IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
PRISON LEGAL NEWS,
Plaintiff,
v.
NORTHWESTERN REGIONAL JAIL
AUTHORITY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

9/30/2019
s/ J. Vasquez

Civil Action No. 5:15-cv-00061
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
This case involves constitutional challenges brought by publisher Prison Legal News
(PLN) after materials it sent to prisoners at the Northwestern Regional Adult Detention Center
(NRADC) were sent back to it at PLN’s expense with a notation that they had been refused, per jail
policy. The named defendants are the Northwestern Regional Jail Authority (NRJA), which runs
NRADC, jail superintendent James F. Whitley, and Captain Clay Corbin. Whitley was
responsible for operations at the jail and approved the policy that PLN challenges; Corbin was the
jail officer tasked with implementing the policy.
After this suit was filed, the parties engaged in settlement discussions. They subsequently
provided to the court two consent decrees, both of which were entered by the court. Those orders
effectively granted the injunctive relief sought by PLN in this suit.
On September 29, 2017, the court issued a Memorandum Opinion and an Order on
cross-motions for summary judgment. (9/29/17 Mem. Op., Dkt. No. 89; 9/29/17 Order, Dkt. No.
90.) As a result of that ruling, the remaining issues to be resolved were whether PLN could
prevail on its First Amendment claim against NRJA and the compensatory damages, if any, that
PLN is entitled to as to its First Amendment claim in Count I and its due process claim in Count II.

Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 1 of 15 Pageid#: 1393

(9/29/17 Mem. Op. 28.) The court also dismissed Corbin from the case. (9/29/17 Order.)1 In a
later order, the court granted summary judgment for defendants on PLN’s equal protection claim.
(11/20/18 Mem. Op. & Order, Dkt. No. 101.)
On November 29, 2018, the court held a bench trial, after which the parties submitted
proposed findings of fact and conclusions of law. Upon consideration of those submissions and
based on the evidence and testimony presented at trial, the court issues the following ruling.
I. BACKGROUND2
PLN is a publishing project of the non-profit Human Rights Defense Center (HRDC).
HRDC’s Executive Director, Paul Wright, founded PLN as a prisoner within the Washington
Department of Corrections. The core of PLN’s mission is public education, advocacy, and
outreach to assist prisoners who seek legal redress for infringements of their constitutional and
human rights.
PLN publishes an award-winning, 72-page monthly magazine entitled Prison Legal News.
Prison Legal News provides information about legal issues affecting prisoners, including access to
courts, disciplinary hearings, prison and jail conditions, excessive force, and religious freedom.
In addition to Prison Legal News, PLN publishes and distributes legal and self-help softcover
books, including: (a) The Habeas Citebook: Ineffective Assistance of Counsel (Habeas Citebook),
which describes the procedural and substantive complexities of Federal habeas corpus litigation;
(b) Protecting Your Health and Safety (PYHS), which explains the basic rights of U.S. prisoners
with regard to communicable diseases, abuse, and other health and safety related issues; and (c)

1
Superintendent Whitley was dismissed from PLN’s First Amendment claim. NRJA remains the only
defendant as to First Amendment liability. Superintendent Whitley remains a defendant as to PLN’s due process
claim.

2
The following factual background constitutes the court’s findings of fact under Rule 52(a) of the Federal
Rules of Civil Procedure. See Fed. R. Civ. P. 52(a)(1) (“In an action tried on the facts without a jury or with an
advisory jury, the court must find the facts specially and state its conclusions of law separately.”).

2
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 2 of 15 Pageid#: 1394

Prisoner’ Guerilla Handbook to Correspondence Programs in the United States & Canada
(“PGH”), a guide book to high school, vocational, paralegal, law, college and graduate courses
available to prisoners. PLN has a practice of mailing free copies of its publications to inmates it
believes may be interested in its materials. PLN also obtains inmate mailing lists from other
organizations.
NRJA is a jail authority created by the City of Winchester, Virginia, and the counties of
Clarke, Frederick, and Faquier. NRADC is the name of the detention facility under the authority
of, and operated by, NRJA and located in Frederick County, Virginia. As of late November 2016,
NRADC had approximately 650 inmates. In fiscal year 2014, NRADC averaged 580 inmates.
In fiscal year 2015, NRADC averaged 638 inmates. While its population fluctuates,
approximately 50% of the prisoners at the NRADC are pretrial detainees.
James Whitley has been the superintendent at the jail since 2012 and is the final decision
maker with respect to all operational issues at the jail. Clay Corbin is the former Captain of
Security at NRADC. In that role, Corbin collaborated with Whitley to establish security policies
at the jail, including the institution of the former mail policy at issue in this case.
Prior to February 26, 2014, NRADC had a policy which allowed inmates to receive books,
magazines, and other periodicals through the mail. Superintendent Whitley reexamined
NRADC’s policy after receiving numerous reports that people were tampering with mailings sent
to the jail in order to hide contraband. In addition to inmates using books, magazines, and
periodicals to smuggle contraband, Whitley was concerned about the number of books, magazines,
and periodicals that inmates were accumulating in their cells. NRADC expended a great amount
of resources reviewing these items, and cell searches took much longer because of the amount of
material inmates accumulated.

3
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 3 of 15 Pageid#: 1395

In February 2014, Superintendent Whitley instituted a new policy, effective April 1, 2014,
that prohibited prisoners from receiving books or magazines “through the mail, directly from the
publisher, or from a distribution source.” Prior to the April 1, 2014 policy, inmates could possess
one religious book, two educational books, and up to five additional soft-covered books. Inmates
could also possess an unlimited number of magazines, although certain periodicals were altogether
banned. The new policy stated that books and magazines would be provided by the programs
section through the library cart and marked as property of NRADC. Each inmate would be
allowed one book at a time, with an exception for religious or educational or educational books.
Additionally, the carts would contain multiple copies of five specific magazines.
The reasons given by defendants for the new policy were that it was an effort to limit
contraband (such as drugs) from coming into the jail, and to reduce the amount of personal
property in a cell for purposes of cell searches. No contraband had ever been found in books,
magazines, or other periodicals sent by a publisher or distributor. There were instances of
contraband having been introduced into the jail through visits, letter correspondence, and/or work
release. Defendants did not curtail visitation, letter correspondence, or work release.
Defendants concede that greater prison resources are needed to monitor prisoner visitations than
would be required to review incoming books and magazines for contraband, yet it did not
eliminate visitations out of a concern that it would be unlawful to do so.
NRADC invested time and money expanding its library, ordering magazines directly from
publishers, and rotating them in and out of the book carts each month. NRADC also purchased
over one thousand new books following implementation of the new policy. Staff took inmate
suggestions for magazines and books for the library cart. No inmate ever requested PLN
publications be included on the library cart.

4
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 4 of 15 Pageid#: 1396

On or about April 1, 2014, counsel for PLN wrote a letter to Superintendent Whitley
objecting to the new policy and asserting that it violated the First Amendment, with citations to
legal authority. The letter did not indicate that counsel represented PLN specifically. Whitley
emailed back that he would examine the issue. No further response was received from Whitley,
as he forgot about the letter and did not discuss it with anyone.
In total, PLN mailed 236 magazines and books to individual prisoners at the NRADC
subsequent to the implementation of the new April 1, 2014 policy. PLN had at least one paid
prisoner subscriber, Mary Jenkins, who was in and out of defendants’ custody in 2014. As a
result of the policy banning publications, Ms. Jenkins did not receive PLN’s publications. Wright
testified that while Ms. Jenkins was the only paid subscriber identified at his deposition, he
believed there were more paid subscribers at the facility during the prior mail policy.
Some of PLN’s books and magazines were mailed back to PLN through the Return to
Sender service of the United States Postal Service. From October 2014 to November 4, 2015, at
least 170 issues of Prison Legal News were rejected by defendants.3 From October 2014 to
November 4, 2015, at least 16 copies of The Habeas Citebook were rejected by defendants. In
November 2015, at least 25 copies of PYHS were rejected by defendants. From October 2014 to
March 2016, at least three copies of PGH were rejected by defendants. A total of 44 books were
returned to PLN. Many of the returned magazines and books bore the stamp “Against Jail
Policy,” indicating that defendants had rejected delivery of that mail item pursuant to the new
April 1, 2014 policy. Even though PLN did not receive back every magazine or book that was
mailed to the jail in that timeframe, defendants do not deny that every publication sent from PLN
to prisoners at the NRADC between October 2014 and March 2016 would have been censored.
PLN is the only publisher and distributor of The Habeas Citebook, PYHS, and PGH providing
3

The purchase price of a single issue of Prison Legal News is $5.00.

5
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 5 of 15 Pageid#: 1397

prisoners at the NRADC with these books.4
In February 2016, the parties entered a consent order providing that senders of mail receive
notice and an opportunity to be heard should their materials be rejected from being delivered to
their intended prisoner recipients. In March 2016, the parties entered a consent order that allows
prisoners to order publications through the mail from publishers, subject to reasonable inspection
and reasonable limitations on the number of publications permitted. Subsequent to the entry of
the consent orders, defendants initially limited the number of books and magazines a prisoner
could have in their cell to reduce the time needed for cell searches or other perceived burdens on
prisoner resources. Defendants, however, soon thereafter increased the number of magazines and
books a prisoner could have in his cell because the added time to review publications for
inappropriate material (i.e. sexual images) or contraband was determined to be only a minimal
burden on jail or staff resources. According to Corbin, the consent order allowing deliveries of
publications to prisoners was a win/win situation, serving both prisoners and the jail, and the
minimal additional work involved in reviewing publications is warranted and does not create a
serious problem with cell searches. Notwithstanding a “fluke” incident involving an item of
contraband inadvertently left by the previous owner of a used book, the jail has never experienced
security threats from materials originating from a publisher or distributor.

Defendants believe

that it is important for prisoners at the jail to have access to reading material.
Wright, HRDC’s executive director, testified that defendants’ April 2014 policy restricted
PLN’s “ability to communicate with our target audience.” Wright also testified that PLN’s
resources were diverted in order to investigate the rejection of its materials by defendants and in
order to litigate this case, and PLN will need to expend resources at the end of this litigation to
4

The purchase price for The Habeas Citebook is $49.95, $10.00 for PYHS, and $49.95 for PGH. PLN’s
shipping and handling costs are $2.48 for The Habeas Citebook, $6.00 for PYHS, and $2.48 for PGH.


6
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 6 of 15 Pageid#: 1398

inform the community about defendants’ unconstitutional policy and eradicate its effects.
Finally, Wright testified that prisoners were not going to subscribe to PLN’s magazines if they
were not going to be able to get it.
II. DISCUSSION
A. First Amendment Claim
This issue will turn on the court’s application of the four-factor test in Turner v. Safley, 482
U.S. 78 (1987). That is, to evaluate the constitutionality of a prison policy that impacts the First
Amendment rights of prisoners (or publishers communicating with them), the court must look to
the following factors:
(1) whether there is a “valid, rational connection” between the
prison regulation or action and the interest asserted by the
government, or whether this interest is “so remote as to render the
policy arbitrary or irrational”; (2) whether “alternative means of
exercising the right . . . remain open to prison inmates” . . . ; (3) what
impact the desired accommodation would have on security staff,
inmates, and the allocation of prison resources; and (4) whether
there exist any “obvious, easy alternatives” to the challenged
regulation or action, which may suggest that it is “not reasonable,
but is [instead] an exaggerated response to prison concerns.”
Lovelace v. Lee, 472 F.3d 174, 200 (4th Cir. 2006) (quoting Turner, 482 U.S. at 89–92);
Thornburgh v. Abbott, 490 U.S. 401, 404 (1989) (holding that prison regulations affecting a
publisher’s ability to send material to prisoners are valid if they are reasonably related to legitimate
penological interests and directing courts to apply the Turner factors in this context). The
Supreme Court has since clarified that the first factor must be satisfied for the regulation to be
upheld. Shaw v. Murphy, 532 U.S. 223, 229–30 (2001) (explaining the first Turner factor and
noting that “[i]f the connection between the regulation and the asserted goal is ‘arbitrary or
irrational,’ then the regulation fails, irrespective of whether the other factors tilt in its favor”); see
also Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (describing the first factor as an
7
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 7 of 15 Pageid#: 1399

“‘element’ because it is not simply a consideration to be weighted but rather an essential
requirement”).
When applying the Turner factors, the court must “respect the determinations of prison
officials,” United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991), and “must accord deference to
the officials who run a prison, overseeing and coordinating its many aspects, including security,
discipline, and general administration.” Lovelace, 472 F.3d at 199. That is, the court must
accord “substantial deference to the professional judgment of prison administrators, who bear
significant responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126,
132 (2003). As the court explained in its memorandum opinion denying cross-motions for
summary judgment on this issue, “analyzing First Amendment claims challenging prison
regulations is a highly fact-specific exercise.” Prison Legal News v. Nw. Reg’l Jail Auth., Civil
Action No. 5:15-cv-00061, 2017 WL 4415659, at *5 (W.D. Va. Sept. 29, 2017).
In its summary judgment opinion, the court found that no reasonable fact finder could
conclude that the first factor––a rational connection between the regulation and the interest
asserted––is not satisfied. Id. Now sitting as a fact finder, upon consideration of the evidence
presented at trial, the court finds that there is a rational connection between NRADC’s April 1,
2014 policy and the interests asserted. The reasons advanced for implementing the policy were to
control contraband and to reduce the amount of inmate personal property. “Certainly, the April
2014 policy was rationally connected to the goal of reducing inmate personal property. It
significantly limited the number of books an inmate could have (to only pre-approved religious or
educational books), and restricted prisoners altogether from owning or possessing magazines or
taking them into their cells.” Id. PLN argues that the consent order that now allows deliveries of

8
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 8 of 15 Pageid#: 1400

publications to prisoners has not created a serious problem with cell searches. In hindsight, this
may have proven true, but due regard to the professional judgment of jail administrators leads the
court to conclude that limiting the amount of property kept by inmates in their cells is a legitimate
penological interest, and the April 2014 policy was rationally related to that interest. Regarding
contraband, PLN argues that items sent directly from publishers are unlikely to contain drugs.
See HRDC v. Sw. Va. Reg’l Jail Auth., Case No. 1:18CV00013, 2018 WL 3239299, at *5 (W.D.
Va. July 3, 2018). But as the court explained in its summary judgment ruling, and as the trial
record shows, Superintendent Whitley received numerous reports that people were tampering with
mailings sent to the jail in order to hide contraband. “Allowing only a limited number of the same
type of magazine, addressed to the jail rather than to any individual prisoner, is rationally
connected to the security goal of preventing periodicals from being tampered with to introduce
contraband.” Prison Legal News, 2017 WL 4415659, at *5. The absence of evidence indicating
that contraband has been introduced to NRADC in this manner does not preclude a finding that the
policy is rationally related to the prison’s interest in controlling contraband. See id. at *5 n.4
(“Although PLN emphasizes that the reports were ‘unverified,’ it offers no authority for the
proposition that jail officials must have concrete evidence that a particular problem has occurred.
Other courts have rejected such a requirement.”) (citing Prison Legal News v. Jones, No.
4:12-cv-239, 2015 WL 12911752, at *16 (N.D. Fla. Oct. 5, 2015)).
Also in its summary judgment opinion, the court found that the second factor––whether
there is an alternative means for PLN to exercise its rights––clearly favors PLN. Id. at *6. The
court now finds the same. The policy left alternative means open to inmates to exercise their First
Amendment rights, but “it did not leave any such means open to PLN. Indeed, the policy was
effectively a complete ban on any prisoner being able to obtain PLN publications, whether through

9
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 9 of 15 Pageid#: 1401

a subscription or a gift subscription.” Id. Further, the alternative offered to inmates was access
to books from a library cart and copies of five different magazines chosen by NRADC, none of
which are PLN. “Thus, it appears that PLN is being denied total access to the prisoners at the jail
and does not have an adequate alternative method for reaching prisoners.” Id.
NRADC contends that PLN could have provided NRADC with a subscription to make
copies available for inmates. Also, PLN could have directly corresponded with inmates to make
them aware of their publications, and the inmates, in turn, could have asked NRADC to purchase a
subscription or a book for the library carts. However, there is no evidence that the option to
request a subscription was known by or communicated to the prison population. Moreover,
Prison Legal News is the primary conduit through which PLN communicates its written speech
with prisoners. This right exists independent of the prisoner’s right to receive such information.
See Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011) (“A First Amendment interest in
distributing and receiving information does not depend on a recipient’s prior request for that
information.”). For these reasons, the alternative means factor favors PLN.
The third Turner factor addresses the impact on security, staff, inmates, and the allocation
of resources. Turner, 482 U.S. at 90. Prior to implementation of the April 2014 policy, NRADC
expended a great amount of resources reviewing periodicals, books, and magazines that the
inmates received. Cell searches were also lengthy given the amount of material inmates
accumulated. Similarly, the consent decree policy requires more work up front to review
incoming publications. There were costs associated with the April 2014 policy, however, as
NRADC spent a large amount of money to purchase books and magazines to make them available
to inmates. After the entry of the consent orders, defendants initially limited the number of books
and magazines a prisoner could have in his cell, but later increased that amount because they found

10
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 10 of 15 Pageid#: 1402

that the added time to review publications for inappropriate material was only a minimal burden on
jail or staff resources. Defendants also concede the importance of reading material for inmates,
the availability of which was limited by the April 2014 policy. On balance, the court finds that the
third factor favors PLN.
Under the fourth Turner factor, PLN bears the burden of providing an easy alternative that
“fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.”
Turner, 482 U.S. at 91. The consent order, the operation of which was described by Corbin as a
“win/win” for prisoners and the jail, is such an accommodation. (See Pl.’s Proposed Findings of
Fact and Conclusions of Law, ¶ 39, Dkt. No. 115.)
For these reasons, the court finds that PLN has demonstrated that defendants’ policy of
banning all books and magazines mailed to prisoners at NRADC violated its First Amendment
rights.
B. Damages
The “purpose of § 1983 is to compensate a plaintiff whose constitutional rights have been
violated; to recover compensatory damages for such violations, a plaintiff must suffer actual,
demonstrable injury.” Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996). Section
1983 creates “a species of tort liability,” Carey v. Piphus, 435 U.S. 247, 253 (1978), and therefore,
“when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages
is ordinarily determined according to principles derived from the common law of torts.”
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986). “To that end, compensatory
damages include not only out-of-pocket loss and other monetary harms, but also such injuries as
‘impairment of reputation . . . , personal humiliation, and mental anguish and suffering.” Id. at
307. When a plaintiff “seeks compensation for an injury that is likely to have occurred but

11
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 11 of 15 Pageid#: 1403

difficult to establish, some form of presumed damages may possibly be appropriate. In those
circumstances, presumed damages may roughly approximate the harm that the plaintiff suffered
and thereby compensate for harms that may be impossible to measure.” Stachura, 477 U.S. at
310–11. By contrast, damages based on “the abstract ‘value’ or ‘importance’ of constitutional
rights are not a permissible element of compensatory damages.” Id. at 310. Absent proof of
actual injury or compensatory damages, the court is limited to awarding a plaintiff nominal
damages. See Farrar v. Hobby, 506 U.S. 103, 112 (1992); Williams v. Griffin, 952 F.2d 820, 825
n.2 (4th Cir. 1991).
The measure of damages under Section 1983 “must be based on the interests designed to be
protected by the right that was violated; it is not a simple matter of applying damage formulas from
tort law, or quantifying out-of-pocket expense.” Piver v. Pender Cnty. Bd. of Educ., 835 F.2d
1076, 1082 (4th Cir. 1987) (citing Carey, 435 U.S. at 258). An award of substantial
compensatory damages, as opposed to nominal damages, must be “proportional to the actual injury
incurred.” Id. Injury to a protected First Amendment interest, for example, can constitute
compensable injury “wholly apart from any ‘emotional distress, humiliation and personal dignity,
emotional pain, embarrassment, fear, anxiety and anguish’ suffered by plaintiffs.” Id. (quoting
Stachura, 477 U.S. at 315 (Marshall, J., concurring)). However, such an injury can only be
compensated with substantial damages to the extent that it is “reasonably quantifiable;” damages
should not be based on the “so-called inherent value of the rights violated.” Piver, 835 F.2d at
1082 (citing Stachura, 477 U.S. at 315 (Marshall, J., concurring)).
1. First Amendment damages
a. Cost damages
PLN requests “cost damages” in the amount of $2,301.17. PLN arrives at this amount by

12
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 12 of 15 Pageid#: 1404

taking the retail price of the publications, adding the shipping and handling costs, and multiplying
that amount by the number of returned mailings. Unless PLN is selling its publications for
exactly as much as they cost to make, retail price is not a reliable indicator of the actual cost of
PLN’s publications. Even if it were, most of the items were sent as unsolicited gifts, and most of
those items were returned to PLN. Aside from shipping costs (set forth below), this basically
placed PLN in the same position it would have been if the violation had never occurred. The
returned books or magazines could have been sent or sold to inmates at a different jail or prison.
Ultimately, because PLN did not provide any hard cost calculations, the court rejects the retail
price aspect of PLN’s proposed cost damages as unreliable. The court will, however, award
shipping and handling costs as follows:
Type of publication
The Habeas Citebook
PYHS
PGH

Shipping and handling
costs
$2.48
$6.00
$2.48

Number censored by
jail
16
25
3

Cost damages
$39.68
$150.00
$7.44
Total: $197.12

b. “Presumed” damages
PLN requests presumed damages of $200 for each of the 236 items5 mailed to and rejected
by defendants, for a total of $47,200.00. As noted above, presumed damages may “roughly
approximate the harm that the plaintiff suffered and thereby compensate for harms that may be
impossible to measure.” King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015) (quoting Stachura,

5

There is some confusion in the record of this case about the number of returned or “censored” books and
magazines. PLN’s proposed findings of fact state that it “mailed 236 magazines and books to individual prisoners at
the NRADC subsequent to the implementation of the new April 1, 2014 policy.” (Pl.’s Proposed Findings of Fact and
Conclusions of Law, ¶ 24.) The stipulated breakdown of “rejected items” only totals 225 items. (Id. ¶¶ 29–30.)
PLN requested “cost damages” above based on the stipulated breakdown, but now reverts to 236 items for presumed
damages. Defendants do not dispute the use of either number, and the court also notes that defendants do not deny
that every publication sent from PLN to prisoners at the NRADC between October 2014 and March 2016 would have
been censored. (Id. ¶ 33.) For purposes of this analysis, therefore, the court will use 236 items as the basis for its
calculation.

13
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 13 of 15 Pageid#: 1405

477 U.S. at 311).
PLN argues that it is entitled to damages due to the lost opportunity to communicate with
its intended audience of prisoners, diversion of resources, frustration of mission, and reputational
damage. The court understands that damages in this context can be difficult to measure, but PLN
offers little more than speculative testimony in its effort to “roughly approximate” the harm that
was suffered. For example, PLN states that defendants’ actions caused it to divert time and
resources to investigate the nature and extent of defendants’ policies and censorship practices, as
well as to litigate the matter before the court. PLN offers no way to measure or quantify the
extent of the diversion. Similarly, PLN argues that it will need to expend resources to educate the
community and eradicate the adverse effects of defendants’ unconstitutional actions, but the extent
of such efforts are left unstated.
That said, the court can grasp that each rejected item––all 236 of them––constitutes a
separate First Amendment violation and represents, as PLN states, a lost opportunity to
communicate with its intended audience of prisoners. These lost opportunities strike at the core
of PLN’s mission to educate, inform, and assist prisoners. The question is whether PLN is
entitled to anything more than nominal damages for these violations. Instead of $200 per item,6
which the court considers far too high, the court will award $2.00 per item, for a total award of
$472.00. This amount, twice as much as the typical nominal damage award of $1.00, combined
with the multiplying effect of so many violations, constitutes a rough approximation of the damage
suffered by PLN.

6
PLN cites cases involving awards between $500 and $1,500 for each piece of mail unlawfully blocked by
jail authorities, but these cases are distinguishable because the awards included punitive damages, and the court
previously held that PLN is not entitled to punitive damages in this case. See, e.g., Williams v. Brimeyer, 116 F.3d
351, 352 (8th Cir. 1997) (upholding jury award of $500 in punitive damages and $1.00 in nominal compensatory
damages). Additionally, in the cases awarding more than nominal damages, the amount of the award for
compensatory damages was either not at issue on appeal or subject to little or no discussion. See id. at 880.

14
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 14 of 15 Pageid#: 1406

2. Due process damages
In its summary judgment ruling, the court found that PLN’s due process rights were
violated pursuant to case law establishing that “publishers are entitled to notice and an opportunity
to be heard when their publications are disapproved for receipt by inmate subscribers.” Montcalm
Publ’g Co. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996); Prison Legal News, 2017 WL 4415659, at
*12. PLN requests $50 per item in nominal damages for each rejected item, but the court once
again considers that amount too high. Instead, for the same reasons stated in the previous section,
the court will award $2.00 per item, for a total award of $472.00.
III. CONCLUSION
For the above-stated reasons, the court concludes that NRADC’s April 1, 2014 policy
prohibiting prisoners from receiving books or magazines “through the mail, directly from the
publisher, or from a distribution source” violated PLN’s First Amendment rights.
The court further finds that PLN is entitled to $669.12 in compensatory damages for the
First Amendment violation: $197.12 in cost damages, and $472.00 in presumed damages.
The court also finds that PLN is entitled to $472.00 in compensatory damages for the due
process violation.
Finally, the court finds that PLN is entitled to a declaration that NRADC’s April 1, 2014
policy violated PLN’s rights under the First and Fourteenth Amendments.
The court will enter an appropriate order.
Entered: September 30, 2019.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

15
Case 5:15-cv-00061-EKD-JCH Document 122 Filed 09/30/19 Page 15 of 15 Pageid#: 1407