2009), proposi- for the F.3d 1196 a request recipi- sent as a result of protections tion that the First Amendment request ent ... it is the fact that a was depend request not recipi- do of the ... recipient impor- made that is Klein, however, explicitly ent. deals with tant.”) “public First Amendment restrictions in fora.” 584 F.3d at 1200-01. Prisons are party disputes No that we have no re- public fora. See United States v. quest part any on a of prisoner to receive (9th Cir.1978). 545, Douglass, 579 F.2d 549 the CJA. Prisoners’ First Amendment prisons Instead are one of a “public few rights implicated way. are not In- any perform speech- institutions which do not stead, asking Hrdlieka is the court to cre- related functions at all ... [where] rule, special ate a under the First Amend- government peace- is free to exclude even ment, protecting his chosen method of speech assembly ful and interferes which distributing CJA to inmates. any way functioning with the of those Any analysis involving First Amendment Id.; organizations.” Adderley see also v. prisons must be couched in the under- Florida, 39, 41, State 385 U.S. 87 S.Ct. standing that: (1966) 242, (“Jails, 17 L.Ed.2d 149 built for fora].”) security purposes, [public are not equipped are'ill to deal with the [C]ourts majority’s statement, that “Turner increasingly urgent problems 78, Safley, [v. 482 U.S. 107 S.Ct. 96 administration Run- and reform.... (1987) any ning L.Ed.2d 64 addresses” “con a prison inordinately ] is an difficult rеgarding cerns” undertaking requires the difference between expertise, public prisons, unavailing. fora and is As planning, and the commitment of re- Turner, Supreme sources, Court stated in peculiarly all of which are with- task, then ... province legislative “[o]ur is formulate a and prisoners’ standard of review for constitu government. executive branches is, moreover, tional claims /[.]” U.S. Prison administration added). (emphasis prison S.Ct. 2254 No task that has been committed to the branches, implicated responsibility ers’ constitutional claims are of those Turner, separation powers this case. Both before and after concerns counsel Court and policy judicial this court have restraint. a state Where uniformly frequently involved, against penal system cautioned federal courts judicial allowing publishers rule of unso have ... additional reason to accord def- publications licited appropriate prison demand dis erence to the authori- prisons. tribution within See Morrison v. ties. 84-85, non-public merely access to a forum 107 S.Ct. 2254 be- Martinez, 416 use of that forum be the most

(discussing Procunier cause 40 L.Ed.2d delivering speaker’s means of U.S. efficient (internal (1974) marks and cita quotation Hrdlicka has chosen not message.”). omitted). understanding, this tions With new In- acquire readership. advertise to press has held that the Supreme the Court stead, advantage he seeks the cost of auto- to right constitutional of access has “no any jail matic distribution at he chooses to beyond that af or their inmates prisons not a target. right. He does have such v. Procu general public.” the Pell forded majority’s analysis under The Turner nier, 817, 834, 94 S.Ct. 417 U.S. problem further demonstrates the with (1974). dealt with While Pell L.Ed.2d finding special right a First Amendment prisons attempting to access press the By for Hrdlicka’s distribution method. al- information, it one gather to remains order lowing right CJA the to demand unre- the only cases that has dealt with of the distribution, majority quested the forces no right prisons of access to when press’s all unrequested sheriffs either to allow imp right prisoners has been concurrent or to a mail to reach inmates make case licated.1 quality case determination of the of the right of press special as the had no Just publication. discussing the Turner fac- Pell, prisons here Hrdlicka has access tors, majority United States Appeals, Court of special not have a First Amendment Ninth Circuit. in prisons, to demand distribution and McGinness are Sheriffs Reniff entitled Argued and Dec. Submitted 2010. summary judgment. Filed Feb. FIRST NATIONAL MORTGAGE COM-

PANY, corporation, a California

Plaintiff-Appellee,

v.

FEDERAL REALTY INVESTMENT

TRUST, Defendant-Appellant. Mortgage Company,

First National corporation,

a California

Plaintiff-Appellant,

v. Realty Trust,

Federal Investment

Defendant-Appellee. Mortgage Company,

First National corporation,

a California

Plaintiff-Appellee, Realty Trust,

Federal Investment

Defendant-Appellant. the notes those “[f]or who accept a sheriff special right no to demand wait, only after a significant receive CJA distribution, chosen methods of one of his advertising the bail bond in CJA is of little given that a is not especially But Supreme or no use.” Court has pris- If like public forum. Hrdlicka would dictated that the value of information to CJA, he option oners to read has is not valid consideration. money that all spending the time and other test, terms, simply Turner its “[T]he press spend order to members does not accommodate valuations of con- Namely, Hrdlic- acquire readership. new 223, 230, v. Murphy, tent.” Shaw 532 U.S. ka can advertise both in and outside of the (2001). 149 L.Ed.2d 420 S.Ct. (or jail in an effort to convince inmates majority require now Thе would valuation noninmates) request publication.2 his any publisher of content for or bulk mail rely mouth that He can also word of prisons that asked for access to advertiser develop take many publications the time to (if no valuation is to be made then the among their readers. this method While majority suggest unrequest- would that all acquiring costly, readers ed mail should be allowed unless Turner is prisons, losing advantages context of “cost satisfied). impossible assessment is Such fundamentally implicate not free does precedent. under Court Jones, 130-31, speech values.” 433 U.S. at Instead, simpler and saner rule is 2532; 97 S.Ct. see also Cornelius v. special that Hrdlicka has no First Amend- Legal NAACP and Educational Defense Inc., that a 788, 809, right prison agree ment to demand Fund, 473 U.S. (1985) (“The methods. A pris- to one of his distributiоn 87 L.Ed.2d 567 First forum, public on is not a ban on Amendment does demand unrestricted requested with an inmate's 2. No inmate has been refused a 1. Pell also dealt However, analysis press. copy access to of CJA. separately press's right was done from the Pell, prison. access to the See 823-828, 94 S.Ct. 2800. Mortgage Company, a content neu- First National publications is unrequested corporation, for sheriffs ensure efficient California tral method Plaintiff-Appellant, A pub- of their facilities. administration develop readership wishing lisher is free to advertise or among prisoners Realty ‍‌​​​‌‌‌‌‌‌​‌​​‌​‌​​‌​‌‌​‌​​​​‌​‌​​​​‌​​‌​​‌​​​‌‌‍Trust, Federal Investment programs mouth to en- develop word of Defendant-Appellee. publication. of a courage request not entitled to use the First publisher is 09-16377, 09-16453, Nos. savings acquiring cost Amendment for 09-17012, 09-17277. Therefore, readers. Hrdlicka does new

Case Details

Case Name: Ray Hrdlicka v. Perry Reniff

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 31, 2011

Citation: 631 F.3d 1044

Docket Number: 09-15768, 09-16956

Court Abbreviation: 9th Cir.