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Prison Legal News v. Sheriff Bob Holder, Comal County, Complaint 2013

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Case 5:13-cv-00591 Document 1 Filed 07/08/13 Page 1 of 9

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

§
§
§
PLAINTIFF
§
v.
§
§
BOB HOLDER, Comal County Sheriff, in his
§
individual and official capacity, and COMAL
§
COUNTY,
§
DEFENDANTS §

CIVIL ACTION NO. 5:13-cv-591

JURY DEMAND

COMPLAINT
This lawsuit involves a challenge to Comal County’s policies and practices, which
unlawfully censor and exclude magazines and periodicals protected by the U.S. Constitution.
Plaintiff Prison Legal News, a publisher project of the Human Rights Defense Center (HRDC)
publishes and distributes literature including a monthly magazine, Prison Legal News, which is
protected by the First Amendment.
PLN also challenges Comal County’s policies and practices, which violate PLN’s due
process rights by failing to provide adequate notice and opportunity to be heard to review
decisions censoring and excluding magazines.
The law on these two issues is well-established. Comal County acts in an arbitrary and
unreasonable manner in contravention of over thirty years of well-settled case law.
Statement of Claims
1.

Prison Legal News (PLN) brings this civil rights action for redress of violations of

its rights to free speech and expression and due process under the law, seeking injunctive and
declaratory relief, as well as nominal, compensatory, presumed and punitive damages, and
attorneys’ fees and costs.

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2.

At all relevant times, Defendants acted under color of law and in the course and

scope of their employment. Defendants violate PLN’s constitutional rights protected by the First
and Fourteenth Amendments to the U.S. Constitution. Defendants’ actions caused and continue
to cause injuries to PLN, as described below.
Jurisdiction and Venue
3.

This action is brought pursuant to 42 U.S.C. §1983 and 1988. Jurisdiction is based

on 28 U.S.C. §§1331, 1343(a)(3) and (4), and the aforementioned federal statutory and
constitutional provisions.
4.

Venue is proper in this Court under 20 U.S.C. §1391(b)(1) and (2) as the events

complained of occurred within the Western District of Texas.
Parties
5.

Plaintiff PLN is a wholly owned project of HRDC, a Washington State non-profit,

tax-exempt organization based in Florida that publishes Prison Legal News, a monthly magazine
distributed across the nation to prisoners, attorneys, judges, law libraries, and other subscribers.
PLN is also a book distributor, specializing in books and self-help materials regarding prisoners’
rights and issues related to the criminal justice and corrections systems. HRDC’s mission is
centered on public education, prisoner education, advocacy, and outreach in support of prisoners’
rights and in furtherance of basic human rights.
6.

Defendant Bob Holder is the elected Sheriff of Comal County. He has overall

responsibility for the policies, procedures, operation, and supervision of the Comal County
Sheriff’s Office, its employees, agents and assigns, including all correctional facilities under the
control of his office, including the Comal County Jail. Defendant Holder is the final policymaker
for the Comal County Jail Sheriff’s Office and the Comal County Jail. He is sued in his official
and individual capacities. He is a resident of the Western District of Texas.
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7.

Defendant Comal County is a political subdivision of Texas. The County funds and

operates the jail, employs and compensates the jail staff, and is charged with ensuring that, at all
times, the jail remains in compliance with federal and state law. Comal County can be served
through its county judge, Judge Sherman Krause, 100 Main Plaza, New Braunfels, Texas 78130.
Statement of Facts
8.

Plaintiff publishes and distributes a 64-page legal information magazine entitled

Prison Legal News (PLN). Each monthly issue of Prison Legal News provides updates about
court decisions, as well as information about important legal issues such as access to courts and
counsel, disciplinary hearings, prison conditions, excessive force, mail censorship, jail litigation,
visitation, access to telephones, religious freedom, prison rape, and the death penalty, among
other related topics. Prison Legal News has been published continuously since 1990. The
publication is core-protected speech, which is not objectionable on security or other grounds.
9.

Prison Legal News has approximately 7,000 subscribers nationwide, including

prisoners, attorneys, judges, public libraries, and members of the general public. PLN distributes
its publication to prisoners and law libraries in approximately 2,200 correctional facilities across
the United States.
10. PLN also distributes approximately fifty (50) legal and self-help books about the
criminal justice system that are primarily published by others. These books are designed to foster
a better understanding of criminal justice policies and issues and to allow prisoners to educate
themselves about basic related issues.
11. For example, PLN distributes the paperback book Protecting Your Health and
Safety: Prisoners’ Rights (hereafter Protecting Your Health and Safety) published by the
Southern Poverty Law Center (SPLC) in Montgomery, Alabama. PLN distributes Protecting
Your Health and Safety and sells it on PLN’s website as part of an agreement with SPLC. The
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book gives inmates information about their right to medical care, protections against inhumane
treatment and other information about their federal constitutional rights.
12. Beginning in October 2011 and continuing to the present, PLN sent individually
addressed copies of Prison Legal News, postage pre-paid, via U.S. mail, to prisoners at the
Comal County jail.
13. PLN also sent copies of Protecting Your Health and Safety to prisoners in the jail.
14. Sheriff Holder has adopted a policy and practice, implemented by and through
Comal County Sheriff’s Office and County Jail employees and staff, which impermissibly
infringes on PLN’s right to distribute its books and magazines to prisoners confined in Comal
County Jail. Sheriff Holder is in charge of the policies of Comal County Jail, and has oversight
of the drafting and implementation of all policies. He also supervises all jailors responsible for
implementation of the jail policies.
15. Sheriff Holder’s policy for mail is entitled “Comal County Sheriff’s Office
Corrections Division Inmate Mail Rejection-Return to Sender Notification.” It provides inmate
mail will be returned to sender if any listed prohibited/unauthorized contraband is found.
16. The policy plainly states “No books from the publisher or bookstore will be allowed
through the mail.”
17. Moreover, the policy adds that, “Newspapers will be allowed through the mail
directly from the publisher with the exception of sexual explicit, tattoo, gang related, TV guide
or any other magazine not appropriate.” But the definition of “Newspaper” is very narrow.
Prisoners are only allowed to read three papers: the San Antonio Express-News, Austin
American-Statesman, and USA Today. Further, inmates are allowed only one newspaper at a
time, and it must be the most current issue. In short, prisoners can only have one newspaper at a
time – today’s issue of the Express-News, American-Statesman or USA Today.
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18. The Comal County Inmate Rule Book is a separate document, which governs
policies for correspondence more generally. The policy states: “Newspaper or magazine articles,
emails, and other items of this nature will not be permitted to come into or leave the facility
through the mail.”
19. In the section of the Rule Book entitled “Property” the policy states that
“Permissible Items” include, “[t]hree (3) reading materials. Reading materials consist of
religious materials, newspaper, or books from the jail library. You will be allowed one of each
type. You will only be permitted one (1) book from the Jail library cart, one (1) newspaper, and
one (1) religious book.” No other books are allowed.
20. Moreover, when Comal County censors a book or magazine, the policy does not
provide for any notice to the sender of the book that it was censored; nor does it provide any
explanation for the censorship. The sender does not receive notice, or an opportunity to appeal.
21. PLN has sent copies of Prison Legal News, Protecting Your Health and Safety,
flyers, and legal letters to individual prisoners at the Comal County Jail. Beginning on or around
November 2011, PLN began receiving returned copies of the publications from the jail.
22. Comal County and Sheriff Holden provided no legitimate reason for excluding each
censored copy of PLN’s publications.
23. Beginning in October 2011, PLN began sending copies of Protecting Your Health
and Safety to inmates at the jail. The books were returned to PLN stamped as either
“Unauthorized Mail,” “Refused” and/or “Return To Sender.”
24. Since October 2011 to the present, PLN has tried to send copies of Prison Legal
News to inmates at the jail.

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25. Prisoners also did not receive routine mail sent by PLN – such as renewal notices for
Prison Legal News. This mail was returned to PLN without Comal County and Sheriff Holder
giving any reason.
26. In fact, prisoners wrote back to PLN, complaining they never received the books and
magazines sent to them.
27. On information and belief, Comal County and Sheriff Holder are not making
individualized determinations about the content of each publication before censoring and
excluding the material, in violation of clearly established First Amendment law.
28. Defendants’ censorship and exclusion of Prison Legal News is arbitrary and void of
any constitutionally valid standards or criteria.
29. The contents of Prison Legal News are protected speech and expression. These
publications have been unlawfully censored and excluded by Comal County and Sheriff Holder.
30. Comal County’s official, written policy violates PLN’s free speech and due process
rights by expressly prohibiting Prison Legal News, and failing to provide PLN notice and
opportunity to contest the censorship. Sheriff Holder authored and ratified this policy.
31. Defendants’ policy and practice fails to provide plaintiff with any alternative means
of exercising its free speech rights to distribute its publications and exchange information with its
readership, customers, and supporters. Accommodation of PLN’s free speech, free expression,
and due process rights will not have any significant impact on the operation or security of the
jail.
32. Comal County and Sheriff Holder knew, or must have known, that these policies and
practices were unconstitutional and violated PLN’s rights to free speech, expression, and due
process.

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33. Comal County and Sheriff Holder’s actions willfully, wantonly, and maliciously
violated PLN’s constitutional rights.
34. Due to the Comal County and Sheriff Holder’s actions, PLN suffered damages,
including violation of its constitutional rights, such as the right to disseminate its message, loss
of potential subscribers, customers, correspondents and supporters, diversion of resources, loss
of reputation, frustration of mission and other damages to be shown at trial.
35. Due to Comal County and Sheriff Holder’s actions, PLN has suffered and will
continue to suffer irreparable harm for which there is no adequate remedy at law.
CAUSE OF ACTION I
Freedom of Speech and Expression
36. Comal County and Sheriff Holder’s policy and practice of arbitrary and unlawful
exclusion of Prison Legal News violates PLN’s free speech and expression rights secured by the
First and Fourteenth Amendments to the U.S. Constitution.
37. PLN has a constitutionally protected liberty interest in communicating with
incarcerated individuals, a right clearly established under decades of well-settled case law.
38. Comal County and Sheriff Holder’s implementation of their policy permits the
censorship and exclusion of reading material unrelated to any legitimate penological interest,
without any individualized determination based on content, in violation of the First and
Fourteenth Amendments to the U.S. Constitution.
39. Comal County and Sheriff Holder’s mail policies and practices are overbroad and do
not further any legitimate penological interest.
CAUSE OF ACTION II
Due Process of Law

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40. Comal County and Sheriff Holder’s policy and practice regarding censorship and
exclusion of publications protected by the First and Fourteenth Amendments fail to provide
adequate notice and an opportunity to be heard, in violation of the Due Process Clause of the
Fourteenth Amendment.
41. PLN has a right under the Fourteenth Amendment to receive notice and the
opportunity to object when Comal County and Sheriff Holder prevent its books from reaching
prisoners. This right is clearly established under decades of well-settled case law.
Damages
42. PLN seeks compensatory, punitive, presumed and nominal damages for violations of
its constitutional free speech and due process rights under the First and Fourteenth Amendments;
injuries to its business reputation; and loss of revenue.
Declaratory Relief
43. PLN requests all appropriate declaratory relief to which it is entitled.
Injunctive Relief
44. PLN requests the Court grant appropriate relief permanently enjoining Comal
County and Sheriff Holder from continuing to violate its free speech and due process rights. PLN
seeks permanent injunctive relief requiring Comal County and Sheriff Holder to provide written
notice to senders and an opportunity to appeal to an official other than the one who made the
initial censorship decision before censoring their publications, and requiring the adoption of
specific guidelines delineating what materials may be delivered to prisoners though the mail, as
well as any other appropriate injunctive relief.
Attorneys’ Fees and Costs
45. Pursuant to 42 U.S.C. §1988, PLN is entitled to recover attorneys’ fees and costs.
Prayer for Relief
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THEFORE, Plaintiffs request that the Court:
1. Declare that PLN’s rights were violated by Comal County and Sheriff Holder and
Defendants’ policies and practices are unconstitutional;
2. Grant a preliminary injunction and a permanent injunction preventing Comal County and
Sheriff Holder from continuing to violate PLN’s rights now and in the future;
3. Award nominal, compensatory, and punitive damages against Comal County and Sheriff
Holder;
4. Grant reasonable attorneys’ fees, litigation expenses, and court costs pursuant to 42
U.S.C. §1988; and,
5. Grant all other and further relief as appears reasonable and just, to which Plaintiffs may
be entitled.
Dated July 3, 2013.
Respectfully Submitted:

/s/ Scott Medlock
Scott Medlock
Texas Bar No. 24044783
James C. Harrington
Texas Bar. No. 09048500
TEXAS CIVIL RIGHTS PROJECT
1405 Montopolis Dr.
Austin, TX 78741
(512) 474-5073
(512) 474-0726 (Fax)
ATTORNEYS FOR PLAINTIFF

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