Case 2:11-cv-00907-JAM-DAD Document 61 Filed 08/06/12 Page 1 of 11

1 SANFORD JAY ROSEN – 62566
ERNEST GALVAN – 196065
2 KENNETH M. WALCZAK – 247389
ROSEN BIEN GALVAN & GRUNFELD, LLP
3 315 Montgomery Street, Tenth Floor
San Francisco, California 94104-1823
4 Telephone: (415) 433-6830
Facsimile: (415) 433-7104
kwalczak@rbg-law.com
5 Email:
6 LANCE WEBER (admitted pro hac vice)
HUMAN RIGHTS DEFENSE CENTER
7 P.O. Box 2420
Brattleboro, Vermont 05303-2420
8 Telephone: (802) 257-1342
Facsimile: (866) 228-1681
lweber@humanrightsdefensecenter.org
9 Email:
10 Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SACRAMENTO DIVISION

14 PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,
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Plaintiff,
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v.
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COUNTY OF SACRAMENTO;
18 SCOTT R. JONES, individually and in his
capacity as Sheriff of the County of
19 Sacramento; DOES 1-20, in their
individual and official capacities,
20
Defendants.
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Case No. 2:11-cv-00907-JAM-DAD
STIPULATION AND [PROPOSED]
ORDER DISMISSING CASE AND
RETAINING JURISDICTION OVER
CONSENT DECREE
Judge: Hon. John A. Mendez

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[644367-2]

STIPULATION AND [PROPOSED] ORDER ADMINISTRATIVELY CLOSING CASE

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THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, STIPULATE AS

2 FOLLOWS:
3

1.

The Parties have negotiated a settlement by consent decree, resolving all

4 claims asserted in the Complaint. See Exhibit A.
5

2.

The Parties agree that settlement has altered the legal and juridical

6 relationship of the Parties.
7

3.

Plaintiff has released Defendants for all claims pursuant to Paragraph 8 of

8 the Consent Decree.
9

4.

The Parties have further agreed that this Court should dismiss the complaint

10 with prejudice, but retain jurisdiction over the case to enforce the Consent Decree until
11 such jurisdiction is terminated by the Court upon motion made by either Party. See
12 Consent Decree, ¶ 19.
13

5.

The Parties respectfully request that the Court enter the [Proposed] Order set

14 forth below, instructing the Clerk to administratively close the case.
15

IT IS SO STIPULATED.

16 DATED: August 6, 2012

Respectfully submitted,

17

ROSEN, BIEN & GALVAN, LLP

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19
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By: s/ Ernest Galvan
Ernest Galvan

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Attorneys for Plaintiff

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LONGYEAR, O’DEA & LAVRA, LLP

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By: s/ John Lavra
John Lavra

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Attorneys for Defendants

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[644367-2]

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STIPULATION AND [PROPOSED] ORDER ADMINISIRATIVELY CLOSING CASE

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[PROPOSED] ORDER ADMINISTRATIVELY CLOSING CASE

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IT IS HEREBY ORDERED that:

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The parties having reached a Consent Decree resolving the Plaintiff’s claims, the

4 Court orders the claims dismissed with prejudice under Rule 41(a)(2) of the Federal Rules
5 of Civil Procedure, subject to the condition that the Court retains jurisdiction to enforce
6 compliance with the Consent Decree, until such jurisdiction is terminated by the Court
7 upon motion made by either Party. Motions regarding the Consent Decree may be filed by
8 the parties under this case number pursuant to the Court’s ancillary jurisdiction to enforce
9 the Consent Decree.
10

IT IS HEREBY ORDERED

11
12 DATED: _____________________
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14
15

THE HONORABLE JOHN A. MENDEZ
UNITED STATES DISTRICT JUDGE

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[644367-2]

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STIPULATION AND [PROPOSED] ORDER ADMINSITRATIVELY CLOSING CASE

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EXHIBIT A

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SANFORD JAY ROSEN 62566
ERNEST GALVAN- 196065
KENNETH M. WALCZAK- 247389
ROSEN, BIEN & GALVAN, LLP
315 Montgomery Street, Tenth Floor
San Francisco, California 94104-1823
Telephone: (415) 433-6830
Facsimile:
(415) 433-7104
Email: kwalczak@rbg-law.com
WEBER (admitted pro hac vice)
HUMAN RIGHTS DEFENSE CENTER
P.O. Box 2420
Brattleboro, Vermont 05303-2420
Telephone: (802) 257-1342
Facsimile"
(866) 228-1681
Email: lweber@humanrightsdefensecenter.org

Attorneys for Plaintiff Prison Legal News
LONGYEAR, O'DEA & LAVRA, LLP
John A. Lavra, CSB No.: 114533
3620 American River Drive, Suite 230
Sacramento, CA 95864
Phone: 916-974-8500
Facsimile: 916-974-8510

Attorney

County

for Defendants

Sacramento, Scott R. Jones,

of

et al.

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UNITED STATES DISTRICT COURT
17

EASTERN DISTRICT OF CALIFORNIA
18
SACRAMENTO DIVISION

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PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

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STIPULATION AND
CONSENT DECREE

Plaintiff,

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Case No. 2:11-cv-00907-JAM-DAD

Judge:

go

Hon. John A. Mendez

COUNTY OF SACRAMENTO;
SCOTT R. JONES, individually and in his
capacity as Sheriff of the County of
Sacramento; DOES 1-20, in their
individual and official capacities,

Defendants.

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[635851-1]

CONSENT DECREE

[PROPOSED]

CASE NO. 2:11-CV-00907-JAM-DAD

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parties
decree by

The
consent

to this

action, represented by counsel, stipulate

the court

as

to and

request entry of

a

follows:

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April 5, 2011, Plaintiff Prison Legal News, a Project of the Human
Rights Defense Center ("PLN" or "Plaintiff") filed suit in the above entitled matter seeking
injunctive and declaratory relief, damages, and attorney's fees and costs. Plaintiff's
complaint alleges an unlawful and unconstitutional custom, practice, or policy regarding
the delivery of incoming publications and correspondence to prisoners at the Sacramento
County jails. The complaint alleges violations of the First and Fourteenth Amendments to
the United States Constitution, pursuant to 42 U.S.C. § 1983, and seeks injunctive and
declaratory relief, money damages, attorney's fees and legal costs.
On June 2, 2011, Defendants Sacramento County, et al., (collectively
2.
"Defendants") filed an answer denying the allegations of the complaint and raising various

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affirmative defenses.

1.

6
7

8
9
10
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3.

On

The

parties

disputed, and continue to dispute
expense, delay, uncertainty, and burden

agree that Defendants have

and

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of
deny, liability. However, in order to avoid the
litigation the parties agree to the entry of this consent decree.
Plaintiff publishes and distributes a monthly journal of corrections news and
4.
analysis, and offers and sells books about the criminal justice system and legal issues
affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the
Country. PLN engages in protected speech and expressive conduct on matters of public
F.3d 692 (9th Cir. 2005).
concern. See Prison Legal News v. Lehman, 397
Defendants operate the Sacramento County Main Jail ("SCMJ") and Rio
5.
Cosumnes Correctional Center ("RCCC"), two facilities which house prisoners and

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detainees.

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Beginning in or around April 2009, Defendants refused to .deliver
publications and correspondence sent by PLN to its subscribers, potential subscribers,

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6.

and

readers at SCMJ and RCCC. The stated bases for these exclusions were that PLN's
magazine is held together by staples, and that PLN uses standard mailing labels to address

[635851-1]

CONSENT DECREE

CASE NO. 2:11-CV-00907-JAM-DAD

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its

correspondence.
The Court

7.

injunction.

on

March 7, 2012

granted

PLN's motion for

preliminary

findings were:
Defendants' policies and practices including refusing to deliver
PLN publications and mailings to prisoners because they
contained staples and/or a mailing label are not supported by a
legitimate penological interest and do not leave open

The March 7, 2012

4
5

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for PLN to exercise its First Amendment
rights. Furthermore, allowing PLN to be delivered to prisoners
in the Sacramento County's jails would have very limited
impact on guards and other inmates, and there are obvious,
easy alternatives to Defendants' bans on PLN's staples and
mailing labels. In short, Defendants' policies are an
exaggerated response to any security concerns posed by PLN.

alternative

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10
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means

Plaintiff has demonstrated that it will suffer irreparable harm in
the absence of preliminary injunctive relief and the balance of
hardships tips in Plaintiff' s favor. The loss of First Amendment
freedoms, for even minimal periods of time, constitutes
irreparable injury. Here, Defendants have infringed on
Plaintiff's established rights to send publications to prisoners.
The grant of a preliminary injunction will not cause irreparable
harm to the Defendants. The balance of equities therefore tips
in Plaintiff' s favor.

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Finally, the preliminary injunction set forth below is in the
public interest. Defendants' policies operated as a de facto ban
constitutional rights of
on PLN publications. Protecting the
PLN promotes the public interest.

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alleged

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relief

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the

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alleged by

sum

agree that this consent decree resolves all claims for injunctive
in Plaintiff' s complaint. By this consent decree, together with payment of

The

8.

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parties

($300,000.00), the parties agree that all claims
finally resolved. The parties agree that Plaintiff will

of three hundred thousand dollars

Plaintiff

are

fully

and

claims, and that Defendant will remit payment to Plaintiff as soon
later than sixty (60) days after
26 as reasonably possible after the entry of this order, but not
sixty (60) days, interest shall accrue
27 entry of the order. If payment is not made within
of this order.
28 pursuant to 28 U.S,C. § 1961 from the date of entry

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[635851-1]

execute

a

release of all

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CONSENT DECREE

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parties agree that the Plaintiff shall not be entitled to any attorney's fees
and costs for monitoring compliance with this consent decree.
The parties agree that this consent decree shall only be applicable to: (a) the
10.
delivery of Plaintiff' s publications, and/or publications from other known publishers and
the removal of staples from those publications; and (b) the delivery of documents or
correspondence from Prison Legal News and/or other known publishers that contain
mailing labels.
The parties agree that providing prisoners with access to reading materials
11.
promotes positive contact with the communities into which prisoners will eventually be
released and is therefore consistent with the Defendants' public safety mission.
9.

The

12.

DEFINITIONS:

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a.

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fasteners

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sheets of

b. As used
sticker used

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c.

by

an

light-duty small wire
used by PLN to bind the

the type of

few sheets of paper, and

herein, MAILING LABELS shall

PLN to affix

As used

a

mean

address to

an

item of

herein, PUBLISHER shall

mean

the type of self-adhesive

printed

matter.

any

publisher

mean

or

book store that

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does mail order business.

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parties agree that Defendants and their successors, officers, agents,
servants, and employees, and all others in active concert or participation.,with them, shall
not refuse to deliver publications, correspondence, or documents sent by any PUBLISHER
to prisoners at the county's jails on the ground that these publications, correspondence, or
documents contain STAPLES, PROVIDED that Defendants may comply by removing the

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STAPLES.

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13.

The

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agree that Defendants shall not refuse to deliver publications,
correspondence, or documents sent to prisoners from any PUBLISHER because of
MAILING LABELS, PROVIDED that Defendants may comply by removing the

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MAILING LABELS.

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[635851-1]

herein, STAPLES shall

commonly used to attach
its monthly publication.

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As used

14.

The

parties

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CONSENT DECREE

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an

The

parties

agree that Defendants shall

provide adequate

written notice and

administrative review process to the PUBLISHER of any refusal to deliver any

publication, correspondence, or document sent from a PUBLISHER to a prisoner at the
County's jails. The administrative review process shall include the PUBLISHER's right to
have its appeal, complaint, or inquiry considered and resolved by a decisionmaker other
than the person who originally refused to deliver the publication or mailing in question.
Defendants also agree to purchase four (4) five-year subscriptions to PLN's
16.
monthly journal for each Sacramento County jail library, and to retain and maintain those
four (4) copies in each County Facility's libraries, for use by prisoners. Defendants shall
order and pay for the subscriptions within ten (10) calendar days of the entry of this Order.

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If Plaintiff proves, in future, any violation ofthis order, Defendants shall be
liable for the reasonable attorney's fees and costs PLN incurs in proving the violation.

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Defendants shall have the

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opportunity to demonstrate that any violation is isolated,
accidental, and/or not foreseeable in light of Defendants' history of substantial compliance
and efforts to train and inform staff on mail and publication policies to mitigate relief
ordered for any violation, including fees and costs.
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The Court finds that this

case concerns

the First and Fourteenth Amendment

publisher and is therefore not a case concerning prison conditions as defined in
the Prison Litigation Reform Act of 1996. The Court further finds that the relief herein
ordered is narrowly drawn, extends no further than necessary to correct t, he harm to PLN
requiring injunctive relief, and is the least intrusive means necessary to correct that harm.
The Court retains jurisdiction of this matter for the purpose of enforcement
19.
of its Order until terminated upon motion made by either party.
20.
No person who has notice of this consent decree shall fail to comply with it,
Other artifice.
nor shall any person subvert the injunction by any sham, indirection, or
rights

of

a

IT IS SO STIPULATED.

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[635851-1]

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CONSENT DECREE

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2012

DATED"

LLP

Attorneys for Plaintiff Prison Legal News
a project of the HUMAN RIGHTS DEFENSE

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ROS•GALVAN,

DATED:

6/• "4•

,2012

CENTER

LONGYEAR, O'DEA & LAVRA, LLP

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Lavra

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Attorneys for Defendants County of Sacramento,

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Scott

R. Jones

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DATED:

•1 •.•

,2012

SACRAMENTO COUNTY SHERIFF' S DEPARTMENT

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Sheriff Scott Jones

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IT IS SO ORDERED.

DATED"

,2012

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By:
John A. Mendez,
United States District

Judge

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CONSENT DECREE

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20.

No person who has notice of this consent decree shall fail to comply with it,

2 nor shall any person subvert the injunction by any sham, indirection, or other artifice.
3

IT IS SO STIPULATED.

4
5 DATED: _______________, 2012

ROSEN BIEN GALVAN & GRUNFELD LLP

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By:

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Ernest Galvan
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Attorneys for Plaintiff Prison Legal News
a project of the HUMAN RIGHTS DEFENSE
CENTER

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10
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12 DATED: _______________, 2012

LONGYEAR, O'DEA & LAVRA, LLP

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By:

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John A. Lavra

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Attorneys for Defendants County of Sacramento,
Scott R. Jones

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IT IS SO ORDERED.

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20 DATED: July 16, 2012
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/s/ John A. Mendez____________
John A. Mendez,
United States District Court Judge

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[635851-1]

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CONSENT DECREE

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2:11-cv-00907-JAM-DAD