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Prison Legal News v. Sheriff Betterton & Upshur County, TX, Agreed Final Judgment 2013

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 1 of 7 PageID #: 1583

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PRISON LEGAL NEWS,
Plaintiff,
v.
ANTHONY BETTERTON, et al.,
Defendants.

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Case No. 2:12-CV-699-JRG

AGREED FINAL JUDGMENT
IT IS HEREBY AGREED by and between the undersigned counsel for Plaintiff and
Defendants (collectively, the “Parties”), and the Court finds and orders as follows:
1.

On November 1, 2012, Plaintiff Prison Legal News (“PLN”) filed its Complaint in this

matter, seeking injunctive and declaratory relief, damages, and attorneys’ fees and costs against
the Defendants. The Complaint alleged an unlawful policy, practice and custom of censoring
incoming magazines, periodicals, and mail addressed to prisoners at the Upshur County Jail in
violation of the First and Fourteenth Amendments to the United States Constitution and Article I,
Section 8 of the Texas Constitution. The Complaint also alleged violations of due process of law
for failure to give PLN notice of rejected mail and an opportunity to appeal those rejection
decisions.
2.

Also on November 1, 2012, PLN filed its Motion for Preliminary Injunction, requesting

an injunction prohibiting Defendants from continuing to censor publications at the Upshur
County Jail. The Court granted PLN’s motion in part and entered a preliminary injunction on
September 30, 2013.

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 2 of 7 PageID #: 1584

3.

Defendants

Anthony

Betterton,

Jill

McCauley,

and

Upshur

County,

Texas,

(“Defendants”) have denied the allegations of the Complaint and raised various affirmative
defenses.
4.

The Parties have advised the Court that a settlement has been reached in this case and, in

connection therewith, the Parties have agreed to the following terms and conditions regarding
censorship of incoming magazines, periodicals, and mail addressed to prisoners at the Upshur
County Jail:
(A)

Defendants have agreed to adopt and implement a new written policy and

procedure regarding correspondence and incoming publications for prisoners at the Upshur
County Jail, attached hereto as Exhibit A – Correspondence and Incoming Publications Plan (the
“New Policy”). These procedures shall govern the review, handling, and distribution of all
future correspondence and incoming publications to individuals in custody of the Upshur County
Jail—including, but not limited to, those sent by PLN.
(B)

Subject to the restrictions contained in the New Policy, Defendants agree to

distribute publications such as Plaintiff’s monthly journal, Prison Legal News, and PLN’s other
publications including its brochures, letters, books, and magazines to inmates currently housed at
the Upshur County Jail and to provide constitutionally adequate notice to senders, such as PLN,
and inmates and an opportunity to appeal in accordance with the New Policy when mail is
censored or rejected.
5.

The Parties agree, and the Court orders, that Defendants will establish, implement, and

enforce the policies and procedures set forth in the New Policy.
6.

The Parties further agree, and the Court orders, that within 30 days of the date of entry of

this Agreed Judgment, Defendant Sheriff Anthony Betterton or his designee will ensure that the

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 3 of 7 PageID #: 1585

New Policy has been fully implemented. This includes disseminating a copy of the New Policy
to all employees of the Upshur County Jail and confirming that each recipient has read the same,
disseminating the New Policy to members of the general public by posting it conspicuously on a
website maintained by or on behalf of the Upshur County Sheriff’s Office, and disseminating a
copy of the New Policy to inmates by including it in the inmate handbook and by posting a copy
in common areas for at least fourteen days.
7.

Defendants will file with the Court written confirmation of their compliance with the

terms set forth in this Agreed Judgment no later than ninety (90) days after the date of its entry.
8.

The Parties agree that the provisions herein fully and fairly accommodate their interests

regarding the claims asserted in this suit, that the Court should adopt and approve this Agreed
Judgment, and that this Agreed Judgment (together with the Parties’ Settlement Agreement and
the New Policy) resolves all claims alleged by PLN in this case.
9.

PLN’s claims against Defendants are dismissed with prejudice pursuant to the Parties’

Settlement Agreement and this Agreed Judgment. This Court retains jurisdiction of this action to
enforce the terms of the Parties’ Settlement Agreement and this Agreed Judgment and to resolve
any disputes regarding compliance with the New Policy.
10.

The Parties agree to execute the Settlement Agreement within seven (7) days of filing the

Agreed Final Judgment. After the Parties have executed the Settlement Agreement, on or before
December 13, 2013, the Agreed Final Judgment will become final.
So Ordered and Signed on this

Dec 18, 2013

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 4 of 7 PageID #: 1586
 

Exhibit A
Upshur County Correspondence and
Incoming Publications Plan

 

Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 5 of 7 PageID #: 1587
 

UPSHUR COUNTY SHERIFF’S OFFICE
JAIL DIVISION
CORRESPONDENCE AND INCOMING PUBLICATIONS PLAN

I. OBJECTIVE
The objective of this Correspondence and Incoming Publications Plan is to provide for the
handling of privileged and non-privileged correspondence, both outgoing and incoming, and for
the collection and distribution of that correspondence. For purposes of this plan, the terms
“correspondence” and “mail” are defined to include all incoming publications, such as
periodicals, newspapers, magazines, and books sent to inmates.
II. GENERAL
Inmates are allowed to send as many letters of as many pages as they desire, to whomever
they desire (unless prohibited by law, e.g. protective and restraining orders), provided they can
pay for postage and supplies. Inmates may receive correspondence in any quantity, amount
and number of pages, and will be allowed to retain writing materials, stamps and
correspondence in reasonable amounts.
Inmate to inmate correspondence is allowed, provided it is routed through the postal service.
Inmate mail will normally be delivered to inmates on the same day it is received from the postal
service. Outgoing mail is picked up by 10 a.m. each day and will be delivered to the postal
service on the same day it is received from the inmates.
III. INDIGENT MAIL
If requested, indigent inmates shall be provided with a reasonable amount of writing materials
and postage to correspond with their attorneys and the courts, and a sufficient amount to post
three (3) personal letters per week. A negative balance will be maintained on the inmate’s
commissary account for indigent postage and correspondence supplies. Should one of these
inmates receive monies in excess of $5.00, the amount will be deducted from his/her account.
The inmate will be advised of this action in writing.
IV. PROHIBITED MAIL
Some correspondence may be rejected, on a case-by-case basis, provided it falls under one of
the following definitions:
a.

Material that contains information regarding the manufacture of explosives,
weapons, or drugs;

Correspondence and Incoming Publications Plan

 
 

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 6 of 7 PageID #: 1588
 
b.

Material that a reasonable person would construe as written solely for the
purpose of communicating information designed to achieve the breakdown of
jails through inmate disruption such as strikes or riots;

c.

Material for which a specific factual determination has been made that it is
detrimental to inmate’s rehabilitation because it would encourage deviant,
criminal, or sexual behavior or otherwise be adverse to legitimate penological
interests.

The inmate and the sender will be informed within five days of any rejection of mail pursuant to
(a), (b), or (c) above, or Section (VI), below. Notice to the inmate and the sender shall include
the specific reason for rejection; notice of the opportunity for appeal; and specific information
regarding the procedures for requesting an appeal. Notice to the sender shall be deemed to be
given three days after such is postmarked as first-class mail, postage prepaid, properly
addressed and placed within the care of the United States Postal Service. Notice to the inmate
shall be deemed to be given when hand-delivered to the inmate while incarcerated in the
Upshur County Jail. If the inmate is no longer held in the Upshur County Jail, no notice to the
inmate is required. The inmate or the sender or both may request an appeal within 14 days of
their notice of rejection.
Appeals shall be considered and decided by the Sheriff of Upshur County, Texas (“Sheriff”)
within five days of receipt of a request for appeal. If the Sheriff is unable to hear an appeal
within the time allotted, the Chief Deputy Sheriff of Upshur County (“Chief Deputy”) may
consider and decide the appeal. If both the Sheriff and the Chief Deputy are unable to hear an
appeal within the time allotted, the Chief Jail Administrator for Upshur County, Texas may
consider and decide the appeal. Appellants shall be informed in writing of the hearing official’s
decision within 72 hours of the decision being made.
Any rejected mail will be retained and filed in the inmate’s personal property file. Each letter or
publication will be accepted or rejected individually. If a prisoner refuses delivery of mail, the Jail
shall obtain a written confirmation signed by the prisoner and so indicating such refusal.
Any mail received for an inmate which is not delivered because the inmate is no longer in
custody when the mail is received at the Upshur County Jail shall not be considered rejected
mail under these provisions.
V. PRIVILEGED MAIL
Correspondence addressed to or received from the following persons or organizations is
considered privileged:
1.
2.
3.
4.
5.

Officials and other personnel of the federal, state, and local courts;
All federal officials and officers, including the President of the United States;
State officials and officers, including the Texas Commission on Jail Standards
and the Governor;
Representatives of bona fide news media; and
Mail marked “Legal Mail” or “Attorney-Client Privileged.”

Correspondence and Incoming Publications Plan

 
 

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Case 2:12-cv-00699-JRG Document 98 Filed 12/19/13 Page 7 of 7 PageID #: 1589
 
Correspondence received from individuals described in these categories shall not be read by
staff nor interfered with; however it should be opened and inspected for contraband, but only in
the presence of the inmate. If there is probable cause to suspect that the incoming letter is part
of an attempt to formulate, devise, or otherwise effectuate a plan to escape from the jail, or to
violate state or federal laws, officials shall obtain a search warrant prior to opening and reading
the correspondence of the individual involved. Correspondence sent to the above mentioned
individuals may not be opened or interfered with unless a search warrant is obtained.
If privileged mail is rejected as prohibited mail under Section IV above, both the sender and
recipient shall be notified of the reason for such action and will be presented with the
opportunity for an appeal as described in Section (IV) above.
VI. NON PRIVILEGED MAIL
Non-privileged mail is defined as all mail which is not subject to a privilege. All incoming or
outgoing non-privileged mail may be read. If contraband is found or if the content of the 
correspondence threatens a legitimate penological interest, it may be confiscated and the
inmate and the other correspondent will both be advised of this action. A copy of the original
correspondence shall be retained pending disposition of any appeals.
Contraband defined in the penal code or code of criminal procedure as illegal shall be turned
over to the criminal investigation division and disposed of according to law. If currency, money
orders, or checks are discovered in either incoming or outgoing mail, they will be deposited into
the inmate correspondent’s individual trust fund account.
Outgoing non-privileged correspondence is delivered unopened to the jail staff. The staff person
may choose to read a letter, should s/he feel it is advisable to do so.
A log will be kept of all incoming and outgoing correspondence and will include the name and
address of both the sender and the addressee.
Inmates may receive only correspondence through the mail. No clothing, shoes, food, etc. are
allowed. Publications such as newspapers, books, magazines, newsletters, brochures, and
other written correspondence are all specifically allowed, as are newspaper clippings, pages
from magazines, internet downloads, printouts of web pages and/or email messages, and any
other type of written material which a) does not pose a threat to any of the Defendants’
legitimate penological interests and b) is not considered contraband.
In the event that any correspondence or its contents is destroyed, withheld, or otherwise
censored (beyond being opened and read) in accordance with the terms of this section, both the
sender and recipient shall be notified of the reason for such action and will be presented with
the opportunity for an appeal as described in Section (IV) above.

 
 

Correspondence and Incoming Publications Plan

 
 

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