Crime Justice & America, Inc. v. Kory Honea

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRIME JUSTICE & AMERICA, INC., Nos. 15-16119
Plaintiff-Appellant, 16-17195
v. D.C. No.
2:08-cv-00343-
KORY HONEA, in his official capacity TLN-EFB
as Sheriff of the County of Butte,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Filed November 29, 2017
Before: William A. Fletcher and Richard C. Tallman,
Circuit Judges, and Kenneth M. Hoyt, * District Judge.
Opinion by Judge Tallman
*
The Honorable Kenneth M. Hoyt, United States District Judge for
the Southern District of Texas, sitting by designation.
2 CRIME & JUSTICE AMERICA V. HONEA
SUMMARY **
Prisoner Civil Rights
The panel affirmed the district court’s bench trial
judgment in favor of defendants and affirmed the denial of
plaintiff’s motion to re-open discovery and for relief from
judgment in a 42 U.S.C. § 1983 action challenging Butte
County Jail’s policy prohibiting the delivery of unsolicited
commercial mail to inmates.
Plaintiff, a publisher of a magazine aimed at county jail
inmates, argued that the jail’s mail policy violated the First
Amendment. The panel held that each of the four factors set
forth in Turner v. Safley, 482 U.S. 78 (1987) favored
defendant and therefore that Butte County’s ban on inmates’
receipt of unsolicited commercial mail was reasonably
related to a legitimate penological objective. The panel held
that: (1) the ban was intended to limit inmates’ access to the
type of paper most likely used to compromise jail security;
(2) electronic kiosks where inmates could access an
electronic version of the magazine were an adequate
alternative; (3) defendant established that distributing the
magazine would have a significant impact on the allocation
of jail resources; and (4) paper had created serious problems
at the jail, and the mail policy was not an exaggerated
response to those problems.
The panel held that plaintiff abandoned its arguments
related to the post-trial admission of a declaration and its
appeal of the district court’s denial of its motion for relief
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CRIME & JUSTICE AMERICA V. HONEA 3
from judgment and its motion to re-open discovery. The
panel noted that plaintiff failed to explain why it objected to
the admission of the declaration or what new evidence
pertaining to the electronic kiosks it could have discovered.
COUNSEL
Spencer D. Freeman (argued), Freeman Law Group Inc.,
Tacoma, Washington; Savannah R. Blackwell, San
Francisco, California; Andrew Sosa, Alameda, California;
for Plaintiff-Appellant.
John R. Whitefleet (argued) and Thomas L. Riordan, Porter
Scott APC, Sacramento, California; Bruce S. Alpert, County
Counsel, Office of the County Counsel, County of Butte,
Oroville, California; for Defendant-Appellee.
OPINION
TALLMAN, Circuit Judge:
Crime, Justice & America, Inc. (“CJ&A”) appeals the
entry of judgment in favor of Butte County Sheriff Kory
Honea following a bench trial in CJ&A’s 42 U.S.C. § 1983action against the Sheriff. The Sheriff oversees operation of
the Butte County Jail, which prohibits delivery of unsolicited
commercial mail to inmates. CJ&A publishes a magazine
aimed at county jail inmates and argues that the jail’s mail
policy violates the First Amendment.
Based on the evidence presented at trial, the district court
found the policy justified by legitimate penological interests.
It also determined that electronic distribution of the
4 CRIME & JUSTICE AMERICA V. HONEA
magazine at recently installed kiosks was an adequate
substitute for regular distribution of paper copies, which
would have introduced thousands of pages of unsolicited
paper into a facility where inmates habitually misuse paper
in ways that threaten institutional security. Because the
policy is reasonably related to a valid penological interest,
the district court held the policy does not violate the First
Amendment and granted judgment for the Sheriff.
I
A
Crime, Justice & America (“the magazine”) contains
articles intended to help inmates navigate the criminal justice
system, as well as advertisements for attorneys and bail
bondsmen. CJ&A provides the magazine to inmates for free;
it does not offer subscriptions. Its only source of revenue is
the advertising it sells.
CJ&A distributes its magazine in one of two ways. In
jails that allow “general distribution,” stacks of the magazine
are left in common areas each week. In other jails, copies of
the magazine are individually addressed and mailed to one
out of every ten inmates, using publicly available inmate
roster information.
B
The Butte County Jail in Oroville, California, houses an
average of 580–590 inmates each day. Due to staffing
constraints, inmates are not directly supervised by a
correctional officer for significant portions of the day. The
jail instead employs “remote surveillance, direct
observation” and “linear” models of supervision, so
corrections officers spend just a few minutes of every hour
CRIME & JUSTICE AMERICA V. HONEA 5
in each housing area, or briefly observe inmates from
hallways without even entering housing areas. That means
corrections officers are not physically present in all areas of
the jail to continually monitor inmate behavior.
Abuse of paper is a persistent problem at the Butte
County Jail. Inmates use paper to cover windows, speakers,
and lights; to clog toilets and block air vents; to start fires;
and to conceal contraband. Jail officials report that paper-
related violations occur “every day.” These violations are
almost always committed using paper with which inmates do
not have a personal connection, such as pages torn out of
phone books or donated paperbacks. Correctional
supervisors testified that “personally owned papers” such as
letters, photographs, and legal mail are almost never used for
such purposes.
In an effort to combat paper-related violations, thirty-one
electronic kiosks were installed throughout the jail in 2014,
along with two portable kiosks. The kiosks allow inmates to
access electronic versions of the jail handbook,
administrative forms, and reading material. The kiosks can
easily accommodate reading material uploaded in portable
document format (“PDF”).
C
In 2004, CJ&A requested permission to distribute 50–55
paper copies of its magazine at Butte County Jail every
week. Each issue of the magazine has 36–40 pages, so
granting CJ&A’s request would have resulted in the
introduction to the facility of at least 1,800 pages’ worth of
material every week. Butte County officials refused CJ&A’s
request, citing a longstanding but unpublished policy
forbidding the delivery of unsolicited commercial mail to
inmates. The month after CJ&A made its request, Butte
6 CRIME & JUSTICE AMERICA V. HONEA
County issued a departmental order that put this policy into
writing.
CJ&A corresponded with Butte County officials for
several years, trying unsuccessfully to convince them to
distribute the magazine. In 2008, CJ&A filed a civil rights
suit against the Butte County Sheriff in the Eastern District
of California, arguing that the jail’s ban on unsolicited
commercial mail violates the First Amendment. The district
court entered summary judgment for the Sheriff. CJ&A
appealed and a prior panel of our Court reversed and
remanded, holding that questions of material fact precluded
summary judgment. Hrdlicka v. Reniff, 631 F.3d 1044, 1046
(9th Cir. 2011), reh’g en banc denied, 656 F.3d 942 (9th Cir.
2011), cert. denied sub nom. Reniff v. Hrdlicka, 565 U.S.
1197 (2012).
The district court conducted a four-day bench trial in
November 2014. During the trial, jail officials testified that
they would permit PDF versions of the magazine to be made
available on the electronic kiosks they had recently installed,
but the kiosks were not properly working at the time. In
February 2015, while the case was still under submission
awaiting the court’s decision, the Sheriff moved to reopen
the case and proffered Jail Operations Commander Captain
Jerry Jones’s declaration that “the kiosks/monitors . . .
[were] now fully operational.” CJ&A objected, but the
district court granted the motion and admitted the Jones
declaration into evidence.
In May 2015, the district court rendered its judgment in
favor of the Sheriff, holding that the jail’s mail policy did
not violate the First Amendment and denying CJ&A’s
claims for declaratory and injunctive relief. CJ&A appealed.
It also filed a motion for an Order Indicating Willingness to
Entertain a Motion to Re-Open Discovery, or in the
CRIME & JUSTICE AMERICA V. HONEA 7
alternative a Motion for Relief from Judgment and to Re-
Open Discovery, arguing that it should be permitted to
conduct discovery regarding the kiosks. The district court
denied the motion, and CJ&A appealed that ruling.
We consolidated both appeals and we have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm.
II
We review de novo the constitutionality of Butte
County’s mail policy, “the district court’s conclusions of
law, and its determinations on mixed questions of law and
fact.” Cal. First Amendment Coal. v. Woodford, 299 F.3d
868, 872–73 (9th Cir. 2002). The district court’s underlying
factual findings are reviewed for clear error, and we “will
not disturb those findings without a ‘definite and firm
conviction that a mistake has been committed.’” Id. at 873(quoting Jones v. United States, 127 F.3d 1154, 1156 (9th
Cir. 1997)).
III
The Sheriff initially argued that Butte County’s mail
policy does not impinge on inmates’ constitutional rights at
all because “the First Amendment does not protect
distribution of a publication to inmates who have not
requested it.” Hrdlicka, 631 F.3d at 1048. We rejected that
argument in Hrdlicka, holding that “publishers and inmates
have a First Amendment interest in communicating with
each other,” whether that communication is solicited or not.
Id. at 1049. Therefore, Butte County’s mail policy should
be evaluated under the test established for reviewing
constitutional challenges to prison regulations in Turner v.
Safley, 482 U.S. 78 (1987). Id.8 CRIME & JUSTICE AMERICA V. HONEA
In Turner, the Supreme Court acknowledged that
“[r]unning a prison is an inordinately difficult undertaking
that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of
the legislative and executive branches of government.”
482 U.S. at 84–85. It sought “to formulate a standard of
review for prisoners’ constitutional claims that is responsive
both to the ‘policy of judicial restraint regarding prisoner
complaints and [to] the need to protect constitutional rights.”
Id. at 85 (quoting Procunier v. Martinez, 416 U.S. 396, 406
(1974), rev’d on other grounds, Thornburgh v. Abbott,
490 U.S. 401, 413–14 (1989)).
The Court concluded that “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests.” Id. at 89–90. It laid out a four-factor test for
evaluating the reasonableness of regulations, which requires
courts to consider (1) whether there is a “rational
connection” between the regulation and a “legitimate and
neutral” government objective; (2) whether “alternative
means of exercising the right” remain available to inmates;
(3) “the impact accommodation of the asserted constitutional
right will have on guards and other inmates, and on the
allocation of prison resources;” and (4) whether “the
existence of obvious, easy alternatives” to the regulation
indicate that it “is an ‘exaggerated response’ to prison
concerns.” Id. (citation omitted).
For the reasons explained below, we conclude that the
evidence supports the district court’s conclusion that the
Turner factors favor the Sheriff, and that Butte County’s ban
on unsolicited commercial mail therefore does not violate
the First Amendment. The trial court faithfully adhered to
the Turner analysis in evaluating the record before it.
CRIME & JUSTICE AMERICA V. HONEA 9
A
Under Turner, the first question we ask is whether there
is a “‘valid, rational connection’ between the prison
regulation and the legitimate governmental interest put
forward to justify it.” Id. at 89 (quoting Block v. Rutherford,
468 U.S. 576, 586 (1984)). A policy “cannot be sustained
where the logical connection between the regulation and the
asserted goal is so remote as to render the policy arbitrary or
irrational.” Id. at 89–90. The government’s objective must
be “legitimate and neutral,” id. at 90, meaning it “must
further an important or substantial governmental interest
unrelated to the suppression of expression,” Thornburgh,
490 U.S. at 415. The first factor “is a sine qua non: ‘[I]f the
prison fails to show that the regulation is rationally related
to a legitimate penological objective, we do not consider the
other factors.’” Hrdlicka, 631 F.3d at 1051 (quoting Ashker
v. Cal. Dep’t of Corr., 350 F.3d 917, 922 (9th Cir. 2003)).
The Sheriff’s primary justification for the Butte County
Jail mail policy is that it promotes jail security by reducing
access to the type of paper that inmates are most likely to
misuse. Relatedly, he argues that the policy conserves staff
resources and prevents a flood of other unsolicited mail from
entering the jail. 1
CJ&A does not argue that jail security and conservation
of staff resources are not legitimate penological objectives;
it argues that there is no rational relationship between those
1
The Sheriff also argued at trial that distributing the magazine
would violate California advertising statutes, but the district court found
this justification “disingenuous in light of [CJ&A’s] persistent
willingness to rectify any such violations.” It declined to decide the
advertising issue, so we do not address it here.
10 CRIME & JUSTICE AMERICA V. HONEA
objectives and Butte County’s ban on unsolicited
commercial mail. 2 It also contends that upholding the policy
would contravene our jurisprudence regarding prisoners’
rights. CJ&A is mistaken for several reasons.
1
CJ&A argues that “[t]here is no obvious, intuitive
connection between banning delivery of unsolicited
publications, or [the] magazine, and promoting jail security.”
But even if the connection between the mail policy and jail
security is not immediately obvious, the Sheriff presented
evidence that made the connection clear.
The district court found that inmates in the Butte County
Jail use paper for a variety of “nefarious acts,” including
covering windows and lights, blocking air vents and
speakers, clogging toilets, passing notes, obstructing
security cameras, and hiding contraband. Covering
windows and lights makes it difficult for corrections officers
to perform required safety checks, and it allows inmates to
conceal their activities. Blocking speakers prevents
corrections officers and inmates from communicating with
each other. The dangers associated with inmates using paper
2
It also argues that the policy is not neutral. But where “prison
administrators draw distinctions between publications solely on the basis
of their potential implications for prison security, the regulations are
‘neutral’ in the technical sense in which [the Supreme Court] meant and
used that term in Turner.” Thornburgh, 490 U.S. at 415–16. Here, Butte
County distinguishes between solicited and unsolicited mail because
unsolicited mail is far more likely to be used to undermine institutional
security than solicited mail. Thus, the regulation is neutral in the Turner
sense.
CRIME & JUSTICE AMERICA V. HONEA 11
to obstruct security cameras and conceal contraband are self-
evident.
The district court also found that inmates are far more
likely to misuse paper with which they do not have a
personal connection, such as pages torn from phone books
or donated books, than paper that belongs to them, such as
legal mail, personal letters, and photographs. Thus, the ban
on unsolicited commercial mail is intended to limit inmates’
access to the type of paper they are most likely to use
improperly to compromise jail security.
2
CJ&A argues that because we reversed summary
judgment for the Sheriff in Hrdlicka, we cannot conclude
now that he has established a rational relationship between
the mail policy and jail security. But we did not hold that
the Sheriff could not possibly establish that there was a
rational relationship, only that on the record before us then,
“the degree to which allowing distribution of [the magazine]
in the jails would . . . affect jail security” was “unclear.”
Hrdlicka, 631 F.3d at 1052. Therefore, the Sheriff was not
entitled to judgment as a matter of law at that time. Id. at
1055. This holding did not preclude the Sheriff from
ultimately prevailing through supporting evidence adduced
at trial.
The district court carefully considered trial evidence that
was not before us in Hrdlicka. In Hrdlicka, Lieutenant
Bryan Flicker and Capt. Jones, both Butte County
corrections officers, only submitted declarations. At trial,
the district court heard live testimony from Lt. Flicker and
Capt. Jones, who provided more detailed information about
the jail’s supervision models and the security problems
posed by excess paper in the jail. Lt. Flicker explained that
12 CRIME & JUSTICE AMERICA V. HONEA
“remote surveillance, direct observation” and linear models
of supervision give corrections officials less control over
inmates’ behavior than other supervision models. Capt.
Jones explained how covering lights, windows, and speakers
creates security hazards. Lt. Flicker testified that from 2010
to 2014, “about 3,400 rule violations involving paper
products occurred,” and he estimated that “99.9” percent of
those violations involved generally available paper rather
than “personally owned papers.” This evidence establishes
that there is a rational relationship between banning
unsolicited commercial mail and jail security.
3
CJ&A asserts that upholding Butte County’s mail policy
“would be out of sync with the court’s most applicable
cases.” And it’s true that on several occasions, applying
Turner, we have struck down prison regulations limiting the
types of mail inmates could receive. The crucial distinction
is that in each of those cases, the defendants’ mail policies
were arbitrary or insufficiently related to the asserted
government interest.
In Prison Legal News v. Cook, inmates and the publisher
of a non-profit prison newsletter challenged an Oregon
policy that prohibited the delivery of standard-rate mail to
inmates, as it applied to “subscription non-profit
organization mail.” 238 F.3d 1145, 1146 (9th Cir. 2001)
(PLN I). State officials argued that the policy was intended
to prevent contraband from entering the jail, minimize fire
hazards, promote efficient cell searches, and improve prison
security. Id. at 1150–51. We held that none of these interests
justified “tying the receipt of subscription non-profit
newsletters to postal service rate classifications.” Id. at
1149–50.
CRIME & JUSTICE AMERICA V. HONEA 13
Later that year, we struck down a similar regulation “as
applied to pre-paid, for-profit, subscription publications.”
Morrison v. Hall, 261 F.3d 896, 898 (9th Cir. 2001). The
defendants in Morrison offered similar justifications for
their rule as the defendants in PLN I, and we rejected them
for similar reasons, holding that “prohibiting inmates from
receiving mail based on the postage rate at which the mail
was sent is an arbitrary means of achieving the goal of
volume control.” Id. at 902–04.
The regulation at issue in Morrison was deemed an
“exaggerated response” because it “fail[ed] to distinguish
between true ‘junk mail’ and subscriptions that have been
both paid for and solicited by the inmates.” Id. at 905. But
we noted that “prisons can and have adopted policies
permitting prisoners to receive for-profit, commercial
publications, while at the same time, prohibiting prisoners
from receiving unsolicited junk mail.” Id. (emphasis added).
In Prison Legal News v. Lehman, we struck down a
Washington regulation that prohibited receipt of “non-
subscription bulk mail and catalogs” that had been requested
by inmates. 397 F.3d 692, 695–96 (9th Cir. 2005) (PLN II).
We agreed with the district court that “the ban on non-
subscription bulk mail was not rationally related to a neutral
government objective.” Id. at 699, 701. And we emphasized
that we were not dealing with “a scenario in which a
publisher has attempted to flood a facility with publications
sent to all inmates, regardless of whether they requested the
publication.” Id. at 701.
In each of these cases, there was an insufficient
connection between the mail policy at issue and the asserted
justification for it. But the Butte County Jail’s ban on
unsolicited commercial mail is not an arbitrary form of
volume control; it is a rational response to the fact that its
14 CRIME & JUSTICE AMERICA V. HONEA
inmates consistently misuse unsolicited paper in ways that
threaten institutional security.
4
CJ&A also contends that because the Butte County Jail
already has rules governing paper in the jail, the ban on
unsolicited commercial mail is irrational. Inmates may not
keep more than a three-inch stack of non-legal paper in their
cells, and they are not permitted to leave paper in common
areas. Thus, CJ&A argues that its magazine could not
increase clutter in cells or common areas.
We have taken these sorts of rules into account before.
In Morrison, we stated that because the defendant prison
system already “limit[ed] the total amount of property in a
cell . . . permitting inmates to receive for-profit, subscription
publications could not possibly increase the total volume of
cell materials.” 261 F.3d at 902. We used similar logic to
reject justifications of mail restrictions in PLN I. See
238 F.3d at 1150–51.
However, in those cases, prison officials’ rationales for
limiting mail, such as reducing fire hazards and ensuring
efficient cell searches, had more to do with the amount of
paper in inmates’ cells than the type of paper. See id. The
fact that jail regulations already restricted the amount of
paper inmates could have made restrictions on the type of
mail unnecessary.
Here, however, the Sheriff’s justification—jail
security—is tied to the type of paper inmates have access to,
not the amount of it. Inmates are more likely to commit
security violations using paper with which they have no
personal connection. Thus, a policy that forbids delivery of
unsolicited commercial mail is rational, even if there are
CRIME & JUSTICE AMERICA V. HONEA 15
already limits on the amount of paper inmates can keep in
their cells.
Maintaining security in a jail is inarguably a legitimate
government interest. See Thornburgh, 490 U.S. at 415(“[P]rotecting prison security . . . is central to all other
corrections goals.” (internal quotation marks omitted)).
Because the Sheriff presented extensive evidence regarding
the security risks posed by paper, and the fact that generally
available paper is most likely to be misused, he established
that the ban on unsolicited commercial mail is rationally
connected to a legitimate government interest. Therefore,
the first Turner factor weighs in favor of the Sheriff.
B
The second Turner factor asks “whether there are
alternative means of exercising the right that remain open to
prison inmates.” 482 U.S. at 90. “Where other avenues
remain available for the exercise of the asserted right, courts
should be particularly conscious of the measure of judicial
deference owed to corrections officials . . . in gauging the
validity of the regulation.” Id. (internal citation and
quotation marks omitted). These alternatives “need not be
ideal, however; they need only be available.” Overton v.
Bazzetta, 539 U.S. 126, 135 (2003).
The district court considered two alternatives to
distributing hard copies of CJ&A’s magazine to ten percent
of Butte County inmates every week: the jail library and
electronic kiosks. Jail officials offered to make two copies
of the magazine available in the library, but the library can
only be accessed by request, and only by about twenty-five
inmates per day. Officials installed electronic kiosks
throughout the jail during the litigation, and they testified
that they could now load PDF versions of the magazine onto
16 CRIME & JUSTICE AMERICA V. HONEA
the kiosks. The district court found that the library alone was
inadequate, but the kiosks constituted an adequate
alternative.
The district court correctly found that the kiosks are an
adequate alternative. With the kiosks in place, there are
thirty-one locations throughout the jail where inmates could
access an electronic version of the magazine, plus two
portable kiosks. 3 This amounts to one kiosk for every
eighteen inmates. Although the kiosks do not guarantee the
same level of saturation as delivering fifty-five hard copies
of the magazine to the jail every week, they do provide a
meaningful way for CJ&A to offer its magazine to inmates.
Turner does not require that the “alternative avenue” provide
exactly the same level of communication as the plaintiff’s
preferred method, only that “other means of expression” be
available. See Thornburgh, 490 U.S. at 417–18. Thus, the
second Turner factor weighs in favor of the Sheriff. 4
C
The third Turner factor requires us to consider “the
impact accommodation of the asserted constitutional right
The magazine is not currently available on the kiosks, but at oral
3
argument, counsel for CJ&A admitted that this is because CJ&A has
chosen not to provide the jail with PDF versions of the magazine.
4
Our conclusion on this point also disposes of CJ&A’s argument
that the district court abused its discretion by denying injunctive relief.
CJ&A argues that the district court “based its denial of injunctive relief
on an erroneous legal conclusion,” namely that “the kiosks would
provide an adequate alternative to delivery of hard copies of the
magazine.” But we agree with the trial court and hold that on this record,
the kiosks are in fact an adequate alternative. The district court did not
abuse its discretion by denying injunctive relief.
CRIME & JUSTICE AMERICA V. HONEA 17
will have on guards and other inmates, and on the allocation
of prison resources generally.” 482 U.S. at 90. “When
accommodation of an asserted right will have a significant
‘ripple effect’ on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion
of corrections officials.” Id.The Sheriff argues that requiring the jail to distribute
hard copies of the magazine would burden prison resources
for two related reasons. First, “additional resources would
be necessary to monitor and clean the large quantity of paper
publications that would be added to the jail each week
following [the magazine’s] delivery.” 5 Second, allowing
distribution of CJ&A’s magazine could prompt other
commercial publications to seek distribution in the jail,
which would either require the jail to make content-based
decisions about what should be delivered, or create a
“significant increase in paper product problems.”
Regarding the Sheriff’s “slippery slope” argument, the
evidence does not establish that overturning Butte County’s
mail policy would result in a flood of unsolicited mail. The
5
Initially, the Sheriff also argued that “the increase in the time
required to process unsolicited unrequested commercial mail will drain
essential prison resources.” The district court granted summary
judgment for CJ&A on this point prior to trial, holding that the Sheriff
had “not provided this Court sufficient additional evidence” regarding
“the additional resources that would be required to distribute” the
magazine. CJ&A contends that this grant of partial summary judgment
should preclude the Sheriff from arguing that distributing its magazine
will affect prison resources. But the district court’s finding only
concerned the burden that initially processing magazines would have on
the jail. At trial, the Sheriff presented evidence that the magazine will
impose burdens on the jail’s staff even after it has been distributed,
because employees will have to clean up unwanted copies and monitor
inmate usage of thousands of additional pieces of paper each week.
18 CRIME & JUSTICE AMERICA V. HONEA
Sheriff presented no evidence that other publishers are likely
to request distribution in the jail. In fact, Lt. Flicker testified
that he was only aware of three instances in twenty-six years
in which someone had asked to distribute unsolicited mail.
Butte County’s ban on unsolicited commercial mail was not
put in writing until 2004. Thus, the virtual absence of
requests to distribute such mail more likely reflects a lack of
interest in reaching the jail’s population than a reaction to
the jail’s mail policy. We do “not accord defendants
deference on the basis of mere speculation,” and that is all
the Sheriff has offered on this point. See Cal. First
Amendment Coal., 299 F.3d at 884.
However, the Sheriff has established that distributing the
magazine itself would have a significant impact on the
allocation of jail resources. CJ&A wants to introduce almost
2,000 pages of unsolicited paper into the jail every week,
even as jail officials work to reduce the quantity of paper
available to inmates. The Sheriff’s evidence supports an
inference that if thousands of pages of unsolicited paper are
distributed in the jail every month, unsupervised inmates
will use at least some of those pages for “nefarious acts,”
which will force a jail staff that is already stretched thin to
respond to and remedy those violations.
In this situation, the court must be “particularly
deferential to the informed discretion of corrections
officials.” Turner, 482 U.S. at 90; see also O’Lone v. Estate
of Shabazz, 482 U.S. 342, 353 (1987) (“We take this
opportunity to reaffirm our refusal, even where claims are
made under the First Amendment, to substitute our judgment
on . . . difficult and sensitive matters of institutional
administration, for the determinations of those charged with
the formidable task of running a prison.”) (internal citation
CRIME & JUSTICE AMERICA V. HONEA 19
and quotation marks omitted). Therefore, the third Turner
factor favors the Sheriff.
D
The fourth and final Turner factor asks “whether the
existence of easy and obvious alternatives indicates that the
regulation is an exaggerated response by prison officials.”
Hrdlicka, 631 F.3d at 1054 (quoting PLN II, 397 F.3d at
699). However, “[t]his is not a ‘least restrictive alternative’
test: prison officials do not have to set up and then shoot
down every conceivable alternative method of
accommodating the claimant’s constitutional complaint.”
Turner, 482 U.S. at 90–91.
CJ&A argues that because its magazine is widely
distributed at other jails, Butte County’s ban on unsolicited
commercial mail must be an “exaggerated response” to the
problems posed by paper in the jail. It is true that “the
policies followed at other well-run institutions [are] relevant
to a determination of the need for a particular type of
restriction.” Morrison, 261 F.3d at 905 (quoting Martinez,
416 U.S. at 414 n.14, rev’d on other grounds, Thornburgh,
490 U.S. at 413). However, not all jails are the same, and
the district court found that Butte County uses supervision
models that provide far less direct supervision than models
employed in some other counties, such as Los Angeles
County. 6 Therefore, distribution of unsolicited paper may
6
CJ&A relies heavily on the testimony of Richard Lichten, a retired
lieutenant from the Los Angeles County Sheriff’s Department. Lt.
Lichten worked in corrections for over thirty years and testified that he
did not know of any instances in which an inmate used CJ&A’s magazine
for a “malicious purpose.” But Los Angeles County employs a “direct
supervision” model, which gives corrections officers “a lot more control
over the inmates” than the supervision models used in Butte County.
20 CRIME & JUSTICE AMERICA V. HONEA
cause more problems in the Butte County Jail than in other
jails.
The jail’s installation of electronic kiosks also indicates
that the mail policy is not an exaggerated response. Lt.
Flicker testified that the kiosks were installed to “eliminate
as much paper as [possible] in the housing units,” because
inmates commit so many rule violations with paper. The
kiosks are not just designed for reading material; jail
officials are trying to eliminate from housing units hard
copies of inmate request forms, property release forms, sick
slips, grievance forms, and the jail handbook. This confirms
that paper has created serious problems at the Butte County
Jail, and the jail’s mail policy is not an exaggerated response
to those problems.
Because each of the Turner factors favors the Sheriff, we
agree with the district court’s determination and hold that
Butte County’s ban on inmates’ receipt of unsolicited
commercial mail is reasonably related to a legitimate
penological objective and therefore does not violate the First
Amendment.
IV
Captions in the final pages of its opening brief indicate
that CJ&A appeals the district court’s post-trial admission of
the Jones declaration, and its denial of CJ&A’s motion for
relief from judgment and motion to re-open discovery. But
“[a] caption is not an argument.” Affordable Housing Dev.
Corp. v. City of San Francisco, 433 F.3d 1182, 1192 (9th
Thus, Lt. Lichten’s testimony about his experience in Los Angeles
hardly establishes that Butte County’s commercial-mail policy is an
exaggerated response to the problems it faces in its own, much smaller
jail.
CRIME & JUSTICE AMERICA V. HONEA 21
Cir. 2006). An appellant’s brief must contain the
“appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which
the appellant relies.” Fed. R. App. P. 28(a)(8)(A). “Issues
raised in a brief which are not supported by argument are
deemed abandoned.” Leer v. Murphy, 844 F.2d 628, 634
(9th Cir. 1988).
CJ&A does not explain anywhere in its opening or reply
brief why it objected to the admission of the Jones
declaration or why it was an abuse of discretion for the
district court to accept it.
As for the denial of relief from judgment and motion to
re-open discovery, CJ&A’s opening brief does little more
than state the standard of review and the relevant Rules of
Civil Procedure. It references “newly discovered evidence
concerning kiosks,” but it does not explain what new
evidence it could have uncovered about the kiosks, or why it
was error for the district court to deny its motion. Its reply
brief does not clarify the matter.
Therefore, we hold that CJ&A has abandoned its
arguments related to the post-trial admission of the Jones
declaration and its appeal of the district court’s denial of its
motion for relief from judgment and motion to re-open
discovery.
Costs are awarded to the Appellee.
The district court’s judgment following trial on the
merits is AFFIRMED.