UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Human Rights Defense Center

v. Civil No. 22-cv-091-LM Opinion No.

P Board of County Commissioners for Strafford County, New Hampshire, et al.

ORDER

The case concerns the Strafford County House of Corrections’s decision to ban

all incoming inmate mail, including books and other publications, for security

reasons. Plaintiff, the Human Rights Defense Center (“HRDC”), sues the

defendants, the Board of County Commissioners for Strafford County, New

Hampshire, County Administrator Raymond F. Bower (individually and in his

official capacity), Superintendent Christopher Brackett (individually and in his

official capacity), and John and Jane Does 1-10, staff of the Strafford County House

of Corrections (individually and in their official capacities) under the First and

Fourteenth Amendments.1 Currently before the court is plaintiff’s request for a

preliminary injunction (doc. no. 3) to require the Jail to permit HRDC to send (via

the U.S. mail) its paperbound books and periodicals to inmates housed at the Jail,

and in the event the Jail rejects any of its mailings, to provide proper notice and

opportunity to be heard.

1 For simplicity the court refers to the defendants and the facility collectively

as “the Jail.” At first blush, the Jail’s complete ban on all incoming (non-legal) paper mail

appears constitutionally problematic. The ban prevents HRDC from sending

(through “snail-mail”) hard-copies of its books and periodicals to inmates, something

HRDC has been doing for over 30 years. However, the Jail makes HRDC’s books

and periodicals accessible to prisoners in hardcopy in the Jail’s library.

Additionally, HRDC offers to place digital copies of HRDC’s books and periodicals

on the electronic tablets the Jail provides to all its inmates.

On October 17, 2022, the court held an evidentiary hearing on HRDC’s

motion. HRDC did not present any witnesses and rested on the record.

Defendants presented one witness during the hearing: Superintendent Brackett.

The court found Brackett’s testimony credible in every respect. For the reasons

explained below, HRDC has not shown that it is entitled to a preliminary injunction

on either of its constitutional claims.

BACKGROUND

I. The Jail’s Mail Policies

In 2017, the Jail grew increasingly concerned about the security risk posed by

incoming inmate mail. In particular, the Jail was struggling to prevent the

introduction of illegal narcotics through paper that had been soaked, sprayed, or

otherwise treated with illicit substances before being mailed to prisoners. The Jail

discovered narcotics on ordinary letter paper, in greeting cards, and in books mailed

to prisoners from individuals in the community. Narcotics introduction posed a risk

to the health, safety, and security of the Jail’s prisoners and staff.

2 It had been the Jail’s practice to inspect incoming mail visually, but methods

for disguising narcotic-treated paper had grown increasingly sophisticated and

visual inspection often failed. The Jail explored alternatives, but none met its

needs. As one example, it considered investing in an expensive machine to scan

incoming mail for narcotics, but the machine could not detect fentanyl, which was

the Jail’s largest concern. The Jail thus opted to continue with visual inspection.

On June 6, 2017, the Jail’s concerns peaked when five inmates overdosed.

Three of them required hospitalization. An investigation by the Strafford County

Sheriff’s Department revealed that all five prisoners likely ingested portions of the

same piece of paper mailed to a prisoner from the outside that contained an

unidentified illicit substance.

In response to the overdoses and the broader issue of narcotic introduction,

the Jail enacted (on or about June 12, 2017) a policy which banned all “incoming

personal inmate mail.” Doc. no. 3. The purpose behind the policy was to prevent

overdoses and other drug use in the facility. The Jail also sought to protect

members of its staff, who risked exposure to substances introduced through the

mail, carried the emotional burden of responding to tragic overdoses, and faced

added challenges of managing impaired prisoners.

The ban initially applied only to incoming personal paper mail. The ban did

not apply to incoming legal mail, nor did it restrict the ability of prisoners to send

outgoing mail. The Jail continued to accept books and periodicals mailed directly

from publishers or retailers. By July 2020, however, the Jail extended the ban to

3 include all incoming (non-legal) mail, including that directly from a publisher, like

HRDC.

Brackett testified that the Jail adopted the 2020 publisher ban because of

concerns that narcotics could be introduced through materials sent by publishers

and warehouses. He conceded that the concern was hypothetical, as he was not

aware of a contaminated book coming directly into the Jail from a publisher. He

referenced incidents where inmates received contraband through the spine of a book

or in a newspaper, but readily admitted that the materials did not come from

publishers.

A. Tablets

According to Brackett, the Jail did not enact either the ban on paper mail or

the ban on materials from publishers until the Jail ensured it could provide, in its

view, suitable alternative means for prisoners to correspond with the public and

access reading materials. The solution came in the form of electronic tablets.

Starting in June 2017, the Jail began providing each prisoner (with the exception of

those held in maximum security and in the medical unit) a tablet free of charge.

Prisoners can use the tablets to communicate with people outside the prison by

sending and receiving electronic messages, pictures, and videos, and making phone

and video calls. It costs $0.25 to send each electronic message, regardless of

whether the message is incoming or outgoing. The messages have a character limit,

but Brackett testified that it is rarely reached. Senders can also attach a video clip

to messages, which can last up to 29 seconds.

4 For individuals in maximum security or the medical unit who do not have

access to tablets, the Jail prints out electronic messages sent to them through the

messaging platform. All prisoners are still permitted to send outgoing mail, so

these prisoners can reply to the electronic messages via written letter. Stamps are

provided to those who cannot afford them.

Prisoners can also access reading materials through the tablets. As of the

date of the hearing, the tablets offered access to nearly 6,000 books and 2,000

magazines. Because certain books are not available in digital format, the Jail

maintains a small library of paper books that prisoners can request to borrow.

Prisoners can request books by writing to the programs department and sign books

out in a manner like any other library. Prisoners can keep the borrowed books in

their cells. Brackett testified that—since there is no avenue for prisoners to

purchase books or periodicals for their own personal use—he is willing to purchase

additional books for the library that are not accessible on the tablets.

The tablets also provide access to LexisNexis (a legal research platform) and

to educational programs through which prisoners can earn certificates. Finally,

prisoners can use the tablets to make requests and complaints. Prisoners can send

messages internally to shift supervisors, the classification department, and the

Superintendent himself, and externally to entities such as the American Civil

Liberties Union.

Brackett testified that he believes the benefits of the tablet system far

outweigh the drawbacks. In his view, prisoners can now connect more easily and

5 frequently with members of the community. Further, they have access to more

reading materials and educational resources. Brackett testified that, since the ban,

there has been a decrease in positive drug tests at the Jail. He also testified that

the tablet system has been well received by the prisoners.

B. Notice of the Policy

When the Jail enacted the initial policy in 2017, it notified prisoners through

a message on the tablets.2 HRDC concedes it became aware of the restrictive policy

in 2017 when inmates began contacting it about the policy. Doc. no. 3-2 ¶ 19; doc.

no. 42 ¶ 5. With respect to members of the public, the Jail posted a notice on its

website stating “[a]fter careful consideration, the Department of Corrections will no

longer accept incoming personal inmate mail.” Doc. no. 3-2 ¶ 18. The notice also

stated: “This change in policy is effective immediately and has been implemented to

increase the safety and security of all inmates and staff at this facility. You can still

correspond with those incarcerated via electronic messaging (email). You can learn

more about this service at: www.connectnetwork.com.” Id.3 The Jail returned to

the sender all disallowed mailings and included in the return mailing a letter

explaining the policy. Eventually, the Jail started sending the correspondence back

via USPS’s “return to sender” service without explanation.

2 Brackett’s July 2019 affidavit stated that prisoners were notified and given

the opportunity to file a grievance any time a piece of personal mail or periodical is rejected. It is not clear if that is still the policy today.

3HRDC had actual notice of this posting as of May 17, 2018. Doc. no. 3-2 ¶ 18 (“HRDC staff accessed the Jail’s website on May 17, 2018 and documented the notice.”).

6 When the Jail extended the ban to include material from publishers in 2020,

it posted a notice on its website at some point before July 2020.4 The notice states:

We no longer accept donated books. Items may not be mailed in to the facility; inmates may access reading materials through the tablet system. Items mailed to the facility will be returned to sender.

Doc. no. 3-1 at 6. The Jail did not send out a letter explaining the policy to

publishers whose mailings had been rejected. Instead, the Jail sent the prohibited

materials back to the publisher via USPS’s “return to sender” service. Although

HRDC concedes the 2020 policy was posted on the Jail’s website by July 2020, the

record is not clear as to whether HRDC had actual notice of this 2020 policy.

II. Impact of 2020 Policy on HRDC

HRDC is a non-profit organization dedicated to educating incarcerated

individuals and the public about the legal and civil rights of incarcerated people.

HRDC furthers its mission through litigation, public education, and the distribution

of materials about prisons and prisoners’ rights. In service of that mission, it

produces and distributes two monthly publications: Prison Legal News and

Criminal Legal News. Prison Legal News is a soft-cover magazine that provides

timely news and developments about the rights of incarcerated persons, prison

conditions, and other related topics. Criminal Legal News is a magazine providing

updates on criminal justice-related issues broadly, including court rulings. HRDC

4The exact date is unknown. The parties agree that the notice was on the website in July 2020.

7 also distributes paperback publications covering similar topics, some of which it

self-publishes. For example, HRDC self-publishes The Habeas Citebook: Ineffective

Assistance of Counsel and Prisoners’ Guerilla Handbook: A Guide to

Correspondence Programs in the United States and Canada. HRDC has distributed

over one million copies of Prison Legal News since 1990, and Prison Legal News

currently has thousands of subscribers in the United States and abroad. HRDC

also mails informational brochure packets that explain HRDC’s mission, the

different publications it offers, and includes a form through which prisoners may

place an order. HRDC addresses all of the above referenced mailings to specific

individuals and sends them using the United States Postal Service with postage

fully paid.

Since its founding, HRDC has distributed its publications in more than 3,000

correctional facilities across the United States, including the Strafford County

Department of Corrections. HRDC contends that communicating with prisoners via

paper correspondence—through its monthly periodicals in particular—is essential,

and “delays in delivery sap the magazines of their news value.” Doc. no. 3-2 ¶ 6.

In November 2020, HRDC attempted to mail a selection of its publications

(books and periodicals) to five prisoners in the Jail. It also gave each prisoner a free

nine-month subscription to Prison Legal News and six-month subscription to

Criminal Legal News. HRDC separately addressed and mailed each item. All ten

of the books sent (in this case, five copies of Protecting Your Health and Safety and

five copies of Prisoner’s Guerilla Handbook) were returned to HRDC through

8 USPS’s “return to sender” service. This is consistent with the notification the Jail

placed on its website explaining the policy. None of the other materials sent in this

batch of mailings (including five copies of Prison Legal News, five copies of Criminal

Legal News, five copies of a court ruling, and five copies of an informational

brochure) was returned to HRDC. HRDC sent four of the prisoners a follow-up

letter; one prisoner responded stating that he did not receive any of the materials it

mailed him.

Since this November 2020 mailing, HRDC continues to send monthly issues

of its magazines and subscription-related correspondence to each prisoner still in

the Jail to whom it had given free subscriptions. In June 2021, a prisoner reached

out to HRDC to complain that he had not received his magazine subscription.

According to the prisoner’s grievance form, a copy of which he attached to his letter

to HRDC, the magazine was rejected because the “official policy states no

newspapers, magazines, or outside mail.” Doc. no. 3-2 ¶ 27. (emphasis removed).

While it is clear that HRDC had actual notice of the policy in effect as of

2017, it is likely that that HRDC also had actual notice of the broader 2020 ban.

HRDC does not dispute that the Jail publicized the 2020 policy on its website. And,

Paul Wright, HRDC’s Executive Director, admits that HRDC staff checked the Jail’s

website—which is how HRDC saw the Jail’s posting of the 2017 policy. Doc. no. 3-2

¶ 18. Mr. Wright describes himself as having “substantial expertise regarding the

mail and correspondence policies of correctional facilities across the country” and

having “carefully monitored all instances” in which a jail refuses to deliver HRDC

9 mail. Id. ¶ 15. Wright states he has “first-hand knowledge” about how HRDC mail

is received and processed, including when the USPS uses “return to sender.” Id.

Certainly after its November 2020 mailing, HRDC had notice that the Jail

was not permitting its books into the facility. And, after hearing from a prisoner in

June 2021, HRDC knew that no other publication was allowed.5 HRDC continued,

however, to send its publications to the Jail. Although HRDC indicates its staff at

times telephoned the Jail, the only question HRDC apparently asked the Jail on

those calls was whether a particular inmate was still incarcerated. Doc. no. 3-2

¶ 32. HRDC does not indicate that it made any inquiry relative to the policy or

available alternatives.

III. The Lawsuit

The lack of any inquiry from HRDC is consistent with Brackett’s testimony

that he first learned about HRDC’s dissatisfaction with the policy when he was

served with the complaint initiating the lawsuit. Since becoming aware of HRDC’s

dissatisfaction, Brackett has made attempts to remedy the situation. First,

Brackett purchased hard copies of HRDC’s books and two-year subscriptions to both

Prison Legal News and Criminal Legal News and made these available in the

library. He sent all prisoners a tablet notification about the availability of the

5In total, since 2017, HRDC can identify at least 39 mailings that were rejected

by the Jail, including books, magazines, and promotional brochures. According to HRDC, “most” of the rejected mailings were returned to HRDC via USPS’s “return to sender” service without explanation or an opportunity to appeal. Doc. no. 3-1 at 9.

10 HRDC publications. Second, he has offered to make electronic versions of Prison

Legal News, Criminal Legal News, and HRDC’s books available on the prisoners’

tablets. The undisputed evidence (library withdrawal records in addition to

Brackett’s testimony) showed that the library’s current inventory is sufficient to

meet the prisoners’ demand for HRDC materials. But, in the event demand for

those books were to increase, Brackett testified that he would purchase more copies.

At the time of the hearing, the Jail had not yet received the periodicals it had

ordered, but Brackett stated that he would notify prisoners via the tablet system of

their availability upon their arrival each month.

HRDC maintains that the Jail’s alternatives are insufficient. HRDC states

that its books are not available in digital form, and although it concedes that

digitizing its periodicals is possible, it asserts that it is not currently financially

feasible.6

DISCUSSION

HRDC moves for a preliminary injunction against the Jail enjoining it from

(1) violating HRDC’s First Amendment rights by the “improper censorship” of

HRDC’s publications and correspondence and (2) violating HRDC’s Fourteenth

Amendment rights by failing “to provide notice or any opportunity to appeal

rejections of HRDC’s mailings.” Doc. no. 3. The Jail objects, asserting that its mail

policy passes First and Fourteenth Amendment muster.

6HRDC’s counsel raised this financial hardship argument at the hearing but

provided no evidence (neither data nor any analysis) to support the assertion.

11 I. Preliminary Injunction Standard

“A preliminary injunction is an extraordinary and drastic remedy that is

never awarded as of right.” Peoples Fed. Sav. Bank v. People’s United Bank,

(1st Cir. 2012). To obtain a preliminary injunction, a plaintiff must

establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer

irreparable harm in the absence of a preliminary injunction, (3) the balance of

hardships tips in the plaintiff's favor, and (4) public interest favors an injunction.

Winter v. Nat. Res. Def. Council, Inc.,

(2008).

II. First Amendment Claim

A. Likelihood of Success

The First Amendment provides that the government “shall make no law . . .

abridging the freedom of speech.” U.S. Const. amend. I. This freedom extends to

the right to distribute and receive literature. Martin v. City of Struthers,

(1943). Because “[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution,” Turner v. Safley,

(1987), prisoners and their correspondents, including publishers, enjoy the

protections of the First Amendment to the extent those protections “are not

inconsistent with . . . the legitimate penological objectives of the corrections

system.” Pell v. Procunier,

(1974). Thus, a prison regulation that

12 impinges on a constitutionally protected right, such as the right to free speech, must

be “reasonably related to legitimate penological interests.”7 Turner,

.

Courts determine the validity of prison regulations using the so-called Turner

factors: (1) whether there is “a valid, rational connection” between the regulation

and the legitimate penological interest justifying it; (2) “whether there are

alternative means of exercising” the impacted right; (3) what, if any, impact

accommodating the right would have on other prisoners, staff, and resources

generally; and (4) whether there are “ready alternatives” to the challenged

regulation.

.

In weighing these factors, courts must grant significant deference to prison

administrators’ professional judgment, as they “bear a significant responsibility for

defining the legitimate goals of a corrections system and for determining the most

appropriate means to accomplish them.” Overton v. Bazzetta,

(2003). The burden is ultimately on the plaintiff to show the regulation is

unreasonable.

7 Governmental regulations infringing on free speech are typically subject to a

higher level of scrutiny. See Ashcroft v. ACLU,

(2002); United States v. O’Brien,

(1968). But, because the judiciary does not possess expertise in prison administration (that responsibility is delegated to the executive and legislative branches), the Supreme Court has held that constitutional challenges to prison regulations must be subject to a reduced level of scrutiny. Turner,

. The deferential test formulated in Turner was designed to be “responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’”

(quoting Procunier v. Martinez,

(1974), overruled on other grounds by Thornburgh v. Abbott,

(1989)).

13 1. Rational Relationship

The first Turner factor asks whether there is a “valid, rational connection”

between the challenged policy and the legitimate penological interest justifying it.

. Courts have routinely found that maintaining prison security,

deterring drug use within prisons, and providing incentives for good behavior are

legitimate penological interests. See

; Overton,

; Beard v.

Banks,

(2006). Prison security in particular is “central to all

other corrections goals.” Thornburgh,

(quoting Pell,

). To be legitimate, a regulation should be applied in “a neutral fashion, without

regard to the content of the expression.” Turner,

.

For the relationship between the regulation and its stated purpose to be

reasonable, the logical connection cannot be “so remote as to render the policy

arbitrary or irrational.”

. Because of the significant deference granted

to corrections officials, an official’s professional judgment, without additional

evidence corroborating it, satisfies the defendant’s burden at this stage so long as

the official’s proffered justifications for the regulation are “logical.” See Kuperman

v. Wrenn,

(1st. Cir. 2011) (noting that requiring defendants to

“produce studies or independent expert testimony . . . overstates their burden” and

that “courts do not require an actual breach of security before upholding a

regulation designed to prevent it”); Josselyn v. Dennehy,

(1st Cir. 2009) (explaining that courts need not make “factual findings that the

regulation will, in fact, serve its intended purpose”). The plaintiff must offer

14 evidence refuting the legitimacy of logical justifications offered by the defendant.

Kuperman,

.

2. Alternative Means to Exercise the Right

The second Turner factor considers whether the institution provides

prisoners with alternate ways to exercise the infringed-upon right. These

alternative means of exercising the right must be “available” to the prisoner, but

they need not be “ideal.” Overton,

. For example, when a prison

regulation limits a form of communication, the prison need not offer an identical

alternative; it instead must offer other means of communication generally, such

that the regulation does not result in a ban on expression altogether. See Turner,

(upholding ban on inmate-to-inmate written correspondence because

ban only applied to “a limited class of other people with whom prison officials [had]

particular cause to be concerned” and did not “deprive prisoners of all means of

expression”).

The Supreme Court has acknowledged on multiple occasions that a “de facto

permanent ban” on inmates’ ability to communicate would create serious

constitutional concerns. Human Rts. Def. Ctr. v. Baxter Cnty. Ark.,

,

1166 (8th Cir. 2021) (citing Beard,

and Overton,

).

The Court has not, however, addressed how a limitation on communication with

15 prisoners may infringe upon the independent First Amendment rights of

publishers.8 See Baxter Cnty., 999 F.3d at 1165.

3. Impact of Accommodation

The third Turner factor examines the impact that possible accommodations

would have on other prisoners, staff, and prison resources generally.

.

When the alternative means to exercising the right will cause a significant “ripple

effect” on prison staff and other inmates, courts should be especially deferential to

the judgment of prison administrators.

For example, if the right in question

“‘can be exercised only at the cost of significantly less liberty and safety for everyone

else, guards and other prisoners alike’ . . . the courts should defer to the ‘informed

discretion of corrections officials.’” Thornburgh,

(quoting Turner,

).

4. Ready Alternatives

The final Turner factor asks whether there are “ready alternatives” to the

policy at issue.

. If “obvious, easy alternatives” to the policy exist,

8 Although the Supreme Court has not examined a regulation that bans publishers from mailing materials to prisoners, courts have repeatedly upheld “publishers-only” rules, which ban everyone but publishers from mailing books and periodicals to prisoners. Courts have upheld such bans on the grounds that they reduce contraband introduction without depriving prisoners access to reading materials altogether. See, e.g., Bell v. Wolfish,

(1979); Kines v. Day,

(1st Cir. 1985); see also Stow v. Warden, No. 93-1869,

,

(1st Cir. Mar. 31, 1994) (unpublished table decision); Avery v. Powell,

, 8–9 (D.N.H. 1992).

16 that may indicate it is an “exaggerated response” to a prison’s penological concern.

. But, this inquiry is not a “least restrictive alternative” test—for a policy

to be upheld, “prison officials do not have to set up and then shoot down every

conceivable alternative method of accommodating the claimant's constitutional

complaint.”

Instead, if prison officials “rejected a less restrictive alternative

because of reasonably founded fears that it will lead to greater harm” a regulation is

not an “exaggerated response.” Thornburgh,

. The existence of an

“alternative that fully accommodates the [plaintiff's] rights [at] a de minimis cost to

valid penological interests” can refute the existence of a reasonable relationship.

Turner, 482 U.S. at 90–91.

HRDC has not shown a likelihood of success on the First Amendment claim.

Under all four prongs of the Turner test, the Jail’s actions survive constitutional

scrutiny.

First, with respect to the existence of a rational relationship between the

policy and penological interest justifying it, the court finds a sufficient logical

connection. As an initial matter, the penological purposes behind the Jail’s policy

are legitimate. The concerns articulated by Superintendent Brackett—security,

safety, and preventing illicit drug use—are legitimate penological interests under

Turner. See Thornburgh,

(noting that prison security in particular

is “central to all other corrections goals”); Larkin v. Strafford Cnty. Dep’t of Corr.,

Superintendent, No. 19-cv-102-LM,

, at *8 (D.N.H. Jan. 13, 2020)

17 (finding that “restricting inmate access to opioids like Suboxone and fentanyl in

particular are legitimate penological interests”).

Additionally, the relationship between those legitimate penological interests

and the policy at issue is reasonable. Although the Jail’s concern about publisher

materials containing contraband was hypothetical in nature, the possibility that

such a thing could happen makes logical sense. See Kuperman,

(noting that defendants meet their burden under the first prong if their proffered

justification for a prison policy is “logical”). Turner does not require the Jail to

prove prior instances of narcotics introduction through HRDC or other publishers

before enacting a policy to preempt such an eventuality. See

(explaining that

“courts do not require an actual breach of security before upholding a regulation

designed to prevent it”). And there was nothing hypothetical about the concerns

that contraband (a) had entered the Jail through books and paper materials mailed

to inmates, and (b) had caused significant harm to inmates and disruption to jail

security. See Josselyn,

(noting courts need not make

“factual findings that the regulation will, in fact, serve its intended purpose”).

To find the Jail has not met its burden here would require the court to

second-guess the Jail’s policy decisions and the strategies it has developed to cope

with this novel method of introducing drugs into the Jail. See Overton,

(noting the court must accord “substantial deference to the professional

judgment of prison administrators, who bear a significant responsibility for defining

the legitimate goals of a corrections system and for determining the most

18 appropriate means to accomplish them”). After weighing the evidence and affording

deference to the Jail, the court finds this first prong of Turner is satisfied.

The Jail’s policy becomes more reasonable when assessing the second Turner

factor: whether the Jail provides alternative methods of distributing HRDC’s

publications to the inmates. The Jail has offered compelling alternatives. First, the

Jail has purchased hard copies of HRDC books and two-year subscriptions to its

periodicals for its library, which—as of the date of the hearing—has been sufficient

to meet prisoners’ needs. Second, the Jail has offered to make HRDC’s periodicals

and books available on each prisoner’s electronic tablet. The Jail has more than

satisfied this second prong. See Crime Justice & America v. Honea,

(9th Cir. 2017) (finding Turner satisfied where jail provided hard copies of

publisher’s magazine in its library and made a digital copy available on its 31

electronic kiosks—1 kiosk for every 18 inmates); Human Rts. Def. Ctr. v. Henderson

Cnty., 20-CW-159,

, at *8 (W.D. Ky. Oct. 25, 2022) (finding

Turner satisfied where jail provided hard copies and electronic access to HRDC’s

publications). For these reasons, the court finds the second Turner factor weighs in

favor of the Jail.

The third and fourth Turner factors (the impact of accommodating HRDC’s

right and the existence of ready alternatives) also weigh in the Jail’s favor. Before

instituting a ban on any incoming mail, the Jail tried less restrictive alternatives,

such as an expensive scanning machine that failed to detect fentanyl—a drug whose

entry the Jail is trying to prevent. Turner,

(noting that the absence

19 of easy, obvious alternatives indicates the policy is not an “exaggerated response” to

the issue). The Jail would need to employ its staff to conduct visual scans on all

incoming mail from a publisher. See Prison Legal News v. Sec’y, Fla. Dep’t of Corr.,

(11th Cir. 2018) (finding unduly burdensome alternative which

would require jail to “allocate more time, money, and personnel in an attempt to

detect and prevent security problems engendered by . . . the magazines”). The Jail

has concluded that this is neither as effective nor as safe as allowing inmates access

to reading material via their tablets. Since 2017, the Jail has elected to use a tablet

system to communicate with its inmates. The evidence is undisputed that this

system has provided a solution to the problems the Jail was experiencing with

inmate mail. And, the tablet system permits all inmates at the Jail unlimited

digital access to HRDC publications.9

In sum, HRDC has not shown a likelihood of success on its First Amendment

claim. When a plaintiff cannot establish a likelihood of success on the merits, the

court need not address the remaining three preliminary injunction factors. LeBeau

v. Spirito,

(1st Cir. 1983).

The court now moves to HRDC’s Fourteenth Amendment claim.

9 HRDC filed this lawsuit without first discussing alternatives with Brackett.

As such, HRDC claimed that “[w]ithout the ability to mail prisoners these items, HRDC has no way to exercise its right to communicate with incarcerated persons in the Jail.” Doc. no. 3-1 at 9. The option of placing digital copies of HRDC publications on each inmate’s tablet gives HRDC the opportunity to communicate with more inmates than the method it seeks in this lawsuit.

20 III. Fourteenth Amendment Claim

A. Likelihood of Success

The Fourteenth Amendment provides that states shall not “deprive any

person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. To establish a due process violation, the plaintiff must first show a

deprivation of a protected interest in life, liberty, or property. The Supreme Court

has recognized that publishers have a constitutional right to communicate with

prisoners to the extent that it does not interfere with a prison’s legitimate

penological interests. See Thornburgh,

. After showing a

deprivation of a protected interest, a plaintiff must then show that the interest was

deprived without constitutionally adequate process. Zinermon v. Burch,

, 125–26 (1990).

HRDC argues that the Jail violated its procedural due process rights by not

affording adequate notice and opportunity to be heard before rejecting its

publications. See Martinez,

. The parties do not dispute that

publishers like HRDC have a protected interest in communicating with prisoners,

nor do they dispute that some amount of process is due when there is a deprivation

of a protected interest. Thus, the question the court must resolve is what level of

process HRDC is owed and whether the Jail provides it.

Because the policy at issue here is based on “simple and clearcut criteria”

that apply across-the-board to all incoming publications, the court evaluates the

sufficiency of the process under Mathews v. Eldridge,

(1976). See

21 Starr v. Knierman,

(1st Cir. 2012); see also Baxter Cnty.

Ark., 999 F.3d at 1167 (applying Mathews rather than Procunier v. Martinez to

neutral jail policy regarding incoming mail); Henderson Cnty.,

,

at *13 (same).

Under Mathews, courts consider three factors:

(1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

. Then, based on the outcome of the balancing test, the court either

finds that the existing safeguards sufficient or requires additional safeguards to

bring the process in conformity with the Fifth and Fourteenth Amendments.

.

The first prong of the test is easily met: HRDC has a private interest in

communicating with prisoners “to spread its message and try to disseminate more

of its publications.” Henderson Cnty.,

, at *14 (internal

quotations omitted). This principle is well established. See, e.g., Perry v. Sec’y, Fla.

Dep’t of Corr.,

(11th Cir. 2011); Montcalm Pub. Corp. v. Beck,

, 109 (4th Cir. 1996).

The next consideration is the “risk of erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or

substitute procedural safeguards.” Mathews,

. Under the policy

22 currently in effect, when the Jail receives mail from HRDC, the Jail’s policy is to

return the mail via the USPS “return to sender” service. There is no risk of

“erroneous deprivation” of an interest through that procedure since the ban applies

across-the-board for all incoming publications. Further, additional procedural

safeguards would be of no value to HRDC, which is already aware that its mailings

will be rejected and why. “[D]ue process does not require copy-by-copy notice if later

denials of identical publications amount to the routine enforcement of a rule with

general applicability.” Baxter, 999 F.3d at 1167. Thus, the court finds that with

respect to HRDC specifically, the Jail’s policy is sufficient under the second

Mathews factor.

The third Mathews factor considers whether “the Government’s interest,

including the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.” Mathews,

. The government’s interest here is compelling. The Jail’s current policy is

designed to enhance and maintain prison security and reduce drug use within the

jail. The jail designed the policy to be cost-effective and efficient as well. Requiring

the Jail to institute a formal appeal process would be unduly burdensome and, in

light of the nature of the Jail’s across-the-board policy, would not serve any purpose.

Cf. Prison Legal News v. Livingston,

(5th Cir. 2012) (“Such

subsequent denials are non-individualized—they neither reconsider the content of

the denied book nor depend on the particular sender or addressee—so it is not even

23 clear that due process is implicated by such decisions.”). This factor also weighs in

favor of the Jail.

In short, HRDC has not shown that the existing procedures fail to protect its

liberty interest, or that “the additional essentially duplicative notice and appeal

procedures [it] seeks would improve the prison’s decisionmaking process, such that

imposing costs on the state to provide such procedures would be warranted.” Starr,

. The Fifth Circuit would go further, as it explained in a

similar context:

Due process pertains to the right to participate in government decision making. The “notice” required by due process is notice of when, where, and how one can be heard before a decision becomes final. . . . The right to receive notice exists only to effectuate the right to be heard, and therefore is inapplicable where a party has no right to participate in the decision-making process.

Livingston,

. The Fifth Circuit held in Livingston that “[g]iving

notice to a sender that his communication has been rejected may be a reasonable

courtesy, but such notice is not a requirement of due process.”

Based on the totality of circumstances, the court finds that HRDC has not

met its burden of showing a likelihood of success on the merits of its due process

claim.10

10Only the policy currently in effect (the 2020 ban) is relevant to the preliminary injunction.

24 B. Irreparable Harm

Even if HRDC could satisfy the likelihood of success prong, it could not show

any irreparable harm from the denial of its procedural rights. Irreparable harm is a

“necessary threshold showing for awarding preliminary injunctive relief.” Matos ex

rel. Matos v. Clinton School Dist.,

(1st Cir. 2004). The plaintiff

must show that absent a court injunction, it is “likely to suffer irreparable harm

before a decision on the merits can be rendered.” Voice of the Arab World, Inc. v.

MDTV Med. News Now, Inc.,

(1st Cir. 2011).

An alleged denial of procedural due process rights does not automatically

trigger a finding of irreparable harm. Pub. Serv. Co. of New Hampshire v. Town of

W. Newbury,

(1st Cir. 1987). To prove irreparable harm, “a plaintiff

must show that it has experienced ‘a substantial injury that is not accurately

measurable or adequately compensable by money damages.’” Leisure Time Cruise

Corp. v. Town of Barnstable,

(D. Mass. 1999) (quoting Ross–

Simons of Warwick, Inc. v. Baccarat, Inc.,

(1st Cir. 1996)). Further,

“[a] finding of irreparable harm must be grounded on something more than

conjecture, surmise, or a party’s unsubstantiated fears of what the future may have

in store.” Charlesbank Equity Fund II, Ltd. P’ship v. Blinds To Go, Inc.,

(1st Cir. 2004). Finally, a “delay between the institution of an action and

the filing of a motion for preliminary injunction, not attributable to intervening

events, detracts from the movant’s claim of irreparable harm.”

.

25 Here, HRDC has not shown that it will suffer irreparable harm in the

absence of a preliminary injunction. The record shows that HRDC has notice of the

current policy and how it is applied. Thus, it will not suffer harm if the Jail does

not send it a letter explaining the policy every time it rejects HRDC’s mailings in

the future. See Larkin,

, at *29.

Because HRDC has shown neither a likelihood of success on the merits nor

irreparable harm, the court denies HRDC’s motion for a preliminary injunction on

its Fourteenth Amendment claim.

CONCLUSION

For the above reasons, HRDC’s motion for preliminary injunction (doc. no. 3)

is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 2, 2023

cc: Counsel of Record.

26