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The Habeas Citebook: Prosecutorial Misconduct

PLN v. Co. of Kankakee, et al., IL, Complaint, censorship, 2014

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2:14-cv-02290-CSB-DGB # 1

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E-FILED

Monday, 01 December, 2014 03:54:23 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF ILLINOIS, URBANA DIVISION
PRISON LEGAL NEWS, a project of
the HUMAN RIGHTS DEFENSE CENTER,

Case No.:

Plaintiff,
v.
COUNTY OF KANKAKEE;
SHERIFF TIMOTHY BUKOWSKI, individually and in
his official capacity;
CHIEF OF CORRECTIONS, CHAD KOLITWENZEW,
individually and in his official capacity;
DOES 1-10, in their individual and
official capacities,

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF UNDER
THE CIVIL RIGHTS ACT 42
U.S.C. §1983 AND DAMAGES

JURY TRIAL DEMANDED

Defendants.

I.
1.

INTRODUCTION

Plaintiff, PRISON LEGAL NEWS (“PLN” or “Plaintiff”), brings this action to

enjoin Defendants’ censorship of its monthly journal, Prison Legal News, and their failure to
provide due process of law to PLN and other senders of censored mail. Defendants have adopted
and implemented mail policies that unconstitutionally prohibit delivery of Prison Legal News to
pre-trial detainees and other prisoners in their custody at the Kankakee County Detention Center
(“KCDC”), in violation of the First Amendment to the United States Constitution, and have
failed and refused to provide senders of censored mail due process notice and an opportunity to
challenge the censorship as required by the Fourteenth Amendment to the United States
Constitution.

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II.
2.

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JURISDICTION AND VENUE

This action is brought pursuant to 42 U.S.C. § 1331 (federal question), as this

action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §
1343 (civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983.
3.

Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which

authorizes actions to redress the deprivation, under color of state law, of rights, privileges and
immunities secured to the Plaintiff by the First, Fifth, and Fourteenth Amendments to the U.S.
Constitution and laws of the United States.
4.

Plaintiff’s claim for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988,

which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought
pursuant to 42 U.S.C. § 1983.
5.

Venue is proper under 28 U.S.C. § 1391(b). On information and belief, at least

one Defendant resides within this judicial district, and the events giving rise to the claims
asserted herein all occurred within this judicial district.
6.

Plaintiff seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and

2202, and Rule 57 of the Federal Rules of Civil Procedure, as well as nominal and compensatory
damages, against all Defendants.
7.

Plaintiff is informed, believes, and based thereon alleges that in engaging in the

conduct alleged herein, individual Defendants acted with the intent to injure, vex, annoy and
harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of
Plaintiff’s rights with the intention of causing Plaintiff injury and depriving it of its constitutional
rights.
8.

As a result of the forgoing, Plaintiff seeks exemplary and punitive damages

against the individual Defendants.
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III.
9.

PARTIES

Plaintiff, Prison Legal News (“PLN”), is a publisher project of the Human Rights

Defense Center, a not-for-profit, Washington charitable corporation recognized under IRS Code
§ 501(c)(3), with offices in Lake Worth, Florida. PLN publishes Prison Legal News, a monthly
journal of prison news and analysis.
10.

Defendant, County of Kankakee, is a unit of government organized and existing

under the laws of the State of Illinois. Defendant, County of Kankakee is and was at all relevant
times mentioned herein, responsible for the policies, procedures, customs and practices of the
Kankakee County Sheriff’s Department (“the Sheriff’s Department” or “the Department”) and
the actions and/or inactions of its employees and agents. The Department operates the Kankakee
County Detention Center (“KCDC”), and is and was responsible for adopting and implementing
mail policies governing incoming mail for prisoners at KCDC. Said policies and practices are
the moving force behind the constitutional violations at issue herein.
11.

Defendant, Sheriff Timothy Bukowski is employed by and is an agent of

Defendant County of Kankakee and the Department. He is responsible for overseeing the
management and operations of the jails, and for the hiring, screening, training, retention,
supervision, discipline, counseling, and control of the personnel of KCDC who interpret and
apply the mail policy for prisoners. As Sheriff, Defendant Bukowski is a final policymaker for
the Department and for Defendant County of Kankakee with respect to the operations of KCDC,
including for policies governing incoming mail for prisoners. He is sued in his individual and
official capacities.
12.

Defendant, Chief of Corrections, Chad Kolitwenzew, is employed by and is an

agent of Defendant County of Kankakee and the Sheriff’s Department. His duties include

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overseeing all jail responsibilities, including but not limited to reception, booking and
classification, housing, and other jail services. He is responsible for the operation and
management of the KCDC and for the promulgation and implementation of its policies,
including the prisoner mail policies challenged herein. He is also responsible for the hiring,
screening, training, retention, supervision, discipline, counseling, and control of the personnel of
KCDC who interpret and apply the mail policy for prisoners. He is sued in his individual and
official capacities.
13.

The true names and identities of Defendants DOES 1 through 10 are presently

unknown to PLN. Each of Defendants DOES 1 through 10 are or were employed by and are or
were agents of Defendant County of Kankakee when some or all of the challenged prisoner mail
policies and practices were adopted and/or implemented. Each of Defendants DOES 1 through
10 are or were personally involved in the adoption and/or implementation of the mail policies for
prisoners, and/or are or were responsible for the hiring, screening, training, retention,
supervision, discipline, counseling, and/or control of KCDC staff who interpret and implement
these prisoner mail policies. They are sued in their individual and official capacities. PLN will
seek to amend this Complaint as soon as the true names and identities of Defendants DOES 1
through 10 have been ascertained.
14.

At all times material to this action, the actions of all Defendants as alleged herein

were taken under the authority and color of state law.

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IV.
15.

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FACTUAL ALLEGATIONS

PLN publishes and distributes a 64-page soft-cover monthly journal containing

corrections news and analysis about prisoners’ rights, court rulings, management of prison
facilities, prison conditions, and other matters pertaining to the rights and/or interests of
incarcerated individuals.
16.

PLN has thousands of subscribers in the United States and abroad, including

prisoners, attorneys, journalists, public libraries, judges, and members of the general public.
PLN distributes its monthly publication to prisoners and law librarians in approximately 2,400
correctional facilities located across all fifty states, including the Federal Bureau of Prisons and
the Illinois Department of Corrections.
17.

The purpose of PLN, as stated in its Articles of Incorporation, Article III, Part 6,

is to educate prisoners and the public about the destructive nature of racism, sexism, and the
economic and social costs of prisons to society.
18.

PLN engages in core protected speech and expressive conduct on matters of

public concern, such as the operation of prison facilities, prison conditions, prisoner health and
safety, and prisoner rights. Plaintiff’s monthly journal, as described above, contains political
speech and social commentary, which are at the core of First Amendment values and are entitled
to the highest protection afforded by the U.S. Constitution.
19.

For the past 24 years, the core of PLN’s mission has been public education,

advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal
redress for infringements of their constitutionally guaranteed and other basic human rights.

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Censorship of PLN’s Monthly Journal
20.

Defendants have censored PLN’s monthly journal mailed to prisoners held in

custody at KCDC, by refusing to deliver it to the prisoners.
21.

Since July 2014, PLN has sent at least sixty-two (62) issues of its monthly journal

to prisoner-subscribers at KCDC. On information and belief, the current monthly issues of
Prison Legal News were not delivered to the following prisoners during the following months:
Date Mailed:

Prisoners:

July 1, 2014

Lakesha Baker
Jacob Baker-Hale
Michael Cousins
Keoni Davis
Jon Giles
Devin Jones
Saul Melero
Cody Stilwell
William Thomas
Walter Thompson

August 5, 2014

Lakesha Baker
Jacob Baker-Hale
Michael Cousins
Keoni Davis
Jon Giles
Devin Jones
Saul Melero
Cody Stilwell
William Thomas
Walter Thompson
Robert Rozycki
Jewneus Wilson

September 9, 2014

Lakesha Baker
Jacob Baker-Hale
Michael Cousins
Keoni Davis
Jon Giles
Devin Jones
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Saul Melero
Cody Stilwell
William Thomas
Walter Thompson
Robert Rozycki
Jewneus Wilson
October 9, 2014

Lakesha Baker
Jacob Baker-Hale
Michael Cousins
Keoni Davis
Jon Giles
Devin Jones
Saul Melero
Cody Stilwell
William Thomas
Walter Thompson
Robert Rozycki
Jewneus Wilson

November 7, 2014

Lakesha Baker
Jacob Baker-Hale
Lorenzo Baily
Jermaine Brooks
Michael Cousins
Edward Davis
Keoni Davis
Jon Giles
Devin Jones
Kevin Johnson
Saul Melero
Cody Stilwell
William Thomas
Walter Thompson
Robert Rozycki
Jewneus Wilson

22.

PLN currently has sixteen (16) subscribers incarcerated at KCDC. PLN intends

to continue to mail monthly copies of Prison Legal News to pre-trial detainees and other
prisoners incarcerated at KCDC.

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Failure to Provide Due Process
23.

Defendants failed to provide any notice of their censorship decisions to PLN. Nor

did Defendants provide PLN with any opportunity to appeal those censorship decisions to
someone other than the original decision-maker.
Jail Policies and Practices
24.

On information and belief, KCDC’s mail policy states:
Magazines, hard cover books, calendars or newspapers are not
allowed in the facility and will not be accepted through the mail.

25.

Defendants’ mail policies, practices and customs have been used to censor PLN’s

written speech and to deny PLN due process of law when effectuating said censorship.
26.

Defendants’ conduct prohibiting PLN from mailing its journal to prisoners

confined at KCDC violates the First Amendment. Defendants’ policies, practices and customs
censor these expressive activities and have a chilling effect on PLN’s future speech and
expression directed toward prisoners confined there. Defendants’ policies, practices and customs
in this regard are unconstitutional both facially and as applied to Prison Legal News.
27.

Reasonable discovery will show that Defendants’ mail policies do not provide

senders of censored mail with due process of law. Defendants’ conduct in denying due process
of law to PLN and other senders of censored mail violates the Fourteenth Amendment.
Defendants’ policies, practices and customs in this regard are unconstitutional both facially and
as applied to Prison Legal News.
28.

Due to Defendants’ actions as described above, Plaintiff has suffered damages,

and will continue to suffer damages, including, but not limited to: the violation of the Plaintiff’s
constitutional rights; the impediment of Plaintiff’s ability to disseminate its political message;
frustration of Plaintiff’s non-profit organizational mission; diversion of resources; loss of
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potential subscribers and customers; an inability to recruit new subscribers and supporters; the
loss of reputation; and the costs of printing, handling, mailing, and staff time.
29.

Defendants’ actions and inactions were and are motivated by ill motive and intent

and were and are all committed under color of law with reckless indifference to PLN’s
Constitutional rights.
30.

Defendants and other agents of KCDC are responsible for or personally

participated in creating and implementing these unconstitutional policies, practices, and customs,
or they are responsible for ratifying and/or adopting them. Further, Defendants are responsible
for training and supervising the mail staff whose conduct has injured and continues to injure
PLN.
31.

Defendants’ unconstitutional policy, practices, and customs are ongoing, continue

to violate PLN’s rights, and are the moving force behind the constitutional violations. As such,
PLN has no adequate remedy at law.
32.

PLN is entitled to injunctive relief prohibiting Defendants from refusing to deliver

its journal without any legal justification, and prohibiting Defendants from censoring mail
without due process of law.
V.

CLAIMS

Count I – 42 U.S.C. § 1983
Violation of the First Amendment
33.

Each paragraph of this Complaint is incorporated as if restated fully herein.

34.

The acts described herein constitute violations of Plaintiffs rights, the rights of

other correspondents who have attempted to or intend to correspond with prisoners at KCDC,
and the rights of prisoners confined at KCDC, under the First Amendment of the United States
Constitution.
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35.

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Plaintiff has a constitutionally protected liberty interest in communicating by mail

with incarcerated individuals, a right clearly established under existing case law.
36.

Defendants’ conduct was objectively unreasonable and was undertaken

intentionally with malice, willfulness, and reckless indifference to the rights of others.
37.

Plaintiff’s injuries and the violations of its constitutional rights were directly and

proximately caused by the policies and practices of Defendants, which were the moving force
behind such violations.
38.

The acts described above have caused damages to Plaintiff, and if not enjoined,

will continue to cause damage to Plaintiff.
39.

Plaintiff seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants.

Plaintiff seeks punitive damages against the individual

Defendants in their individual capacities.
Count II – 42 U.S.C. § 1983
Violation of the Fourteenth Amendment
40.

Each paragraph of this Complaint is incorporated as if restated fully herein.

41.

The acts described above constitute violations of Plaintiffs rights, the rights of

other correspondents who have attempted to or intend to correspond with prisoners at KCDC
under the Fourteenth Amendment of the United States Constitution.
42.

Plaintiff has a right under the Due Process Clause of the Fourteenth Amendment

to receive notice and the opportunity to object and/or appeal Defendants’ decisions to prevent
censors and suppress PLN’s written speech.
43.

Defendants’ policy and practice of banning Prison Legal News without notice to

PLN and without an opportunity for PLN to be heard violates the Fourteenth Amendment’s Due
Process Clause.
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44.

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The conduct of Defendants was objectively unreasonable and was undertaken

intentionally with malice, willfulness, and reckless indifference to the rights of others.
45.

Plaintiff’s injuries and the violations of his constitutional rights were directly and

proximately caused by the policies and practices of Defendants.
46.

The acts described above have caused damages to Plaintiff, and if not enjoined,

will continue to cause damage to Plaintiff.
47.

Plaintiff seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants.

Plaintiff seeks punitive damages against the individual

Defendants in their individual capacities.
Injunctive Allegations
48.

Defendants’ unconstitutional policies and practices are ongoing and continue to

violate Plaintiff’s constitutional rights and the rights of other correspondents and prisoners. As
such, there is no adequate remedy at law.
49.

Plaintiff is entitled to injunctive relief prohibiting Defendants from refusing to

deliver PLN’s monthly journal to people held in their custody. Plaintiff is also entitled to
injunctive relief prohibiting Defendants from censoring mail without due process of law.
VI.

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff respectfully requests relief as follows:
50.

A declaration that Defendants’ policies and practices violate the Constitution.

51.

Nominal damages for each violation of Plaintiff’s rights by the Defendants.

52.

A preliminary and permanent injunction preventing Defendants from continuing

to violate the Constitution, and providing other equitable relief.
53.

Compensatory damages in an amount to be proved at trial.

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54.

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Punitive damages against the individual Defendants in an amount to be proved at

trial.
55.
Costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988, and under
other applicable law.
56.

Any other such relief that this Court deems just and equitable.
Respectfully Submitted,
/s/ Jon Loevy
Arthur Loevy
Jon Loevy
Matthew Topic
LOEVY & LOEVY
312 N. May Street, Ste. 100
Chicago, IL 60607
(312) 243-5900
/s/ Lance Weber
Lance Weber, Fla. Bar No.: 104550*
Sabarish Neelakanta, Fla. Bar No.: 26623*
Human Rights Defense Center
PO Box 1151
Lake Worth, FL 33460
(561) 360-2523
*Admission applications to be filed
VII.

JURY DEMAND

Plaintiff hereby demands a trial by jury on all issues so triable.
Respectfully Submitted,
/s/ Jon Loevy
Arthur Loevy
Jon Loevy
Matthew Topic
LOEVY & LOEVY
312 N. May Street, Ste. 100
Chicago, IL 60607
(312) 243-5900

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