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The Habeas Citebook Ineffective Counsel

Tall side bannerPLN v. Co. of Kankakee, et al., IL, Order, censorship, 2015

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2:14-cv-02290-CSB-EIL # 35-1

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E-FILED

Wednesday, 27 May, 2015 12:19:18 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.: 14-cv-2290

Plaintiff,
Hon. Colin S. Bruce

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

Order of Stipulation and Dismissal
The Parties to this action, represented by counsel, stipulate to and request entry of the
following Order:
1.

On December 1, 2014, Plaintiff Prison Legal News, a Project of the Human

Rights Defense Center (“PLN” or “Plaintiff”) filed suit in the above-captioned matter seeking
injunctive and declaratory relief, damages, and attorney’s fees and costs. Plaintiff’s complaint
alleges an unlawful and unconstitutional custom, practice, or policy regarding the delivery of
incoming publications and correspondence to prisoners at the Kankakee County Detention
Center and Jerome Combs Detention Center (the “Jails”) in violation of the First and Fourteenth
Amendments to the United States Constitution.

2:14-cv-02290-CSB-EIL # 35-1

2.

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On February 16, 2015, Defendants Kankakee County, et al., (collectively

“Defendants”) filed an answer denying the allegations in Plaintiff’s complaint and raising
various affirmative defenses.
3.

The Parties agree that Defendants have disputed, and continue to dispute and deny

liability in this case. However, in order to avoid the expense, delay, uncertainty, and burden of
litigation, the Parties agree to the entry of this consent decree.
4.

The Parties agree that this Order and Stipulation of Dismissal, together with

payment of the sum of one hundred twelve thousand dollars ($112,000.00), fully and finally
resolves all claims alleged by Plaintiff in its complaint. If payment is not made within forty-five
days of the entry of this order, or July 6, 2015, then interest shall accrue at ten percent per annum
from that date.
5

The Parties agree that this Order and Stipulation of Dismissal shall be applicable

to the delivery of all publications directly from any Publisher; and b) the delivery of other
documents or correspondence from Prison Legal News. Specifically, the Parties agree that
Defendants shall deliver Prison Legal News, and all other publications from PLN, to inmates
and/or detainees at the Jails. The Parties further agree that Defendants shall no longer have, nor
implement in the future, blanket bans on books, booklet, pamphlet, or similar document, or a
single issue of a magazine, periodical, or newsletter sent directly from any Publisher to inmates
and/or detainees at the Jails. For the purposes of this Order and Stipulation of Dismissal, the
term Publisher shall mean any publisher or book store that does mail order business.
6.

The Parties agree that Defendants shall provide constitutionally adequate written

notice and an administrative process to appeal the Jails’ refusal to deliver any publication,
2

2:14-cv-02290-CSB-EIL # 35-1

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correspondence, or document sent to a prisoner at the Jails. The administrative review process
shall include the sender’s right to have its appeal, complaint, or inquiry considered and resolved
by a decision maker other than the person who originally refused to deliver the publication or
mailing in question.
7.

The parties agree that Defendants shall be given an opportunity to correct any

future violations of this Order in good faith. Nothing in this Order and Stipulation of Dismissal
is meant to prevent Plaintiff from filing a future action against Defendants and/or any agents
thereof for future violations of Plaintiff’s constitutional rights.
8.

The Court finds that this case concerns the First and Fourteenth Amendment

rights of a publisher and is therefore not a case concerning prison conditions as defined in the
Prison Litigation Reform Act of 1996. The Court further finds that the relief herein ordered is
narrowly drawn, extends no further than necessary to correct the harm to PLN, and is the least
intrusive means necessary to correct that harm.
9.

It is further agreed and ordered that within 30 days of the date of entry of this

Order and Stipulation of Dismissal, the defendant Sheriff Timothy Bukowski will insure that the
new jail mail policy (attached hereto as EXHIBIT A) is disseminated to all employees of the
Jails as well as to all persons in custody at both jails and that the new policy will be fully
implemented. Defendants’ counsel will furnish the Court and plaintiffs’ counsel with written
confirmation of same.
10.

The Parties agree that the public interest is served by the entry of this Order,

which protects the constitutional rights of publishers and other persons who correspond with
prisoners by mail, and the right of prisoners to send and receive mail.
3

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11.

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The Court retains jurisdiction of this matter for the purpose of enforcement of its

Order until terminated upon motion made by either Party.
Respectfully Submitted,
/s/ Arthur Loevy
One of Plaintiff’s Attorneys
Arthur Loevy
Matthew Topic
LOEVY & LOEVY
312 N. May Street, Ste. 100
Chicago, IL 60607
(312) 243-5900
/s/ Lance Weber
Lance Weber
Sabarish Neelakanta
HUMAN RIGHTS DEFENSE CENTER
Lake Worth, FL 33460
(561) 360-2523
/s/ Michael Condon
One of Defendants’ Attorneys
Michael Condon
Anthony Becknek
Yordana Sawyer
HERVAS, CONDON & BERSANI, P.C.
333 Pierce Road, Suite 195
Itasca, IL 60143-3156
Phone: 630-773-4774
Fax: 630-773-4851

4

2:14-cv-02290-CSB-EIL # 35-1

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Exhibit A
KANKAKEE COUNTY
INCOMING PUBLICATIONS POLICY
1.

Purpose and Scope
Except when precluded by law, the Kankakee County Sheriff’s Department
(KCSD) permits any inmate to subscribe to or to receive publications without
prior approval and has established procedures to determine if an incoming
publication is detrimental to the security, discipline, or good order of the
institution or if it might facilitate criminal activity. The term publication, as used in
this subpart, means a book, booklet, pamphlet, or similar document, or a single
issue of a magazine, periodical, or newsletter, plus such other materials
addressed to a specific inmate such as advertising brochures, flyers, and
catalogs.

2.

3.

Program Objectives. The expected results of this program are:
a.

Inmates will be permitted to receive and retain publications which do not
threaten security, good order, or discipline of the institution or that may
facilitate criminal activity, or are otherwise prohibited by law.

b.

Publications determined detrimental to the security, good order, or
discipline of the institution or that may facilitate criminal activity, or are
otherwise prohibited by law, will be excluded from KCSD facilities.

c.

A safer environment for staff and inmates will be provided by
strengthening procedures designed to prevent the introduction of
contraband.

Standards Referenced
a.

American Correctional Association 2nd Edition
Administration of Correctional Agencies: 2-CO-5D-01

b.

American Correctional Association 3rd Edition Standards for Adult
Correctional Institutions: 3-4432

c.

American Correctional Association 3rd Edition Standards for Adult Local
Detention Facilities: 3-ALDF-5D-04

d.

American Correctional Association Standards for Adult Correctional Boot
Camp Programs: 1-ABC-5D-04

e.

U.S. Department of Justice, Federal Bureau of Prisons.

Standards

for

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4.

Application. Procedures in this Incoming Publication Policy apply to all
correctional facilities under the jurisdiction and control of the Kankakee County
Sheriff’s Department (namely Kankakee County Detention Center and Jerome
Combs Detention Center).

5.

Procedures
a.

At all KCSD facilities, any inmate may receive publications (for example,
booklet, pamphlet, or similar document, or a single issue of a magazine,
periodical, or newsletter, plus such other materials addressed to a specific
inmate such as advertising brochures, flyers, and catalogs) from the
publisher, a distributor, a book club, bookstore or other retailer.

b.

The JAIL ADMINISTRATION may make an exception to the provisions of
paragraph 5(a) if the publication is no longer available from the publisher,
a distributor, book club or bookstore. An inmate requesting an exception
to paragraph 5(a) shall provide the JAIL ADMINISTRATION with written
documentation that the publication is no longer available from these
sources. The JAIL ADMINISTRATION shall review all requests for
exceptions within 10 days and make reasonable accommodations to make
the requested publication available to the inmate. Any response to a
request for exception shall be documented in writing and provided to the
requesting inmate within 10 days. The inmate may appeal the JAIL
ADMINISTRATION’s response to the CHIEF OF CORRECTIONS using
the jail’s administrative review procedures.

c.

The JAIL ADMINISTRATION may censor a publication only if it is
determined to be detrimental to the security, good order, or discipline of
the institution or if it might facilitate criminal activity.
The JAIL
ADMINISTRATION may not censor a publication solely because its
content is religious, philosophical, political, social or sexual, or because its
content is unpopular or repugnant. Publications which may be censored
by a JAIL ADMINISTRATION include but are not limited to publications
which meet one of the following criteria:
(1)

It depicts or describes procedures for the construction or use of
weapons, ammunition, bombs or incendiary devices;

(2)

It depicts, encourages, or describes methods of escape from
correctional facilities, or contains blueprints, drawings or similar
descriptions of KCSD institutions;

(3)

It depicts or describes procedures for the brewing of alcoholic
beverages, or the manufacture of drugs;

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(4)

It is written in code;

(5)

Contains obscenity, nudity, or sexually explicit material. It is
sexually explicit material which by its nature or content poses a
threat to the security, good order, or discipline of the institution, or
facilitates criminal activity

(6)

It is otherwise detrimental to security, good order, rehabilitation or
discipline or it might facilitate criminal activity, or be detrimental to
mental health;

(7)

Sample products or free gifts (other than publications), including but
not limited to lotions, free samples and gifts, will be placed in
inmate property bins;

(8)

It depicts, describes or encourages activities which may lead to the
use of physical violence or group disruption;

(9)

It encourages or instructs in the commission of criminal activity.

Only the JAIL ADMINISTRATION may censor an incoming publication.
d.

The JAIL ADMINISTRATION may not establish an excluded list of
publications. This means the JAIL ADMINISTRATION shall review the
individual publication prior to the censorship of that publication.
Censorship of several issues of a subscription publication is not sufficient
reason to censor the subscription publication in its entirety.

e.

Where a publication is found unacceptable, the JAIL ADMINISTRATION
shall promptly advise the inmate in writing of the decision and the reasons
for it. The notice must contain reference to the specific article(s) or
material(s) considered objectionable.

f.

The JAIL ADMINISTRATION shall provide the publisher or sender of an
unacceptable publication a copy of the notice of censorship. The JAIL
ADMINISTRATION shall advise the publisher or sender that he may
obtain an independent review of the rejection by writing to the CHIEF OF
CORRECTIONS within 20 days of receipt of the notice of censorship.

g.

The JAIL ADMINISTRATION shall retain the rejected publication at the
institution if the inmate indicates that he will file an appeal or until time for
appeal has lapsed. If the censorship is upheld on appeal, or if neither the
inmate nor the publisher/sender appeal the censorship, the JAIL
ADMINISTRATION shall provide the inmate with the following options of
disposing of the censored publication:

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(1) return to sender;
(2) send to person or entity designated by the inmate to receive
censored publications at prisoners’ expense, or
(3) place into inmates property bin, or allow the family or other
designated person to pick up the items.
For sample notices, see Notification to Inmate (ATTACHMENT 1) and
Notification to Publisher/Sender of Censored Publication (ATTACHMENT
2).

h.

(i)

The JAIL ADMINISTRATION must retain the censored publication
for 30 days from the date that the inmate and publisher/sender are
sent written notification of the censorship to allow time for either
party to appeal.

(ii)

This 30-day period is to allow both the inmate and publisher/sender
the opportunity to file an appeal. If the inmate or publisher/sender
does not file an appeal within the time allowed, the censored
publication may be disposed of as provided in Section 5(g) herein.

(iii)

If the inmate does file an appeal, the JAIL ADMINISTRATION must
retain the censored publication at the institution.

(iv)

The censored publication or the offensive portion of it must be
reviewed prior to a staff response being prepared.

(v)

The CHIEF OF CORRECTIONS should not respond to an appeal
of a censored publication without first reviewing the censored
publication.

The JAIL ADMINISTRATION may set reasonable limits (for fire, sanitation
or housekeeping reasons) on the number or volume of publications an
inmate may receive or retain in his/her quarters. Inmates will store all
publications in the areas provided for personal effects. The JAIL
ADMINISTRATION may authorize an inmate additional storage space for
storage of legal materials in accordance with the KCSD procedures on
personal property of inmates. The jails currently set the reasonable limit
at four (4) publications per inmate.

________________________
Sheriff Timothy Bukowski
Kankakee County Sheriff’s Department

2:14-cv-02290-CSB-EIL # 35-1

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ATTACHMENT 1

Jerome Combs Detention Center
Date:__________________
It is not an option to place items deemed contraband into a detainee’s property/storage container
contained within his cell. It is the detainee’s responsibility to inform family or friends what can or
cannot be sent into the facility. Refer to pages 24-26 in the green inmate handbook.
___________________________ was received for Inmate_______________________________
and is considered contraband due to:
____________________________________________________________________________________
____________________________________________________________________________________
____________________________________________________________________________________
___________________________________________________________________________________.
The item(s) can be picked up through visitation within 30 days of inmate signature by a designated
person of your choosing, can be returned to sender, can be placed in the inmate’s property bin
maintained by the facility, or can be sent to a person or entity designated by the inmate at your expense,
not JCDC’s expense. If you wish to appeal this decision, please respond using the time frame and form
identified in the JCDC grievance procedure and indicate that you would like an independent review of
this decision made by the Chief of Corrections. If you do not respond to this form regarding where to
send the property, after 30 days the item(s) will be destroyed.
Authorization information:
Date:__________
Inmate Signature: _________________________________ ID #___________
Destroy immediately YES

NO

Return to Sender

NO

YES

Name of individual to pick up item(s)_______________________________________.
Please inform individual valid ID is required to receive item(s)
Name and address to send document at your expense___________________________________.
Pick up information: (To be filled out by person accepting and releasing property)
Signature of recipient____________________________
Date & Time___________________________________
Individual releasing item(s)________________________

Please return to Classification

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ATTACHMENT 2
NOTICE OF REJECTION OF A PUBLICATION TO PUBLISHER
Date: ________________
Inmate Name: ____________________________
Publication(s) Name: ________________________________________________________
The above publication(s) has been rejected by the Jerome Combs Detention Center for the
following reason(s):
___

The inmate is no longer at this facility.

___

It contains obscenity, nudity or sexually explicit material.

___

It is written in code or facilitates communication between offenders.

___

It depicts or describes procedures for the construction or use of weapons, ammunition,
bombs or incendiary devices.

___

It depicts, encourages, or describes methods of escape from correctional facilities.

___

It depicts or describes the procedures for the brewing of alcoholic beverages, or the
manufacture of drugs.

___

It depicts, describes, advocates or encourages violence, hatred, or group disruption or it
poses a risk of violence or disruption;

___

It encourages or instructs in the commission of criminal activity;

___

It is otherwise detrimental to security, good order, rehabilitation, or discipline or it might
facilitate criminal activity or be detrimental to mental health.

You may obtain a review of this rejection by writing to Jail Administration within 20 days of
receipt of this notice at:
Jail Administration
Jerome Combs Detention Center
3050 S. Justice Way
Kankakee, IL 60901
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