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Prison Legal News v. Sheriff Cox (NV DOC), Amended Complaint 2013

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Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 1 of 8

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Staci Pratt
Nevada Bar No. 12630
pratt@aclunv.org
Allen Lichtenstein
Nevada Bar No. 3992
allenaclunv@lvcoxmail.com
American Civil Liberties Union
601 S. Rancho Dr., Suite B-11
Las Vegas, NV 89106
Cooperating Attorneys for the
ACLU of Nevada

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Lance Weber
Missouri Bar No. 49055
lweber@humanrightsdefensecenter.org
Human Rights Defense Center
General Counsel & Litigation Director
PO Box 1151
Lake Worth, FL 33460
(Pro Hac Pending)
Ernest Galvan
California Bar No. 196065
EGalvan@rbgg.com
Rosen Bien Galvan & Grunfeld
315 Montogomery Street, 10th Floor
San Francisco, CA 94104
(Pro Hac Pending)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER, a
Washington Nonprofit Corporation,
Plaintiff,
v.

Case No.: 3:13-cv-00346
AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL

JAMES GREG COX (in his official capacity) as
Director of Nevada Department of Corrections;
E.K. MCDANIEL (in his official capacity), as
Deputy Director of Operations at NDOC; and
DOES I-XXV,
Defendants.
Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, to enjoin Nevada Department of
Corrections (NDOC), formerly Nevada Department of Prisons, from censoring, in violation of the

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 1
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 2 of 8

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Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, to enjoin Nevada Department of

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Corrections (NDOC), formerly Nevada Department of Prisons, from censoring, in violation of the

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First Amendment, the receipt of the journal PRISON LEGAL NEWS by NDOC prisoners in the State

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of Nevada. Plaintiff also bring this action to have NDOC’s ban on “return address labels” as
embodied in 750.03(3)(D); ban on publications not from “approved vendors or publishers” as

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embodied in AR 750.08(1); and the requirement that all books be sent using First Class Mail as
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embodied in Section 8 of AR 750.08 declared unconstitutional on their face and as applied. Plaintiff

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also seeks declaratory and permanent injunctive relief pursuant 28 U.S.C. § 2201(a) prohibiting

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NDOC from engaging in further unlawful censorship of books, magazines and other correspondence

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from PRISON LEGAL NEWS, as well as damages.
JURISDICTION

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1.

This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988, as well as the First

and Fourteenth Amendments of the United State Constitution. Jurisdiction is founded on 28 U.S.C.
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§ 1331 and § 1343 and the aforementioned statutory and constitutional provisions. The Court has
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jurisdiction to grant declaratory relief pursuant to 28 U.S.C. § 2201 and FRCP 57.

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VENUE
2.

Venue lies properly in this Court pursuant to 28 U.S.C. § 1391(b).

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PARTIES

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3.

Plaintiff PRISON LEGAL NEWS (“PLN”), is and at all times relevant hereto is a

wholly owned publishing project of the HUMAN RIGHTS DEFENSE CENTER, a 501(c)(3)
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nonprofit corporation with offices in Lake Worth, Florida. PLN publishes PRISON LEGAL NEWS,
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a monthly journal of corrections, news, and analysis. PLN has approximately 7,000 subscribers in
the United States and abroad, including prisoners, attorneys, and judges.
4.

Defendant JAMES GREG COX is the Director of the Nevada Department of

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Corrections (“NDOC”), a State agency that manages the correctional facilities within the State of

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Nevada. He is ultimately responsible for the promulgation and enforcement of NDOC policies and

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procedures. Mr. COX is sued in his official capacity for prospective injunctive relief.
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Defendant E.K. MCDANIEL is the Deputy Director of Operations at NDOC.

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Defendant JACKIE CRAWFORD is the former Director of NDOC. She is sued in

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both her official and individual capacities.

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 2
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 3 of 8

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Defendant ROBERT BAYER is the former Director of Nevada Department of

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Corrections (at that time Nevada Department of Prisons). Mr. Bayer is sued in both his official and

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individual capacities.

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The true identities of Defendant DOES I-XXV, are currently unknown to Plaintiff,

who therefore sue said Defendants by such fictitious names. Plaintiff, based upon knowledge and
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information, reasonably believe and therefore allege that each of the Defendants designated herein as
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DOES I-XXV may be responsible in some manner for events and happenings herein referred to; that

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Plaintiffs will ask leave to amend this Complaint to insert the true name(s) of said Defendant(s) when

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the same have been ascertained by Plaintiff together with appropriate factual allegations and to join

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such Defendant(s) as and when they become known in this action in their true capacities.

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9.

Plaintiffs have been forced to incur reasonable attorney’s fees and costs in pursuit of

this action, including, but not necessarily limited to, those contemplated by 42 U.S.C. § 1988.

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FIRST CLAIM FOR RELIEF
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42 U.S.C. § 1983

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Violation Of Publisher’s First and Fourteenth Amendment Rights

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Plaintiff hereby incorporate by reference all allegations contained in all numbered paragraphs

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of this Compliant as if set forth fully here.
10.

Plaintiff, PLN, is a wholly owned publisher project of HUMAN RIGHTS DEFENSE

CENTER, a 501(c)(3) non-profit corporation, originally organized under the laws of the State of
Washington in 1991. The purpose of the organization as stated in PLN’s Articles of Incorporation,

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Article 3, Part 6 is: “to educate prisoners and the public about the destructive nature of racism,
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sexism, and the economic and social costs of prison to society.”
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In 2000, Plaintiff, as represented by the American Civil Liberties Union of Nevada

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(“ACLUNV”), began litigating in order to correct unlawful NDOC censorship practices. In Prison

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Legal News v. Crawford et. al., Plaintiffs successfully obtained a judgment and order enjoining

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NDOC from censoring Prison Legal News publications. See “Stipulation and Judgment/Order,”

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Case #: 3:00-CV-00373-HDM-RAM (D. Nev. 9/27/00) (Hereinafter “NDOC Consent Decree”).
Despite the NDOC Consent Decree, Defendants continue to censor mail from Prison Legal News

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using methods that are in violation of the decree and in violation of the United States Constitution.
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Beginning in 2010, Defendants, and each of them, and DOES I-XXV, have refused to

allow delivery of mail from PLN, including but not limited to, the publication PRISON LEGAL

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 3
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 4 of 8

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NEWS, to one or more of the prisoners under the control of NDOC, under policies and practices

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banning “address labels” and “envelope tape,” requiring publication be sent from “approved

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vendors,” and/or requiring mail be sent using first-class postage. Various prisons and institutions

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throughout the State of Nevada, including but not necessarily limited to, the Southern Desert
Correctional Center (SDCC), Ely State Prison (ESP), and Northern Nevada Correctional Center

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(NNCC) have adopted these policies and practices. This censorship and refusal to allow delivery of
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publications is occurring even though Defendants or persons who report to Defendants have

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previously approved these subscriptions to PRISON LEGAL NEWS, which Defendants now refuse to

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deliver.

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Issues of PRISON LEGAL NEWS that have been confiscated and/or discarded rather

than delivered to their prisoner subscribers include political speech, which is entitled to the highest
protection under the Constitution of the United States.
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Defendants’ refusal to allow delivery of PRISON LEGAL NEWS constitutes a

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violation of Plaintiff’s First Amendment rights, as made applicable to the State of Nevada through
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the Fourteenth Amendment of the United States Constitution.
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PRISON LEGAL NEWS is protected political speech and violates no prison policies

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nor regulations other than the alleged restrictions on “address labels” and “envelope tape,” “approved

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vendor” requirements, and requirements that publications must be sent using first-class postage.

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Defendants have refused to deliver or allow delivery of copies of PRISON LEGAL NEWS and books

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from PRISON LEGAL NEWS to prisoners at NDOC facilities who had subscribed to this
publication and/or who had ordered books from PLN, on the grounds that these publications contain

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“foreign substances such as stickers” and “return address labels,” pursuant AR 750.03(3)(7) and
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750.03(3)(D), respectively. These “adulterated mail” provisions have been used to prohibit delivery

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of mail from publishers such as PLN, who use printed return address and address labels for

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correspondence with individual inmates. PLN also uses mailing labels for materials sent directly

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from its office. Defendants’ refusal to deliver or allow delivery of publications from PLN to

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prisoners based on the presence of “address labels” or “envelope tape” fails to meet the

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reasonableness requirement for prison regulations impinging upon an inmate’s constitutional rights.
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The blanket prohibition on “address labels” and “envelope tape” unreasonably

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impinges on the rights of both PLN and those Nevada prisoners intended to receive its publications.
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The “address labels” and “envelope tape” ban is not rationally related to a legitimate and neutral
government objective. Upon information and belief, Amazon.com orders are permitted entry into

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 4
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 5 of 8

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NDOC facilities, and these ordered have address labels. This suggests that NDOC is not acting

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consistently and neutrally. Since Amazon.com does not deliver PRISON LEGAL NEWS, no viable

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alternatives are available for prisoners to receive PRISON LEGAL NEWS when orders from PLN

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publishers are prohibited. Accommodating the prisoners’ rights would have little to no impact on the
guards or other prisoners, given packages form Amazon.com containing labels are permitted. An

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easy alternative exists – prison personnel may remove the stickers of labels before delivery the
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publications to inmates.
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Additionally, NDOC’s requirement under AR 750.08(1), stating that all books “must

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come directly from approved vendors or publishers,” without specifying which entities are

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“approved,” violates the First Amendment rights of both the inmates and the publishers. According

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to mailroom reports, only one vendor, Amazon.com, has enjoyed an “approved” status. A single
source designated as the “approved vendor” is unconstitutional, since there exist no alternative means
of obtaining reading material from publishers such as PLN. Such a practice places a significant

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burden on publishers’ and inmates’ constitutional rights.
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Furthermore, Section 8 of AR 750.08, which states, “All books must be sent First

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Class Mail,” violates the First Amendment rights of both inmates and publishers. PLN conducts its

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activity as a non-profit organization, and therefore qualifies for the use of Standard A “non-profit

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organization rates” to circulate its periodical publication. These postage rates are substantially lower

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cost than first class mail. PLN also mails books to prisoners using the United States Postal Service’s

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Media Mail rates, a special rate available for books and educational materials, that is substantially
lower than the rates charged for First Class Mail. Rejecting core-protected speech solely due to postal

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service rate classifications is unconstitutional and unrelated to any legitimate penological interests.
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Plaintiff is entitled to a declaration that all regulations and/or instructions,

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administrative directives, institutional procedures, or policies on which Defendants base their refusal

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to deliver or allow delivery of mail from PLN to prisoners, only because Defendants characterize the

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publications or other mail as having “address labels” and/or “envelope tape,” the publications are not

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delivered from the only “approved vendor,” and/or the publications are not mailed using first-class

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postage, are unconstitutional. These policies and practices are unconstitutional as applied, in
violation of the First Amendment and Fourteenth Amendment, by and through 42 U.S.C. § 1983 and

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on their face. Plaintiff are entitled to a declaration that these policies and practices are
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unconstitutional.

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 5
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 6 of 8

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Plaintiff are entitled to an entry of an injunction prohibiting Defendants from refusing

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to process and deliver, or allow delivery of, mail from PRISON LEGAL NEWS to prisoners on the

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grounds that these publications have affixed “address labels” and/or “envelope tape,” are not

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delivered from a sole approved vendor, and/or are not delivered using first-class postage. Plaintiff
are entitled to an injunction permanently enjoining enforcement of these practices and policies.

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As a proximate and direct result of Defendants’ actions, Plaintiff has suffered

damages in an amount to be more fully enumerated at trial.

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SECOND CLAIM FOR RELIEF
42 U.S.C. § 1983, Fourteenth Amendment Procedural Due Process Violations

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Plaintiff hereby incorporates by reference all allegations contained in all numbered

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paragraphs of this Complaint as if set forth fully here.
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Since approximately September 1999, and continuing despite the NDOC Consent

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Decree issued in September 2000, Defendants have denied Plaintiff its right to due process under the
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Fourteenth Amendment of the United States Constitution by failing to provide Plaintiff notice and an

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opportunity to be heard when mail sent to Nevada prisoners, including but not limited to, the journal

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of PRISON LEGAL NEWS, is censored.

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23.

Defendants’ actions, as described above, also constitute a violation of Plaintiff’s civil

rights under 42 U.S.C. § 1983.
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The Plaintiff is entitled to a declaration that Defendants have violated the Fourteenth

Amendment to the United States Constitution and 42 U.S.C. § 1983 by refusing to notify PLN when
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books and publications it has mailed to prisoners have been confiscated and/or discarded rather than
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delivered to the subscribing prisoners.
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The Plaintiff is also entitled to an injunction prohibiting Defendants from enacting

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and enforcing policies, procedures, administrative directives, etc., to confiscate and/or discard

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publications without notification to the publisher that such publications have been confiscated and/or

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discarded rather than delivered.

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As a proximate and direct result of the Defendants’ actions, Plaintiff has suffered

damages in an amount to be more fully enumerated at trial.
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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 6
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 7 of 8

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REMEDIES REQUESTED

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Declaratory Relief
Plaintiff hereby incorporates by reference all allegations contained in all numbered

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paragraphs of this Complaint as is set forth fully here.
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Plaintiff requests a declaratory judgment establishing that the policies and procedures

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of censorship which result in Defendants not delivering or refusing to allow delivery to prisoners of
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PRISON LEGAL NEWS and other mail from PLN are in violation of Plaintiff’s First and Fourteenth

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Amendment rights under the Constitution of the United States. Plaintiff requests a declaration that

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Defendants’ ban on “address labels” and “envelope tape,” publications not from a sole “approved

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vendor,” and publications not sent using first-class postage are unconstitutional on their face and as

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applied, all in violation of Plaintiff’s rights under the First and Fourteenth Amendments.

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Injunctive Relief
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Plaintiff hereby incorporates by reference all allegations contained in all numbered
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paragraphs of this Complaint as if set forth fully here.
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Plaintiff respectfully requests that this Court issue a permanent injunction enjoining

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Defendants, and each of them, from interfering with or refusing the delivery of PLN publications and

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other mail or subscription information from PLN within the NDOC system, anywhere within the

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State of Nevada. Plaintiff asks this Court to issue a permanent injunction enjoining defendants from

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enforcing the “no labels,” “no tape” and “no sticker” requirements, the “approved vendor”
requirement, and the requirement that publications be mailed using first-class postage.

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Punitive Damages
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Plaintiff hereby incorporates by reference all allegations contained in all numbered

paragraphs of this Compliant as if set forth fully here.
30.

Plaintiff alleges that the individual Defendants acted with deliberate indifference to or

reckless disregard for Plaintiff’s clearly established constitutional rights, and have violated Plaintiff’s
clearly established constitutional rights, and these actions taken by the individual Defendants were
the direct and proximate cause of the damages suffered by Plaintiff, and therefore, punitive damages

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should be awarded to punish Defendants for their misconduct, and to deter similar misconduct by
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similarly situated defendants in the future. The amount of these punitive damages should be
determined at trial.

AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 7
[863598-1]

Case 3:13-cv-00346-HDM-WGC Document 5 Filed 06/28/13 Page 8 of 8

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PRAYER
WHEREFORE, Plaintiff pray for a trial by jury on all issues so triable, and for judgment

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against the Defendants, and each of them, as follows:
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For general damages in an amount to be more precisely determined at trial;

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For special damages in an amount to be more precisely determined at trial;

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For punitive damages in an amount to be more precisely determined at trial;

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For a preliminary and permanent injunction as described herein;

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For declaratory relief as specifically requested herein;

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For attorneys’ fees and costs of suit necessarily incurred herein;

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For leave to amend this Complaint should additional facts become known to Plaintiff;

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For such other and further relief as this Court may deem just and appropriate in the

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and

premises.
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DATED: This 28th day of June 2013.

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/s/ Staci Pratt________
Staci Pratt
601 S. Rancho Dr., Ste. B-11
Las Vegas, NV 89106
(702) 366-1536
Cooperating Attorney for the
ACLU of Nevada

/s/ Lance Weber______
Lance Weber
Missouri Bar No. 49055
lweber@humanrightsdefensecenter.org
Human Rights Defense Center
PO Box 1151
Lake Worth, FL 33460(Pro Hac Pending)

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AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
DEMAND FOR JURY TRIAL - 8
[863598-1]



 

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