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Simpson v. County of Cape Girardeau

United States District Court, E.D. Missouri, Southeastern Division

August 16, 2016

CHERYL SIMPSON, Plaintiff,
v.
COUNTY OF CAPE GIRARDEAU, MISSOURI, Defendant.

          MEMORANDUM

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         On January 1, 2014, the Cape Girardeau County jail imposed a “postcard only” policy for non-privileged correspondence to its inmates. Plaintiff Cheryl Simpson brings this action pursuant to 42 U.S.C. § 1983, claiming that the policy impermissibly restricts the ability of outside correspondents to communicate with inmates, in violation of the First and Fourteenth Amendment. Plaintiff seeks declaratory and injunctive relief.

         The parties appeared for a bench trial on November 6, 2015. After considering the evidence presented and the parties’ stipulation of facts, the Court makes findings of fact and conclusions of law as required by Rule 52(a)(1) of the Federal Rules of Civil Procedure.

         I. Findings of Fact

         Plaintiff’s son, Trey Simpson, was an inmate at the Cape Girardeau County jail from August 2013 to February 2014. Joint Stip. at ¶2. [Doc. #46]. The jail is a transitional or temporary facility that houses approximately 220 male and female inmates in ten pods, with an average count of 207 inmates. Joint Stip. at ¶29; Transcript at 85. The typical length of stay is less than six months. Joint Stip. At ¶32. The jail is staffed in two shifts, with four corrections officers on each shift. One officer remains stationed at a computer monitor and operates the facility’s doors. The remaining officers are responsible for booking prisoners into the jail, releasing prisoners, making security checks of the pods and perimeter, responding to disturbances, handling medical and commissary requests, transporting inmates to medical visits and court, serving meals, processing civilian fingerprints, and handling incoming mail.[1] Transcript at 84-85. Although outgoing mail should be scanned, jail personnel rarely have enough time to do so. Transcript at 89.

         A. The Jail’s Mail Policy

         Before the jail implemented the postcard-only policy on January 1, 2014, there were no limits on the number or length of individual letters an inmate could receive. Between 50 and 100 letters were received each day. Transcript at 110; but see Transcript at 121 (Mulcahy estimated the jail received between 50 and 150 pieces of mail every day). All nonprivileged[2] mail was opened by corrections officers, who scanned the contents for information about escape plans or threats to other inmates. Transcript at 83-84. The officers also searched for contraband - such as tobacco, drugs, [3] or lewd photographs - and other items that pose a security risk - such as paperclips, staples and rubber bands. See Transcript at 81 (staples can be used to make tattoos), 115-17 (rubber bands can be used to tie sheets together or make zip guns; paperclips can be used to make handcuff keys). In addition, officers searched for newspaper and magazine articles and court documents that referred to other inmates. Transcript at 80, 82, 133 (outside correspondents sent criminal history information of other inmates). Where possible, articles and court documents were returned to the sender. Transcript at 133. Finally, any personal property items included in the mail were labeled and placed in storage to be given to the inmate upon release. Transcript at 94, 121. Captain James Mulcahy testified that it could take one or two officers 35 to 45 minutes of uninterrupted time to process the “normal mail load, ” and up to two hours to do so “on a bad day.” Transcript at 142. He acknowledged, however, that this was an educated guess because the jail did not keep records of how long it took to process the mail. Transcript at 140.

         In October 2013, Lieutenant Todd Stevens proposed changing the policy regarding incoming mail to limit nonprivileged correspondence to postcards. Plaintiff’s Ex. 7. He identified the following benefits of such a policy: (1) “a higher level of safety and security” at the jail; (2) “possibly less mail coming into the facility;” (3) “less contraband introduced” into the jail; (4) “less manpower spent opening and searching mail;” and (5) reduced liability for “missing property that is mailed into the facility and cannot be given to the inmate.” He identified possible disadvantages as well: (1) complaints from inmates and their families; (2) “[m]ost postcards are thick and could be used for picking locks and making other forms of contraband;” and (3) legal challenges to the policy. Id. He noted that the policy had been adopted by “several” Missouri sheriffs’ offices. Id.

         The policy went into effect on January 1, 2014. Its stated purpose is to “expand the safety and security” for “inmates and Staff.” All nonprivileged correspondence entering the jail must be written on “standard white postcards” no larger than 5” by 7” and include a legible return address. Plaintiff’s Ex. 1, Policy at § I. “Unacceptable” postcards - i.e., index cards, photographs, and postcards that are defaced or altered; depict nudity, weapons, alcohol or gang references; or have labels, stickers, stains, watermarks, or “biohazards, including lipsticks or perfumes” - are returned to the sender. All stamps are removed and discarded before the cards are given to the inmate. While an inmate may receive an unlimited number of postcards, he may keep only ten postcards in his cell. Id. According to the policy, incoming postcards are monitored “to ascertain any attempt at escape, security violations, or conspiracy to introduce contraband.” Id. at § III(a)(4). In the event that such information is found, the inmate is “given written notice of the reasons the correspondence is being denied.” Id. at § III(a)(5). The postcard-only policy does not apply to outgoing mail. Transcript at 89.

         The policy sets forth an exception for legal and religious mail. Policy at III(a)(1)(b). Legal mail includes “anything from attorneys [or] courts, ” while privileged religious mail must come from a religious institution. Transcript at 87-88. All privileged mail is opened by jail staff in the presence of the receiving inmate. Transcript at 53, 77. In addition to the official exceptions for legal and religious mail, the evidence establishes that the jail has unwritten exceptions. Upon written request, Stevens and Mulcahy can authorize inmates to receive letters from family members who cannot obtain postcards because they are incarcerated. Transcript at 87. In addition, inmates representing themselves in civil or criminal matters may request permission to receive legal materials from family members.[4] Transcript at 102-03, 128-29. Mulcahy acknowledged that “not everyone know[s] that they can” receive legal materials through the mail from family. Transcript at 122. There was no testimony on whether the jail intends to update the written policy to include these exceptions.

         Since the postcard-only policy was implemented, the jail receives about 50 postcards a day. Transcript at 111. For each postcard, corrections officers remove the stamp, scan the contents, [5] log its receipt, and deliver it to the receiving inmate. Transcript at 94. It takes an average of 30 to 45 minutes to complete distribution of the postcards. Transcript at 134.

         On March 15, 2014, the jail implemented a policy allowing inmates to receive personal emails and photographs, for a cost of $.35 for each email and $.50 for each photograph. Transcript at 90. Emails are limited to 500 words or fewer; photographs depicting nudity, weapons, alcohol or gang references are not allowed. Corrections officers scan incoming emails for prohibited content and print them. The printed emails are given to the inmates if they have enough money in a commissary account to pay for them; otherwise, the emails are held in a file until there are funds to pay for them. Transcript 108-10. The jail receives about 100 emails a day for inmates.

         There was testimony at trial that the jail planned to make videoconferencing available to inmates in late 2015. Transcript at 91. In contrast to the visitation policy, videoconferences will not be restricted to immediate family members. Videoconferences can be placed for free from kiosks in the jail’s lobby or from home computers or mobile devices for a charge of $5.00 for 15 minutes. Transcript at 118-20.

         B. Plaintiff’s ...


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