Petition for Writ of Certiorari — Jesse Loor, Petitioner v. Jenny Bailey, et al.

No.

IN THE

Supreme Court of the United States

_________

JESSE LOOR,

Petitioner,

v.

JENNY BAILEY, EDWIN CAMBRIDGE, MARYDELL

GUEVARA, ENRIQUE RODRIQUEZ, AND TRACEY

WEATHERSPOON,

Respondents.

________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

________

PETITION FOR A WRIT OF CERTIORARI

________

DAVID M. SHAPIRO

JOSHUA FREIMAN

RODERICK & SOLANGE

Counsel of Record

MACARTHUR JUSTICE CENTER RODERICK & SOLANGE

MACARTHUR JUSTICE CENTER

718 7th St. NW

Washington, DC 20001

NORTHWESTERN PRITZKER

SCHOOL OF LAW

(202) 869-3434

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

david.shapiro@

law.northwestern.edu

Attorneys for Petitioner

i

QUESTION PRESENTED

In Thornburgh v. Abbott, 490 U.S. 401 (1989), this

Court upheld a correctional institution’s mail

regulations as “facially valid” under the First

Amendment. Id. at 419. But the Court also

differentiated that facial challenge from an as-applied

challenge, ordering the lower court, on remand, to

determine “the validity of the regulations as applied”

to the particular publications censored by mailroom

staff. Id.

The question presented is:

Whether the facial validity of a mail regulation

automatically defeats an as-applied challenge to a

jail’s censorship of particular publications?

ii

TABLE OF CONTENTS

Question Presented .............................................................. i

Table Of Authorities ........................................................... iv

Petition For A Writ Of Certiorari ....................................... 1

Opinion And Order Below ................................................... 1

Jurisdiction .......................................................................... 1

Constitutional Provision Involved ...................................... 1

Introduction ......................................................................... 2

Statement Of The Case ....................................................... 3

Reasons For Granting Relief............................................... 9

I. The Decision Below Flatly Contradicts

Settled Law. ................................................................. 10

A. The Decision Below Contravenes This

Court’s Decision In Thornburgh v. Abbott. .......... 11

B. The Approach Taken By The Court Of

Appeals In This Case Conflicts With The

Practice Of Other Circuits..................................... 13

C. The Decision Below Is Clearly Wrong. ................. 15

D. Review Is Important In This Case. ....................... 17

II. This Case Warrants Summary Reversal. ................... 18

Conclusion .......................................................................... 20

iii

Appendix A

Denial of Petition for Rehearing En Banc,

Loor v. Bailey, et al., No. 16-11733-AA

(11th Cir. Feb. 7, 2018)................................................... 1a

Appendix B

Opinion, Loor v. Bailey, et al., 708 F. App’x 992

(11th Cir. 2017) ............................................................... 2a

Appendix C

Order Adopting Magistrate Judge’s Report and

Recommendation, Loor v. Bailey, et al.,

No. 15-24260-CIV (S.D. Fla. Jan. 21, 2016). ................. 8a

Appendix D

Magistrate Judge’s Report and

Recommendation, Loor v. Bailey, et al.,

No. 15-24260-CIV (S.D. Fla. Nov. 23, 2015). ............... 10a

Appendix E

Complaint, Loor v. Bailey, et al., No. 15-24181CA30

(Fla. 11th Cir. Ct. Oct. 20, 2015) ................................. 24a

iv

TABLE OF AUTHORITIES

Cases

Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) ................... 15

Ashcroft v. ACLU, 542 U.S. 656 (2004) ................................ 20

Bahrampour v. Lampert, 356 F.3d 969 (9th Cir. 2004).... 14

Dean v. Bowersox, 325 F. App’x 470 (8th Cir. 2009) ......... 14

Flagner v. Wilkinson, 241 F.3d 475 (6th Cir. 2001) ... 13, 14

Koutnik v. Brown, 456 F.3d 777 (7th Cir. 2006) ................ 14

Loor v. State, 240 So. 3d 136 (Fla. Dist. Ct. App. 2018) ..... 3

Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) ................ 14

Miller v. California, 413 U.S. 15 (1973) ........................ 19, 20

Murphy v. Missouri Dep’t of Corr.,

372 F.3d 979 (8th Cir. 2004) .......................................... 14

Neitzke v. Williams, 490 U.S. 319 (1989) ............................ 19

New York v. Ferber, 458 U.S. 747 (1982) ............................. 20

Schweiker v. Hansen, 450 U.S. 785 (1981) .......................... 18

Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) ................... 13

Sisney v. Kaemingk, 886 F.3d 692 (8th Cir. 2018) ............ 14

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............... passim

Turner v. Safley, 482 U.S. 78 (1978)................................ 6, 12

Wardell v. Duncan, 470 F.3d 954 (10th Cir. 2006) ............ 15

Constitutional Provisions

U.S. Const. Amend. I ................................................................. 1

Statutes & Rules

28 U.S.C. § 1254(1) ..................................................................... 1

28 U.S.C. § 1915A .....................................................................19

28 U.S.C. § 1915A(b) .................................................................. 6

Fed. R. Civ. P. 12(b)(6).............................................................19

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jesse Loor respectfully petitions this

Court for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eleventh

Circuit in this case.

OPINION AND ORDER BELOW

The Eleventh Circuit’s opinion (Pet. App. 2a–7a)

has not been published, but is currently available at

708 F. App’x 992. The district court’s order (Pet. App.

8a–9a)

adopting

the

magistrate

judge’s

recommendation (Pet. App. 10a–23a) is not reported

but is available at 2016 WL 10644776.

JURISDICTION

The judgment of the court of appeals was entered

on September 14, 2017. On February 7, 2018,

Petitioner’s timely petition for rehearing en banc was

denied by the court of appeals. Pet. App. 1a. On April

19, 2018, Justice Thomas extended the time within

which to file a petition for a writ of certiorari in this

case up to and including July 7, 2018. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL

PROVISION INVOLVED

The First Amendment to the United States

Constitution provides in relevant part: “Congress

shall make no law … abridging the freedom of speech.”

2

INTRODUCTION

Inmate challenges to prison and jail censorship

under the First Amendment come in two flavors:

“facial” challenges to statutes or policies and “asapplied” challenges that seek relief based on a specific

set of censorship decisions. Thornburgh v. Abbott, 490

U.S. 401, 403, 419 (1989). This Court applied this

well-established distinction in Thornburgh, upholding

a prison censorship policy against a facial challenge,

but remanding as-applied challenges for further

review. Id. at 419.

In direct contravention of Thornburgh and in

conflict with the uniform jurisprudence of other

circuits, the court below rejected Petitioner’s asapplied challenge to the censorship of particular

publications based solely on the conclusion that the

relevant mail regulation was facially valid. This

manifest error of law warrants plenary review, if not

summary reversal.

In this case, Petitioner Jesse Loor, a pretrial

detainee, was denied access to medical textbooks on

the ground that the textbooks violated a jail policy on

obscene and sexually explicit materials. His principal

argument has always been that he has a right to the

particular textbooks he sought, not that the jail’s

regulation on obscene and sexually explicit materials

is facially infirm.

The court of appeals ruled against a facial

challenge that Petitioner plainly did not make, and

ignored the crux of his First Amendment claim—an

as-applied challenge to the censorship of the

textbooks. The court should have done what every

other court, including this one, has done: addressed

3

the as-applied challenge plainly pled by Petitioner

regarding the denial of the specific publications he

sought.

The need for this Court’s intervention is all the

more pressing because this case rests upon an

extremely troubling and unnecessary constitutional

conclusion: the court below sanctioned a jail’s

authority to deny a pre-trial detainee medical

textbooks on grounds of obscenity—without even

calling for the censoring officials to respond and

despite the fact that the detainee alleged he needed

the materials to prepare his defense at his upcoming

trial.

STATEMENT OF THE CASE

1. Rejection of Medical Textbooks. As

Petitioner awaited trial in the Metro West Detention

Center in Miami-Dade County, his family ordered

medical reference materials to be delivered to him.

Pet. App. 3a, 13a–14a, 26a ¶ 9, 27a ¶ 13. Petitioner

had been charged with sexual offenses with a minor,

ECF No. 1-1 at 41, and he sought to obtain these

medical textbooks in order to prepare his defense for

trial, Pet. App. 30a ¶ 22. He maintained his innocence

and sought to represent himself.1

1 Petitioner was denied the right to represent himself. Following

conviction, however, a Florida appellate court held that “the trial

court abused its discretion in denying Petitioner the right to

represent himself at trial,” vacated Petitioner’s conviction, and

ordered a new trial. Loor v. State, 240 So. 3d 136, 142 (Fla. Dist.

Ct. App. 2018). The new trial has yet to occur, and Petitioner

continues to seek to represent himself. See Docket, Loor v. State,

No. F-10-027774 (Fla. 11th Cir. Ct.).

4

Photocopying and sending such materials had not

worked—the detention center refused to deliver

photocopies, citing copyright law—so Petitioner’s

family ordered three books from online booksellers:

Evaluation of the Sexually Abused Child,

Dorland’s/Gray’s Pocket Atlas of Anatomy, and

Obstetrics & Gynecology. Pet. App. 13a. These

materials were sent straight from the booksellers to

Petitioner at the detention center. Pet. App. 26a–27a.

But Petitioner did not receive these medical

textbooks because Respondents, who are detention

center staff, determined that the books violated a

regulation on nude or sexually explicit materials (the

“sexual content regulation”). Pet. App. 3a, 13a–14a.

As relevant here, the sexual content regulation

requires rejection of a publication where:

It depicts sexual conduct as follows: 1) actual or

simulated sexual intercourse; 2) deviate sexual

intercourse;

3)

sexual

bestiality;

4)

masturbation; 5) sadomasochistic abuse; 6)

actual lewd exhibition of the genitals; 7) actual

physical contact with a person’s unclothed

genitals, pubic area, buttocks, or, if such person

is a female with breasts with the intent to

arouse or gratify the sexual desire of either

party; 8) any act or conduct which constitutes

sexual battery or simulates that sexual battery

is being or will be committed.

It depicts nudity in such a way as to create the

appearance that sexual conduct is imminent:

i.e., display or contact or intended contact with

a person’s unclothed genitals, pubic area, or,

[sic] female breasts orally, digitally, or by

foreign object, display of sexual organs in an

5

aroused

state,

or

display

nude

(partial/complete) photos to include sexually

suggestive and/or swim suit photos.

ECF No. 1-1 at 34, 36, 38. First, Respondent

Weatherspoon rejected the publications under the

sexual content regulation. Id. When Petitioner

appealed these rejections, Respondents Bailey and

Cambridge decided that “the books would be rejected

because it [sic] contained obscene materials, [and]

sexually graphic pictures and nudity,” in violation of

the sexual content regulation. Id. at 43; Pet. App.

14a.2

2. District Court Proceedings. Petitioner filed

suit pro se in state court, alleging violations of his

First and Fourteenth Amendment rights. Count One,

the First Amendment claim, is captioned “Censorship

and Rejection of Mr. Loor’s Incoming Legal Mail.” Pet.

App. 29a. That is the only claim that remains relevant

now.3

In Count One, Petitioner pled that the “rejection of

his

incoming

medical

research

materials

compr[om]ises his defense and legal proceedings” and

that “the rejection of his medical research materials

hinders [his] ability to become a learned expert in

2 In addition, Bailey and Cambridge noted that one of the books

had a hard cover and was not permitted on that basis. ECF No.

1-1 at 43; ECF No. 1-2 at 10.

3 Count One encompassed both a challenge to the denial of the

three medical publications under the sexual content regulation

and a challenge to the denial of earlier material for copyright

reasons. Pet App. 29a–31a ¶¶ 19–22. Petitioner does not press

the copyright argument, and this Petition addresses only the

rejection of the three medical textbooks under the sexual content

regulation.

6

allegations of child sex abuse.” Pet. App. 30a ¶ 22. All

of this, he asserted, was “in flagrant violation of . . .

the right to free speech.” Id. In addition to damages,

Petitioner’s prayer for relief sought an injunction

ordering jail authorities to “cease the censorship of

[Petitioner’s] incoming mail,” coordinate with

Petitioner’s family to retrieve their copy of Evaluation

of the Sexually Abused Child, and “not to interfere

with the delivery” of the other previously rejected

medical books. Pet. App. 33a–34a ¶ 32. Petitioner

stated that the censored materials do not “depict[]

actual ‘sexual conduct’ and ‘obscene material’” and

alleged that Respondents “misapplied” their policy.

Pet. App. 34a ¶ 33.

Respondents removed the suit to federal court. Pet.

App. 10a; ECF No. 1. They neither answered the

complaint nor moved to dismiss. See Pet. App. 10a.

Instead, within one week of removal, the

magistrate judge recommended summary dismissal of

Petitioner’s federal claims for failure to state a claim.

Id.; see 28 U.S.C. § 1915A(b). Applying the legitimate

penological interest test of Turner v. Safley, 482 U.S.

78, 89–90 (1987), the magistrate judge opined that the

jail had a legitimate “interest [in] keeping explicit

material . . . out of the hands of pretrial detainees” and

that the regulation was rationally connected to that

interest. Pet. App. 18a.

Petitioner

objected

to

the

report

and

recommendation. ECF No. 17. He argued that the

censorship violated the First Amendment not because

of some facial infirmity in the sexual content

regulation as written but because he had a

constitutional right to receive the textbooks

themselves. Petitioner reiterated his position that the

7

medical textbooks were “improperly labeled” as

obscene. Id. at 3. He described again each of the

“improperly rejected book[s],” their scientific and legal

value, and why they did not fall within the categories

of sexually explicit or obscene speech. Id. at 3–5.

Petitioner again stated his core theory that “the

rejection of his medical textbooks would result [in]

violation of his First Amendment . . . right[].” Id. at 5.

Petitioner argued that, irrespective of the detention

center’s general security interest, “censorship of First

Amendment protected medical textbooks needed to

prepare a defense” is not reasonably related to such

an interest. ECF No. 17 at 8–9.

The district court nonetheless adopted the

magistrate’s recommendation. Pet. App. 8a. The

federal claims were dismissed for failure to state a

claim, and the court relinquished supplemental

jurisdiction over the state law claims. Pet. App. 22a.

3. Decision Below. Petitioner appealed the

decision to the United States Court of Appeals for the

Eleventh Circuit and prosecuted his appeal pro se.

In the court of appeals, Petitioner continued to

argue that he had a First Amendment right to receive

the three medical textbooks at issue—not to challenge

the sexual content regulation on its face. He argued

that “Bailey, Cambridge and Weatherspoon

impermissibly labeled the (3) medical textbooks as

‘obscene materials’ . . . to justify the wrongful

censorship of 1st Amendment protected medical

textbooks.” Appellant’s Br. at 18; see also id. at 18–19

(stating that “the rejection of the medical textbooks

will interfere with the preparation for defense, violate

his 1st and 14th Amendment and invite redress for

civil liabilities”); id. at 22 (Respondents “violated

8

Appellant’s right to free speech and his 1st

Amendment right to receive serious and scientific

publications that were clearly protected under the 1st

Amendment.”). In a final summary, Petitioner

concluded that the district court had erred because he

had alleged the law, wrongful act, and injury

necessary to state a First Amendment claim:

(1) Medical textbooks are 1st Amendment

protected materials; (2) County jail officials

impermissibly labeled the medical textbooks as

‘obscene materials’ contrary to federal law to

refuse the delivery of 1st Amendment

materials . . . [and] (6) Absent the medical

textbooks, Appellant was not able to speak of

the knowledge contained in the medical

textbooks, interfered with the preparation for

defense and interfered with decision to testify,

and prevented him from becoming a learned

expert.

Id. at 28.

In his reply brief, Petitioner faulted the district

court for misunderstanding his core contention. He

stated that the district court had “not addressed” and

“disregarded” the key questions: “Are these medical

textbooks ‘obscene’ materials? And are they protected

under the First Amendment?” Reply Br. at 4.

Petitioner further observed that “Appellees continue

to deviate from the fact that they impermissibly

labeled [Petitioner’s] medical textbooks as ‘obscene’

materials to egregiously reject them . . . [t]hus

violating Appellant’s First Amendment right.” Id. at

5. Throughout, Petitioner was singularly focused on

the rejection of his medical textbooks.

9

The court of appeals affirmed the dismissal. Pet.

App. 3a–7a. The decision below wholly disregarded

the as-applied argument that Petitioner had a right to

receive the particular textbooks. The court rejected

Petitioner’s as-applied challenge to the censorship of

the medical textbooks as sexually explicit based solely

on the facial validity of the sexual content regulation:

“Loor failed to raise a First Amendment claim because

the regulation prohibiting . . . obscene material was

reasonable.” Pet. App. 5a. In support, the court

reasoned that “[t]here is a valid, rational connection

between the regulation prohibiting obscene [and]

explicit . . . materials and the government’s interest in

keeping such materials from the hands of pretrial

detainees.” Id. (citing Thornburgh, 490 U.S. at 416).

In addition, the court concluded, “[i]t is rational to

exclude materials that ‘create an intolerable risk of

disorder,’ and textbooks containing explicit imagery

and nudity would be likely to circulate among

inmates.” Id. (quoting Thornburgh, 490 U.S. at 417).

“Finally,” the court stated, “requiring prison officials

to . . . redact books to omit obscene materials would be

costly and no obvious means exist to give detainees

access to obscene . . . material at a de minimis cost.”

Id.

This petition followed.

REASONS FOR GRANTING RELIEF

Thornburgh v. Abbott, 490 U.S. 401 (1989),

differentiated between facial and as-applied

challenges to prison policies that trench on First

Amendment liberty. In Thornburgh, a facial challenge

to a prison censorship policy on incoming mail failed—

but further analysis was required in the lower court.

10

The question remained whether rejecting the

particular publications at issue violated the First

Amendment.

The court of appeals’ reasoning in this case—in

particular, its disregard of the as-applied claim—

flatly contradicts Thornburgh. Here, the court held

that the facial validity of the sexual content regulation

necessarily meant that the regulation’s application to

the three medical textbooks comported with the First

Amendment. That approach is contrary not only to

Thornburgh, but to every federal appellate court to

address the relationship between facial and asapplied challenges to prison speech restrictions. After

all, if the facial validity of a given policy automatically

immunized censorship decisions under that policy,

any application of the policy, no matter how

unreasonable or censorial, would satisfy the First

Amendment.

Because of the clear conflict between the court of

appeals’ decision and the law of this Court and other

circuits, this Court should grant review or summarily

reverse the judgment below.

I.

The Decision Below Flatly Contradicts

Settled Law.

The court of appeals’ decision presents a question

well suited to this Court’s review and summary

reversal. Petitioner’s complaint—the only pleading in

the case—described a standard as-applied challenge

regarding the denial of specific incoming publications

under the First Amendment. But the court of appeals

affirmed the dismissal of Petitioner’s claim on facial

grounds: “[Petitioner] failed to raise a First

Amendment claim because the regulation prohibiting

11

. . . obscene material was reasonable.” Pet. App. 5a.

The court did not ask whether such a regulation was

reasonable as applied to the denial of these medical

textbooks, see id., even though that was the only legal

theory on which Petitioner grounded his First

Amendment claim in his complaint. This approach

contravenes this Court’s holding in Thornburgh, and

puts the Eleventh Circuit out of line with the uniform

practice of other circuits.

The court of appeals’ obvious error has serious

consequences. The error took away the availability of

meaningful as-applied relief, which was an essential

ingredient in Thornburgh’s constitutional holding.

The error also subjects Petitioner to the strictures of

facial challenges even though he did not seek them.

Examining only the facial validity of the policy caused

the court to ignore Petitioner’s as-applied challenge

that contended officials exceeded the policy.

A.

The Decision Below Contravenes This

Court’s Decision In Thornburgh v.

Abbott.

Thornburgh v. Abbott recognized a critical

distinction between as-applied and facial challenges—

a distinction ignored in the decision below. See 490

U.S. at 403–04, 419. In Thornburgh, this Court upheld

a federal Bureau of Prisons regulation on prisoners’

incoming mail which authorized censoring any

publication “determined detrimental to the security,

good order, or discipline of the institution or if it might

facilitate criminal activity.” Id. at 403 & n.1, 404.

Plaintiffs challenged the policy on its face and as

applied to a specific set of 46 banned publications. Id.

at 403.

12

Applying the four-part test of Turner v. Safley, 482

U.S. 78 (1987), the Court concluded that the policy

was “expressly aimed” at a legitimate and neutral

governmental interest—namely, “protecting prison

security,” and found that the broadly discretionary

scheme the BOP promulgated was rationally related

to that interest because it allowed the prison to censor

any publication that posed “an intolerable risk of

disorder under the conditions of a particular prison at

a particular time.” Thornburgh, 490 U.S. at 417. The

policy was likewise held valid because prisoners

continued to possess the right to read permitted

publications and so retained “alternative means” of

exercising their rights; the requisite finding of a

threat to security suggested the exercise of the right

would have a harmful impact on other prisoners; and

the petitioners had proffered “no obvious, easy

alternatives” for exercising the right. Id. 417–18.

As a result, Thornburgh found the regulation

“facially valid.” Id. at 419. But the Court explicitly

reserved judgment and remanded the case “for a

determination of the validity of the regulations as

applied to each of the 46 publications.” Id. at 404

(emphasis added); see also id. at 419.

Here, the court of appeals erased any difference

between Petitioner’s as-applied challenge and the

facial challenge he chose not to make. The decision

below therefore defies Thornburgh’s bifurcated

approach.

13

B.

The Approach Taken By The Court Of

Appeals In This Case Conflicts With

The Practice Of Other Circuits.

Since Thornburgh, the federal courts of appeals

have analyzed prisoner First Amendment challenges

to prison policies using the same rubric as this Court:

identifying whether the First Amendment challenge

is facial or seeks relief as applied to particular

circumstances and calibrating their analysis to the

nature of the challenge. The court of appeals’ decision

here conflicts with this settled practice.

The Second, Sixth, Seventh, Eighth, Ninth, Tenth,

and D.C. Circuits differentiate between facial and asapplied challenges to prison regulations that limit the

freedom of expression. They analyze the two species of

claim separately.

In Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004),

the Second Circuit examined a prison’s denial of “New

Afrikan” publications. Id. at 109. Shakur challenged

the policy as applied to those publications specifically.

Id. at 110–11. The court concluded that Shakur stated

a First Amendment claim because the censorship of

the particular materials was not supported by the

prison’s own censorship rules. Id. at 116–17.

In Flagner v. Wilkinson, 241 F.3d 475 (6th Cir.

2001), the Sixth Circuit found that a prisoner’s asapplied claim regarding his ability to grow facial hair

survived dismissal. The court found plaintiff’s

individual circumstances had to be considered in

evaluating the as-applied claim, id. at 483, and held

that plaintiff’s “demonstration of the lack of a factual

basis for [the prison’s] justifications as applied to

14

himself . . . weigh[ed] heavily in favor of” his claim. Id.

at 486.

The Seventh Circuit likewise differentiates

between as-applied and facial challenges. In Koutnik

v. Brown, 456 F.3d 777 (7th Cir. 2006), the court

rejected both a facial challenge to a prison policy on

outgoing mail, id. at 783–84, and the application of

that policy to a specific confiscated article, id. at 785–

86.

The Eighth Circuit similarly holds that “[a]

regulation valid and neutral in other respects may be

invalid if it is applied to the particular items in such

a way that negates the legitimate concerns.” Murphy

v. Missouri Dep’t of Corr., 372 F.3d 979, 986 (8th Cir.

2004). Thus, in Dean v. Bowersox, 325 F. App’x 470

(8th Cir. 2009), the court affirmed dismissal of a facial

challenge to a prison censorship policy barring

sexually explicit material. Id. at 472. But the court

found the plaintiff should survive dismissal of his

claim as applied to the particular publications he

sought. Id. The court again applied these precepts in

Sisney v. Kaemingk, 886 F.3d 692 (8th Cir. 2018),

remanding a prisoner’s as-applied challenge to a

censorship policy to the district court and directing

the court to abstain from ruling on a related facial

challenge. Id. at 699.

The Ninth, Tenth, and D.C. Circuits also treat

facial and as-applied challenges separately. See

Bahrampour v. Lampert, 356 F.3d 969, 974, 976 (9th

Cir. 2004) (determining that publications actually

violated challenged rule, in addition to examining

facial constitutionality of rule); Mauro v. Arpaio, 188

F.3d 1054, 1063 (9th Cir. 1999) (en banc) (upholding

jail’s policy of banning material containing frontal

15

nudity against facial challenge); Wardell v. Duncan,

470 F.3d 954, 957, 963 (10th Cir. 2006) (recognizing

that inmate’s “broad facial attack on [inmate mail]

regulations” had become moot and finding inmate’s

as-applied to censorship failed); Amatel v. Reno, 156

F.3d 192, 194, 202 (D.C. Cir. 1998) (upholding BOP

regulation against facial challenge and noting

“problems of application can be left to the time when,

if ever, they arise”).

The decision below is a clear outlier from this

uniform method of assessing as-applied challenges in

inmate First Amendment cases.

C.

The Decision Below Is Clearly Wrong.

In each pleading and brief, Petitioner was crystal

clear that his case was about the censorship of the

particular items that he requested. Petitioner’s

complaint described a First Amendment violation

based on “the rejection of his incoming medical

research materials.” Pet. App. 30a ¶ 22. He sought

relief tailored to this specific allegation that jail

officials had wrongfully rejected his publications:

Petitioner’s prayer for relief sought an injunction

ordering jail authorities to “cease the censorship of

[Petitioner’s] incoming mail,” to “coordinate with”

Petitioner’s family to retrieve their copy of Evaluation

of the Sexually Abused Child, and “not to interfere

with the delivery” of the other previously rejected

medical books. Pet. App. 33a–34a ¶ 32.

Petitioner did not attribute this unconstitutional

rejection to the policy itself; instead, he alleged that

“[d]efendants misapplied [the policy] as to what

depicts actual ‘sexual conduct’ and ‘obscene material.’”

Pet. App. 34a ¶ 33. In fact, he stated that he sought

16

damages to deter future officials’ misapplications and

encourage officials to “comply with policies.” Id.

Both Petitioner’s objection to the report and

recommendation and his appellate briefs reiterated

this limited focus on the application of the policy to

the medical textbooks. See, e.g., ECF No. 17 at 3

(medical textbooks were “improperly labeled” and

rejected), 5 (rejection of textbooks violated First

Amendment), 8–9 (no reasonable relationship

between “censorship of . . . medical textbooks needed

to prepare a defense” and legitimate security

interests); Appellant’s Br. at 28 (“County jail officials

impermissibly labeled the medical textbooks as

‘obscene materials’ contrary to federal law to refuse

the delivery of 1st Amendment materials.”).

Petitioner explained that the district court had

“disregarded” the crucial questions posed by

Petitioner’s complaint: “Are these medical textbooks

‘obscene’ materials? And are they protected under the

First Amendment?” Reply Br. at 4. Throughout the

litigation, Petitioner was singularly focused on the

rejection of his medical textbooks.

Despite this clear focus on the specific censorship

of Petitioner’s publications, the court of appeals’

decision was framed explicitly in terms of the validity

of the policy. The court described its task as

“determin[ing] the reasonableness of a regulation”

and held that the “regulation prohibiting . . . obscene

material was reasonable.” Pet. App. 4a–5a. Having

found the sexual content regulation facially valid, the

court of appeals’ decision, like the district court

opinion, made no additional inquiry into the

application of the regulation to Petitioner’s

17

publications. Pet. App. 5a; see also Pet. App. 18a. That

decision was clearly wrong.

D.

Review Is Important In This Case.

Review is warranted because the court of appeals’

decision has troubling implications.

First, even where a policy is facially valid, it may

be applied in a manner that violates the First

Amendment. The court of appeals’ approach in this

case would allow censorship whenever prison staff cite

a valid policy to justify an arbitrary decision. Such an

outcome would alter the balance struck in

Thornburgh.

Indeed, the existence of meaningful review of

specific censorship decisions—by both jailers and

courts—was essential to the outcome in Thornburgh.

The Court was “comforted” by the operation of the

BOP’s regulations on their face, because the

regulation entrusted significant discretion to the

prison

warden

to

make

“individualized”

determinations. 490 U.S. at 416. This allowance for

broad discretion dovetailed with the understanding

that courts would still exercise judicial review of

specific rejected publications on an as-applied basis.

Id. at 417 n.15. Although the Court rejected the

prisoners’ complaints about arbitrary enforcement of

rules in challenging the regulation in toto, the Court

underscored that challenges to arbitrary enforcement

were properly directed to “the adequacy of the

regulations as applied.” Id. The availability of

meaningful as-applied challenges made possible the

Court’s determination that a highly discretionary

censorship policy provided an “acceptable balance” of

prison and prisoner interests. Id. Without this safety

18

valve of individualized challenges, Thornburgh’s

balance of interests is itself called into question.

Second, the conflation of as-applied and facial

challenges in the decision below has another

concerning effect: it can lead a court to overlook the

gravamen of a plaintiff’s case, when, as here, the

unconstitutional conduct does not arise from the

policy itself. Whether or not the jail’s policy is at fault,

Petitioner alleged that a decision in excess of the

policy harmed him. See Pet. App. 31a ¶ 24 (alleging

“improper” application of the censorship policy); Pet.

App. 34a ¶ 33 (seeking to enforce compliance with

policies). In Petitioner’s situation, a court that

singularly focuses on the facial validity of a policy

blinds itself to the real theory of the case.

This issue was squarely presented and passed on

below. Petitioner plainly sought relief tailored to the

jail’s denial of his particular publications, not the

policy as a whole. See supra Part I.C. Petitioner

expressly raised the district court’s “disregard[]” of the

specific as-applied challenge that was stated in his

complaint. See Reply Br. at 4. Yet, the court of appeals’

decision examined the reasonableness of the jail policy

in toto. This question is ripe for review and reversal.

II.

This Case Warrants Summary Reversal.

This case is an appropriate candidate for summary

reversal. This is the rare case calling for that special

remedy: “[T]he law is settled and stable, the facts are

not in dispute, and the decision below is clearly in

error.” Schweiker v. Hansen, 450 U.S. 785, 791 (1981)

(Marshall, J., dissenting).

As explained above, the court of appeals’ error is

clear and ignores well-settled law. See supra Part I.A–

19

I.C. Its decision is fundamentally at odds with the

longstanding rule of Thornburgh, which mandates

careful attention to the actual application of even

facially constitutional inmate speech regulations. The

decision was also utterly unnecessary, ranging far

beyond the limited as-applied inquiry that

Petitioner’s complaint and briefing called for.

The procedural posture of this case provides a

further reason for summary reversal. The district

court dismissed Petitioner’s case sua sponte at an

early screening stage pursuant to 28 U.S.C. § 1915A.

As a result, Respondents never answered Petitioner’s

complaint, moved to dismiss, or entered a single piece

of record evidence. That the court below undertook

such a broad analysis on such a bare record is itself

troubling. See Neitzke v. Williams, 490 U.S. 319, 329–

30 (1989) (noting screening-stage sua sponte dismissal

deprives

plaintiffs

of

ordinary

“procedural

protections” of Fed. R. Civ. P. 12(b)(6)). But it also

simplifies the Court’s analysis: the facts of this case

come exclusively from Petitioner’s complaint.

What is more, this is an extreme case of

censorship. At bottom, jail officials denied

Petitioner—a pretrial detainee—medical textbooks he

needed to prepare his defense. And the officials

adopted a reason—that the medical textbooks

contained “obscene” material—that this Court has

repeatedly rejected. Medical textbooks have always

been beyond the pale for censors. In its seminal

obscenity decision, Miller v. California, 413 U.S. 15

(1973), this Court was clear that “medical books for

the education of physicians and related personnel

[that] necessarily use graphic illustrations and

descriptions of human anatomy” were not obscene. Id.

20

at 26. In New York v. Ferber, 458 U.S. 747 (1982), the

Court worried that “medical textbooks” would “fall

prey to” the law at issue. Id. at 773. In Ashcroft v.

ACLU, 542 U.S. 656 (2004), Justice Breyer found it

inconceivable that a website serving as a “resource for

obstetrics [and] gynecology” could fall within the

statute’s “no serious value” or “prurient interest”

requirements. Id. at 680 (Breyer, J., dissenting). In

this case, that very absurdity—censorship of medical

textbooks as obscene or explicit—was affirmed

because the court of appeals disregarded Petitioner’s

as-applied challenge.

For these reasons, summary reversal is an

appropriate remedy.

CONCLUSION

This Court should reverse and remand with

instructions to order a response to the complaint in

the district court. In the alternative, this Court should

grant plenary review.

21

Respectfully submitted,

DAVID M. SHAPIRO

Counsel of Record

RODERICK & SOLANGE MACARTHUR JUSTICE CENTER

NORTHWESTERN PRITZKER SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

david.shapiro@law.northwestern.edu

JOSHUA FREIMAN

RODERICK & SOLANGE MACARTHUR JUSTICE CENTER

718 7th Street NW

Washington, DC 20001

(202) 869-3434

Attorneys for Petitioner