Case 2:13-cv-00424-MSD-DEM Document 1 Filed 07/30/13 Page 1 of 8 PageID# 1

FILED
UNITED STATES DISTRICT COURT

JUL 3 0 2013

^

FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

C! I RK, U S. DIS7RIC1 COURT
MORI OLK, VA

PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

COMPLAINT

AND JURY DEMAND

Plaintiff,

&i

Civil Action No. 2:13cv
vs.

KEN STOLLE, Sheriff for Virginia Beach,
Virginia, sued in his official and individual
capacity and John Does 1-10.
Defendants.

INTRODUCTION

1.

Plaintiff Prison Legal News brings this action to enjoin Defendants' censorship of its
monthly publication, books and other correspondence mailed to prisoners who are held in
custody at the Virginia Beach Correctional Center, in violation of the First Amendment.

Further, defendants' policies and practices do not afford due process notice and an
opportunity to challenge the censorshipas required by the Fourteenth Amendment.

JURISDICTION

2.

This action arises under the First and Fourteenth Amendments to the United States

Constitution and 42 U.S.C. § 1983. This Court has jurisdiction over this action under 28

U.S.C. §§1331 and 1343(a)(3) and (a)(4) and 28 U.S.C. §§2201 and 2202.

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VENUE

3.

Venue properly lies in this District pursuant to 28 U.S.C. §§ 1391(b)(2) and Local Civil
Rule 3(B) because the Virginia Beach Correctional Center is located in Virginia Beach,
Virginia.
PARTIES

4.

Plaintiff Prison Legal News ("PLN") is aproject of the Human Rights Defense Center

("HRDC"), aWashington State 501(c)(3) non-profit corporation with principal offices in

Lake Worth, Florida. The core of HRDC's mission is public education, prisoner
education, advocacy, and outreach in support of the rights of prisoners and in furtherance
of basic human rights. All prisoners as well as their family, friends, advocates, and
attorneys are among the intended beneficiaries of PLN activities.

5.

Defendant Kenneth W. Stolle is the Sheriff of Virginia Beach, Virginia, and is

responsible for the operation of the Virginia Beach Correctional Center ("VBCC"). The
VBCC is the largest jail in the Commonwealth and holds approximately 1,400 prisoners
on any given day. Defendant Stolle is responsible for the implementation and
enforcement ofall VBCC policies and procedures. At all times relevant to this

Complaint, he was acting under color ofstate law. He is sued in his individual and
official capacities.

6.

Defendants John Does 1-5 are unknown employees of the Virginia Beach Sheriffs office

who were responsible for censoring or otherwise refusing to deliver correspondence from
PLN to prisoners at VBCC as set forth hereinafter. At all times relevant to this
Complaint, these Defendants were acting under color ofstate law.

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7.

Defendants John Does 6-10 are unknown employees of the Virginia Beach Sheriffs

office who were responsible for notifying publishers that their correspondence had been
rejected and who failed to do so with respect to the correspondence from PLN as set forth
hereinafter.

FACTUAL ALLEGATIONS

8.

PLN publishes and distributes a64-page monthly journal entitled "Prison Legal News:
Dedicated to Protecting Human Rights," which reports on criminal justice news and

issues. PLN also publishes, sells and distributes books on avariety ofcriminal justice,
human rights and self-help issues. PLN also operates a website

(www.prisonlegalnews.org) containing an extensive database ofcase law, verdicts,
settlements, commentary, and other material related to these topics.

9.

PLN has published monthly since 1990 and has approximately 7,000 subscribers in all 50

states and abroad. PLN's subscribers include lawyers, journalists, judges, courts, public

libraries, universities and prisoners. The estimated actual readership is 70,000 per month.
PLN's website receives more than 100,000 visitors a month.

10.

PLN currently has, and at all times relevant to this Complaint has had, subscribers who
are or were prisoners in the custody of the VBCC; some of these prisoners have since

been transferred to astate prison where PLN is permitted by subscription.

11• Since April 2012, PLN has sent to numerous prisoners in custody ofVBCC :(1) Sample
issues ofPLN mailed in amanila envelope via first class mail; (2) Information Brochure

Packets ("Info Packet") detailing book offers and subscription rates mailed in aregularsized envelope via first class mail; (3) the soft cover book Protecting Your Health and

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Safety sent via media class mail; (4) Copies ofClement v. California Department of
Corrections, et al„ 364 F.3d 1148 (9lh Cir. 2004), sent in a regular-sized envelope via first
class mail; and (5) monthly issues of PLN sent from PLN's printer.
12.

Since August 2011, PLN has sent more than two hundred of the above items to

approximately 30 separate subscribers in custody at the VBCC. As confirmed by at least
one prisoner subscriber at VDCC, PLN correspondence was permitted to be received by
prisoners for several months prior to April 2012.

13.

Starting inapproximately April 2012, PLN began receiving returned items it had mailed

to prisoners in VBCC through the U.S. Postal Service's "Return to Sender" process.
14.

PLN received back copies ofits magazine, all ofwhich were individually addressed to its
prisoner subscribers. These magazines had a "Return to Sender" stamp on them and
handwritten notes stating "Not Here" or "Refused." Acheck ofthe prisoner subscriber's
custody status revealed them to be in custody at VBCC at the time the magazines were
returned to PLN, even those marked "Not Here."

15.

Informational Brochure Packets were also returned with labels and stamps reading "Not
Here" and "Refused." A check ofthe prisoner subscriber's custody status revealed that
even those marked "Not Here" to be in custody at VBCC at the time the Info Packets
were returned to PLN.

16.

PLN has only once been notified by VBCC ofthe rejection ofits correspondence. PLN
learned through its subscribers, however, that widespread censorship ofPLN
correspondence was occurring. PLN is aware ofat least 67 items of correspondence
censored by VBCC between April 2012 and the present.

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17.

According to the Mail Restriction Forms given to prisoners at VBCC, and provided to
PLN by its subscribers, monthly PLN issues were censored because it was claimed that its
advertisements contain "sexually explicit material." However, PLN's advertisements
contain no nudity or depictions of sexual acts.

18.

According to the Mail Restriction Forms given to prisoners at VBCC, and provided to
PLN by its subscribers, the Info Packets were censored because "ordering forms with
prices, catalogs [and] brochures" are not permitted.

20.

The Mail Restriction Forms also state that anappeal process is provided to both the
sender and the recipient. However, prisoner subscribers are only notified after PLN has
been rejected and placed in their property box.

21.

As previously stated, PLN has received only one such Mail Restriction Form from

VBCC. That form was taped to the back of an envelope stamped "Return to Sender" and
hand marked "Refused." Numerous seizures of PLN correspondence have occurred
without notice to PLN.
CAUSES OF ACTION

FIRST CAUSE OF ACTION

(Lack of Timely and Adequate Notification to Publisher)
22.

Plaintiff realleges and incorporates by reference paragraphs 1-21 herein.

23.

The failure to provide timely notification and adequate reasons for disapproval decisions,
violates PLN's rights protected by the First and Fourteenth Amendments.

24.

As a direct and proximate result of the conduct of Defendants, PLN has suffered a loss of

its right to due process and its right to communicate with willing recipients and has also

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suffered financial injury.

SECOND CAUSE OF ACTION

(Censorship of Constitutionally Protected Speech)

25.

Plaintiff realleges and incorporates by reference paragraphs 1-21 herein.

26.

Defendants have disapproved orrefused to deliver publications that contain
constitutionally protected speech.

27.

The aforesaid conduct by Defendants, without adequate penological justification, violates
PLN's First Amendment rights.

28.

As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has
suffered a loss of its right to communicate with willing recipients and has also suffered
financial injury.
THIRD CAUSE OF ACTION

(Facial Validity of Rule Prohibiting "Sexually Explicit Material")
29.

Plaintiff realleges and incorporates by reference paragraphs 1-21 herein.

30.

The rule prohibiting "sexually explicit material," is vague and overbroad and therefore
facially invalid as a violation of the First Amendment.

31.

As adirect and proximate result ofthe aforesaid conduct ofDefendants enforcing that
rule, Plaintiff has suffered a loss ofits right to communicate with willing recipients and
has also suffered financial injury.
FOURTH CAUSE OF ACTION

(Refusal to allow Information Packets)

32.

Plaintiff realleges and incorporates by reference paragraphs 1-21 herein.

33.

Prohibiting the receipt by PLN's subscribers and others of information on howto

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subscribe to the magazine and about books and other publications for sale by Plaintiff,
without adequate penological justification, violates PLN's First Amendment rights.
34.

As a direct and proximate result of the conductof Defendants, as described above,

PLN has suffered a loss of its right to communicate with willing recipients and has also
suffered financial injury.

WHEREFORE, Plaintiff requests the following relief:

a.

Declaratory judgment that the failure to provide adequate and timely notice of decisions

to disapprove a publication and to provide Plaintiff a timely and adequate opportunity to
be heard violates PLN's First Amendment and due process rights;
b.

Preliminary and permanent injunction requiring that facilities under the control and

direction of Defendant Stolle provide notice to PLN of any proposed decision to
disapprove a PLN publication and that the notice indicate what specific article(s) and/or
advertisement(s) are at issue and if a book, which pages, an explanation of how the

article(s) and/or advertisement(s) or pages in question threaten the valid penological
interests of VBCC, and an opportunity to appeal the disapproval to an official other
than the one who made the initial censorship decision.

c.

Declaratory judgment that thecensorship or refusal to deliver the PLN magazine to
prisoners in custody of VBCC violates PLN's First Amendment rights.

d.

Preliminary and permanent injunction requiring Defendants to allow receipt of the PLN
magazine unless there is a valid penological justification to censorthat particular issue.

e.

Declaratory judgment that the rule prohibiting the receipt of "sexually explicit material"
is facially invalid as overbroad and vague.

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f.

Preliminary and permanent injunction prohibiting Defendants from censoring or rejecting
PLN publications based on the simple standard of"sexually explicit."

g-

Declaratory judgment that the VBCC rule prohibiting "ordering forms with prices,
catalogs, brochures" violates the First Amendment.

h.

Preliminary and permanent injunction prohibiting Defendants from refusing to allow
PLN's Information Brochure Packets without penological justification.

Awarding PLN nominal, compensatory and punitive damages;
Awarding attorney's fees and costs to Plaintiff;
k.

Awarding such other and further relief as the Court may deem just and proper.
JURY DEMAND

Plaintiff hereby demands a trial byjury on all issues so triable.

Respectfully submitted,
PRISON LEGAL NEWS

By Counsel

Jeffrey E. Fogel, VSB #75643
Attorney at Law
913 E. Jefferson Street

Charlottesville, VA 22902

434-984-0300 (Tel)
434-220-4852 (Fax)

Lance Weber, Missouri State Bar #49055

Email: ieff.fo<>el@gmail.com

(To be admitted pro hac vice)
Human Rights Defense Center

Steven D. Rosenfield, VSB #16539
Attorney at Law

General Counsel

913 E. Jefferson Street

Lake Worth, Florida 33460

Charlottesville, VA 22902

561-360-2523 (Tel)
866-228-1681 (Fax)

434-984-0300 (Tel)
434-220-4852 (Fax)

PO Box 1151

lwcber@humanrightsdefensecenter.org

Email: attvrosen@aol.com

Attorneys for Plaintiff