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Prison Legal News v. Sheriff Betterton & Upshur County, TX, Order Granting in Part Preliminary Injunction 2013

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Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 1 of 15 PageID #: 810

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-00699-JRG
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MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Prison Legal News’s (“PLN”) Motion for Preliminary
Injunction (Dkt. No. 2), filed November 1, 2012. The Court having fully considered the same
finds that the Motion should be GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
I.

BACKGROUND
Plaintiff alleges ongoing violations of its rights under the First and Fourteenth

Amendments to the United States Constitution as well as its rights under Article I, Section 8 of
the Texas Constitution. The underlying facts are as follows:
Plaintiff publishes Prison Legal News, a monthly magazine about the legal rights of
incarcerated persons, as well as books about prisoners’ rights. Defendants administer or are
otherwise responsible for the Upshur County Jail (“UCJ” or the “Jail”). In the past, PLN has sent
its publications to inmates at UCJ and intends to continue sending its publications there in the
future.
Some portion of PLN’s mail to UCJ inmates does not reach its intended recipients. PLN
claims that since July 2011, PLN has received returned copies of its magazines and books,
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variously stamped with phrases such as “Refused,” “Returned to Sender,” “No Newspaper,” and
“RTS” (Dkt. No. 23, at 6). The reasons for these returns are unclear. PLN claims that the returns
evince a policy of either total prohibition of communications, content-based censorship, or
arbitrary censorship (Dkt. No. 2, at 4-6). Defendants contend that they “have never rejected a
PLN publication due to its content, or otherwise censored PLN’s publications in any way” (Dkt.
No. 26, at 3). They claim that they routinely deliver PLN publications to UCJ inmates, but
suggest inherently that PLN publications are often returned because the recipients either refuse
delivery or, given the transient nature of jail populations, no longer reside in the UCJ. Id., at 4.
Prior to September 2013, PLN’s correspondence with UCJ inmates was governed
according to the following written Jail policy:
All other mail will be censored and inspected by correctional staff. Should any
of these contain inflammatory writings, plans of escape, manufacture of drugs,
weapons, or explosives, that would encourage deviant criminal sexual
behavior, or otherwise lessen jail security, the information will be forwarded
to the Jail Administrator. In the event this material contains restricted
information, the Sheriff will be advised as well as possible intervention by the
Disciplinary Board.
All periodicals, magazines, newspapers, and other similar items will be
individually inspected. This inspection will be conducted to ensure these items
do not contain restricted information and will be rejected on a case by case
basis. All such materials must have prior approval to be received and must be
mailed from the publisher to the inmate.
(Dkt. No. 2-2, at 3-4). The UCJ Prisoner Rules of Conduct and Handbook further specifies that
“[t]he final say as to what will and will not be accepted lies with the Jail Administrator in
conjunction with the jail’s legal counsel. Should you wish to appeal the Jail Lieutenant’s
decision, you may do so by filing a written request” (Dkt. No. 2-3, at 13). The Jail’s policy prior
to September 2013 contained no provision for notice to either the sender or the recipient of
censored mail, and no suggestion of a process by which the sender of mail (rather than the
recipient) could appeal the Jail official’s decisions.
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In September 2013, and after the present request for a preliminary injunction was filed,
UCJ amended its Correspondence Policy. The new policy provides somewhat more detailed
standards for censoring mail’s content and sketches procedures for notice and appeal with
respect to both senders and recipients:
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;
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 Sheriff, Chief Deputy, or Jail Administrator will be the authority to
consider appeals or rejected mail listed under c.
The inmate and the sender will be informed of any rejection of mail and the
reason for rejection. Any rejected mail will be retained and filed in the
inmate’s personal property file. Each publication will be accepted or rejected
individually.
....
. . . . All mail coming from or being sent to the general public can be opened
and read. If contraband is found it may be confiscated and the inmate advised
of this action. . . .
Outgoing and incoming non-privileged correspondence may be censored
provided a legitimate penological interest exists. A copy of the original
correspondence should be retained.
(Dkt. No. 42-1, at 6-7). UCJ officials have agreed to “abide by and enforce” the new
Correspondence Plan, and have no plans to revive the previous policies (Dkt. No. 42-1, at 3).
Defendants claim that the new Correspondence Plan moots Plaintiff’s Motion for a Preliminary

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Injunction; Plaintiffs contend that their motion remains meritorious even despite the change in
Jail policy.
II.

LEGAL STANDARDS
The Court may grant a preliminary injunction to prevent imminent harm to a party. In

order to merit a preliminary injunction, a plaintiff must prove: (1) a substantial likelihood of
success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued,
(3) that the threatened injury if the injunction is denied outweighs any harm that will result if the
injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.
Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). When the injunction is sought against
“public institutions and public servants” the third and fourth prongs of this test may blend into a
single public interest analysis. Spiegel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. Unit A
Feb. 1981).
The First Amendment to the United States Constitution guarantees freedom of speech and
of the press. U.S. CONST., amend. I. “Publishers who wish to communicate with those who,
through subscription, willingly seek their point of view have a legitimate First Amendment
interest in access to prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Regulations
affecting the sending of a publication are analyzed under a deferential but “not toothless”
reasonableness standard. Id. at 413-14 (citing Turner v. Safley, 482 U.S. 78, 89 (1987).
Restrictions on these rights must be “reasonably related to legitimate penological interests,” and
those interests must be “unrelated to the suppression of expression.” Id. at 404, 415 (quoting
Turner, 482 U.S. at 89, and Procunier v. Martinez, 416 U.S. 396, 413 (1974)).
Under the Fourteenth Amendment to the United States Constitution, no State may
“deprive any person of life, liberty, or property, without due process of law.” U.S. CONST.,

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amend. XIV. Here, where both senders’ and recipients’ First Amendment rights are at stake, the
Fifth Circuit has recognized due process requirements for “notice and an opportunity to be
heard” with respect to each. Prison Legal News v. Livingston, 683 F.3d 201, 222 (5th Cir. 2012);
accord Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Jacklovich v. Simmons,
392 F.3d 420, 433 (10th Cir. 2004); Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th
Cir. 2001); Montcalm Publ’g Co. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996). These procedural
protections need not extend to duplicative determinations of parties’ rights, but may require that
parties objecting to censorship be allowed to participate in any appeals process. See Livingston,
683 F.3d at 223-24.
The Texas Constitution’s free speech provisions extend further than the First Amendment
to the United States Constitution. See Davenport v. Garcia, 834 Sw.2d 4, 10 (Tex. 1992).
Plaintiff suggests that the Jail’s Correspondence Plan effects a prior restraint on speech,
presumptively prohibited by the Texas Constitution (Dkt. No. 2, at 7). No authority known to
the Court suggests that such a result would be consistent with Texas law. In the absence of
authority to the contrary, it seems only reasonable to assume that the provisions of the United
States and Texas Constitutions should be interpreted in parallel; which this Court now
undertakes to do.
III.

ANALYSIS
The evidence suggests that at least some of PLN’s correspondence with prisoners has

been withheld from its intended recipients, depriving Plaintiff of its First Amendment rights
without due process of law. Though a clear improvement over the past, the Court believes that
UCJ’s revised Correspondence Plan still falls short of establishing the minimum procedural
safeguards constitutionally required to protect PLN’s First and Fourteenth Amendment rights.

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Accordingly, in the Court’s view, PLN is likely to prevail on the merits of its case; UCJ’s current
policy threatens imminent and irreparable harm; and the balance of equities tilts clearly toward
an injunction. Such being the case, the Court finds that a preliminary injunction is appropriate
here.
A. Likelihood of Prevailing on the Merits
1. Due Process Arguments
Plaintiff claim that Defendants deprived them of their First Amendment rights without
due process of law. The Court finds that for purposes of this preliminary injunction, PLN has
carried its burden with respect to these claims.
PLN has introduced into the record UCJ’s written policies governing correspondence
prior to September 2013 (Dkt. No. 2-2, 2-3). These policies are unconstitutional, in that they
allowed Jail employees to censor PLN’s correspondence without notifying PLN or allowing PLN
an opportunity to be heard. See Livingston, 683 F.3d at 222. Even the inmates’ right to appeal
such censorship was tenuous at best, since no then-existing policy required prisoners to be
notified when their mail was withheld. Under these policies, any interference with PLN’s right to
communicate with inmates worked an unconstitutional deprivation of PLN’s rights under the
First Amendment and the Due Process Clause of the Fourteenth Amendment.
PLN avers that it has often sent mailings to UCJ inmates that have never reached their
intended recipients (Dkt. No. 23, at 5-6). To substantiate its claim that UCJ policies prevented
PLN from communicating with inmates, it offers the declaration of Devadus Nelson (Dkt. No.
29-1),1 an inmate at UCJ, who subscribes to PLN but at least four times has not received

1

Defendants see a “stark contrast” between the “wholesale violation[s]” alleged by Plaintiff and the “one
declaration” offered as evidence before the Court (Dkt. No. 30, at 2). However, Plaintiff apparently sought to take
more declarations but was refused access by jail officials (Dkt. No. 29, at 5 n.3).

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requested issues.2 Moreover, some PLN publications have been returned to PLN bearing
markings such as “No Newspaper”—a stamp that clearly suggests the interposition of UCJ
policy between communicating parties (Dkt. No. 23, at 6). These facts are sufficient to establish,
to the Court’s satisfaction, that UCJ has deprived PLN of its First Amendment rights without due
process of law.
To counter this evidence, Defendants offer the declaration of Defendant McCauley, who
claims that “no copy of Prison Legal News has been rejected by the Jail due to its content, and
neither I nor the Sheriff’s Office has made any determination that Prison Legal News should be
rejected as a prohibited publication” (Dkt. No. 26-1, at 2). This declaration, however, is not
inconsistent with deprivations of PLN’s rights: the issue, from a Due Process standpoint, is not
why PLN’s publications were rejected—the issue is whether UCJ rejected PLN publications at
all, and, if so, under what procedures. Any rejection of prisoners’ mail—even rejections not
based on content—requires adequate procedural safeguards under the Constitution.
McCauley further suggests, but does not declare, that PLN’s mail was rejected for benign
reasons. Id. However, her explanations are wholly conjectural. That alone is enough for the
Court to find for Plaintiffs here. Additionally, when McCauley’s explanations are read in light of
Nelson’s declaration, they are even more wanting. First, Nelson’s declaration directly casts doubt
on the idea that prisoners are refusing delivery of Prison Legal News en masse. Nelson avers that
he affirmatively subscribed to PLN, and wanted to read the publication, but did not receive his
copy (Dkt. No. 29-1, at 2). Second, PLN claims that many of its returned publications were
stamped “No Newspapers” (Dkt. No. 23, at 6). This stamp, though cryptic, suggests a policy that
2

Defendants suggest that either Mr. Nelson is lying or that PLN might not have sent Nelson his missing issues (Dkt.
No. 30, at 2-3). Given the volume of mail returned to PLN and the inadequacy of UCJ’s correspondence procedures,
the Court finds it more likely that UCJ failed to deliver Prison Legal News to Mr. Nelson than that PLN—a
company in the business of delivering its mail to readers—failed to mail it. Moreover, it sees no reason not to credit
Mr. Nelson’s sworn statement in the absence of any evidence in contradiction.

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goes beyond mere prisoner unavailability or refusal and reveals movement by UCJ into the
territory of material interference with communicative rights. In light of this evidence, the Court
finds it probable that Plaintiff will prevail on its Due Process claims, at least with respect to its
actions before September of 2013.
Without doubt, UCJ’s recently promulgated Correspondence Plan is a significant
improvement on the Jail’s previous policies. It explicitly requires that both “[t]he inmate and the
sender will be informed of any rejection of mail and the reason for rejection” (Dkt. No. 42-1, at
6). The new policy also seems to make room for an appeals process, though its provisions are
lacking in specific detail. Such right of appeal, however, extends only to mail rejected for
“detriment[] to inmate’s rehabilitation.” The right of appeal appears, by negative implication, to
be inapplicable to mail withheld because it “contains information regarding the manufacture of
explosives, weapons, or drugs,” or mail “designed to achieve the breakdown of jails through
inmate disruption” (Id. at 7). Of further concern, there appear to be two separate bases for
censorship written into the Correspondence Plan: a set of content-based standards contained in
Section IV, where an appeal is implied; and a blanket provision in Section VI allowing
censorship “provided a legitimate penological interest exists.” No appeal is provided or even
suggested for censorship in Section VI. The Court views these as constitutionally based defects
in the Correspondence Plan, especially since the Plan anticipates avenues of censorship with no
attendant procedural protections.
Finally, the current language in the Correspondence Plan is impermissibly vague about
the required procedures. In the absence of timelines, clearly defined roles, or guidelines as to the
form of an appeal, the promised procedural safeguards are, as a practical matter, under the
unilateral control of the implementing official. Such open-ended discretion is incompatible with

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traditional notions of due process. Cf. Wolff v. McDonnell, 418 U.S. 529 (1974) (holding prison
procedures acceptable in part because its authority was “not left at large with unlimited
discretion,” but operated according to standards including mandatory times and places of
meeting and principles of decision).
As long as UCJ continues to operate under constitutionally defective procedures for
handling correspondence, PLN is potentially subject to unconstitutional deprivations of its rights
under the First and Fourteeenth Amendments. The Court finds that PLN has established a
likelihood of success on the merits with respect to its ongoing claims for injunctive relief.
2. First Amendment Claims
In addition to its Due Process claims, Plaintiff has alleged violations of its substantive
First Amendment rights—that UCJ has deliberately censored PLN’s communications with
prisoners on the basis of either prejudice against PLN content or an impermissibly arbitrary
discretion. Defendants deny these allegations. Unfortunately, because Defendants’ procedures
for handling inmate correspondence have been deficient, there is very little in the way of actual
evidence with respect to Plaintiff’s substantive First Amendment claims. No reasonableness
analysis under Turner v. Safley is possible, since no record of official censorship or its rationale
is available to the Court. See 482 U.S. 78, 89 (1987).3
There is, however, evidence of at least some substantive First Amendment harms. A “No
Newspaper” policy, even inconsistently applied, would be an unconstitutional First Amendment
harm. See Mann v. Smith, 796 F.2d 79, 81 (5th Cir. 1986). Also, the Jail’s inconsistent record of
delivery by itself suggests an unconstitutionally arbitrary policy. See City of Lakewood v. Plain

3

The Court notes that Defendant McCauley’s declaration that “no copy of Prison Legal News has been rejected by
the Jail due to its content” is fully consistent with unconstitutional policies that are overbroad but not content-based
(e.g., a loosely enforced “No Newspapers” policy) or with policies that are unconstitutionally arbitrary (Dkt. No. 261, at 2).

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Dealer Publ’g Co., 486 U.S. 750, 759 (1988). While much of the evidence—packages simply
marked “Refused” or “Return to Sender”—might plausibly have been refused for the benign
reasons Defendant McCauley suggests (see Dkt. No. 23, at 6; Dkt. No. 26-1, at 2), because
UCJ’s policy required no notice, hearing, or record when a piece of mail was censored, there is
no easy way from the record to distinguish between the most insidious First Amendment harms
and the most ordinary and sensible jail practices. However, what evidence does exist suggests at
least some violations of PLN’s substantive First Amendment rights. Plaintiff has demonstrated a
likelihood of success on the merits with respect to its First Amendment claims prior to
September 2013.
In the absence of further injunctive relief, Plaintiff could expect continuing impingements
on its First Amendment rights. As explained above, even Defendants’ September 2013 policy is
constitutionally flawed from a due process standpoint. Defects in process can foster violations of
substantive rights—indeed, perhaps the most crucial reason for requiring process is that it is
necessary to protect underlying rights. See Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976).
Even the Jail’s improved 2013 policy allows significant latitude for unconstitutional censorship
from which PLN is entitled to be protected. Plaintiff has thus established a likelihood of success
on the merits of its claim for injunctive relief with respect to its substantive First Amendment
Claims.
B. Substantial Threat of Irreparable Injury
For Plaintiff to be entitled to a preliminary injunction, it must establish not only a
likelihood of success on the merits but also a substantial threat of irreparable injury. Janvey, 647
F.3d at 595. For the purposes of the present motion, a harm is irreparable if it cannot be undone
through money damages. Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th

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Cir. 2012). “The ‘loss of First Amendment freedoms for even minimal periods of time
constitutes irreparable injury justifying the grant of a preliminary injunction.’” Palmer ex rel.
Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (quoting Deerfield
Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981).4
Though Defendants’ new Correspondence Plan is an improvement over the prior policy,
it does not remove the threat of irreparable harm, for at least two reasons. First, as noted above,
the Correspondence Plan is constitutionally flawed, and any future censorship is likely to violate
Plaintiff’s rights. This Plan effectively invites violations of Plaintiff’s substantive First
Amendment rights. Second, although UCJ’s Correspondence Plan suggests reform, it outlines a
“voluntary cessation” of unconstitutional conduct, which “does not preclude a finding of
irreparable injury.” Doe v. Duncanville Indep. Sch. Dist., 994 F.2d 160, 166 (5th Cir. 1993).
“The crucial test” in such circumstances “is whether it can be said with assurance that there is no
reasonable expectation that the wrong will be repeated.” Id. The burden of persuading the court
that the Correspondence Plan establishes that assurance lies with Defendants, and they have not
met it in the Court’s view. See U.S. v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203
(1968).5
Indeed, Plaintiff has objective reasons to expect continuing violations of its rights. First
among these is basic human nature: Plaintiff has started a fight with Defendants by bringing this
lawsuit against them in this Court. From that the Court can anticipate at least some degree of
4

Plaintiff claims that violations of due process rights are in themselves irreparable (Dkt. No. 2, at 8). It appears,
though, that courts usually examine violations of due process through the irreparability of the underlying harm. See,
e.g., Advocacy Ctr. for Elderly and Disabled v. La. Dept. of Health and Hosps., 731 F.Supp. 2d 603, 625-26 (E.D.
La. 2010). Thus in this case the irreparable due process harm is the deprivation of Plaintiff’s First Amendment rights
without due process of law. Plaintiff also faces irreparable substantive First Amendment harms. The Court need not
and does not reach the issue of whether a violation of due process in the abstract is irreparable.
5
Another District Court has found that changed policies of a similar nature do assuage any threat of irreparable
harm. See Prison Legal News v. Lindsey, No. 3:07-CV-00367-P, Dkt. No. 23, at 9 (N.D. Tex., June 18, 2007). That
case addressed a somewhat different policy, however, which that court appears to have found adequately protective
of inmates’ constitutional rights. Id. at 7.

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resentment toward Plaintiff that might—if left unchecked—interfere with Plaintiff’s rights. Such
resentment is a natural reaction to the kind of provocation that Plaintiff has initiated through this
action. Though the Court is anxious to reaffirm its faith in the dedication, skill, and impartiality
of Upshur County officials, it sees merit in a “trust but verify” approach.
Despite its improvements, Defendants’ new Correspondence Plan leaves the door open to
suspect that, absent an injunction, more constitutional violations might be in the offing. The
Correspondence Plan is clear in its mention of appeals only as to one of three categories of
content that might justify censorship. It also provides for appeal, but does not specify whether
both senders and recipients of censored mail have a right of appeal (Dkt. No. 42-1, at 5-7). These
drafting inadequacies should not be overlooked.
Finally, the most obvious reason to find a substantial threat of imminent harm is past
practice. The Defendants’ adoption of this new Correspondence Plan communicates to anyone
paying attention that life under the prior (pre-September 2013) practice at UCJ was not what it
should have been. Nelson’s declaration confirms this. These prior wrongs raise a realistic threat
of imminent harm in the future.
C. Balance of Harms and Public Interest
Without a preliminary injunction, the Court is persuaded that Plaintiff would likely suffer
irreparable harm to its First Amendment rights. Defendants, however, will not be harmed by the
injunction the Court orders today. This Court is particularly mindful of the comity due local
officials in the domain of their expertise; of the substantial difficulty of Defendants’ duties; of
the benefit to public safety Defendants provide; and the cost to the public of additional burdens
on Defendants. In order to minimize any additional burden, the Court has elected to use
Defendants’ Correspondence Plan as the basis for its injunctive relief. The Court believes that

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Defendants will be subject only to a slight modification of a Plan it is currently in the process of
implementing. These alterations—which the Court finds are the minimum necessary to satisfy
the requirements of the Constitution—should not harm Defendants or burden their ability to
carry out their already difficult duties. The Court finds that its injunction weighs strongly in the
public interest—remedying constitutional defects in a public institution while intruding only
minimally, if at all, on the local government at hand. The Court specifically finds that its
injunction will have no adverse effect on public safety, since the Jail may censor (with
appropriate process) any communications that legitimately threaten safety either inside or outside
the Jail.
IV.

CONCLUSION
Having carefully considered the pleadings of the parties, the Court finds that a

preliminary injunction is warranted. Modifications to UCJ’s Correspondence Plan are necessary
in order to meet the minimum standards guaranteed by the First and Fourteenth Amendments to
the Constitution of the United States. The Court finds that the Constitution requires the
injunctive relief below, that the relief is narrowly drawn, and that it extends no further than
necessary to remedy the threat of imminent and irreparable harm. See 18 U.S.C. § 3626.
Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion (Dkt.
No. 2) as follows:
V.

INJUNCTION
The Court hereby ORDERS AND ENJOINS Defendants as set forth hereafter:
1) Defendants shall abide by the terms of its Correspondence Plan (Dkt. No. 42-1, at
5-7), except with respect to Sections (IV) and (VI) of said plan.

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2) In lieu of Section (IV) of the Correspondence Plan above cited, the Defendants shall
implement and abide by the following terms:
Section (IV)
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;
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 72 hours 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 reason for rejection;
notice of the opportunity for appeal; and 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, or, if the inmate is no longer
held in the Upshur County Jail, three days after notice is postmarked as
first-class mail, postage prepaid, properly addressed and placed within the
care of the United States Postal Service. The inmate or the sender or both
may request an appeal within 21 days of their notice of rejection. Appeals
shall be considered and decided by the Sheriff of Upshur County, Texas
(“Sheriff”) within 72 hours of receipt of a request for appeal. If the Sheriff
is unavoidably unable to hear an appeal within the time allotted, the
Sheriff may so certify in writing, in which case the Chief Deputy Sheriff
of Upshur County (“Chief Deputy”) may consider and decide the appeal.
If both the Sheriff and the Chief Deputy are unavoidably unable to hear an
appeal within the time allotted, they may both so certify in writing, in
which case 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 24 hours of the decision being made.
Any rejected mail will be retained and filed in the inmate’s personal
property file. Each publication will be accepted or rejected individually. If
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a prisoner refuses delivery of mail, the Jail shall obtain a written release
signed by the prisoner and so indicating such refusal.
3) Defendants shall abide by the terms of Section (VI) of the Correspondence Plan,
except that:
a. In the second sentence of the second paragraph of Section (VI) (“A copy of

.

the original correspondence should be retained”), the word “should” is
replaced with the word “shall.”
b. The following paragraph is appended to the end of Section (VI):
In the event that any correspondence or its contents is altered,
damaged, withheld, or otherwise censored (beyond being merely
opened and read) in accordance with the terms of this section, both
the sender and recipient shall be notified and presented with the
opportunity for an appeal as described in Section (IV) above.

SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 30th day of September, 2013.

____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE

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