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The Habeas Citebook: Prosecutorial Misconduct

PLN v. Co. of Bernalillo, et al., NM, Complaint, censorship, 2015

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Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PRISON LEGAL NEWS, a project of
the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
COUNTY OF BERNALILLO;
PHILLIP GREER, Chief of Corrections, in his official
capacity;
RAMON RUSTIN, Former Chief of Corrections,
individually;
DONALD VIGIL, Assistant Chief of Corrections, in his
individual and official capacity;
VIRGINIA CHAVEZ; Assistant Chief of Operations, in
her individual and official capacity;
TOM SWISSTACK, Deputy County Manager for Public
Safety, in his individual and official capacity;
DOES 1-10, in their individual and
official capacities,

Case No.:
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

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

Defendants’ censorship of books mailed to people in their custody at the Metropolitan Detention
Center (“MDC”). Defendants’ mail policies and practices unconstitutionally prohibit delivery of
books, including Plaintiff’s books, to pre-trial detainees and other prisoners at MDC in violation
of the First Amendment to the United States Constitution. Defendants’ policies and practices
also deny Plaintiff and other senders of censored mail due process of law by failing to provide
notice of and an opportunity to challenge each instance of censorship as required by the
Fourteenth Amendment to the United States Constitution.

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II.
2.

JURISDICTION AND VENUE

This action is brought pursuant to 28 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.

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.
4.

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.
5.

This Court has jurisdiction over claims seeking 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.
6.

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.
7.

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

conduct alleged herein, Defendants acted wantonly and/or with the intent to injure, vex, annoy
and harass Plaintiff, and subjected Plaintiff to unjust hardship in conscious disregard of
Plaintiff’s constitutional rights.
8.

As a result of the forgoing, Plaintiff seeks exemplary and punitive damages
2

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against the individual Defendants.
III.
9.

PARTIES

PLN is a wholly owned project of the Human Rights Defense Center, a not-for-

profit Washington charitable corporation recognized under § 501(c)(3) of the Internal Revenue
Code with principal offices in Lake Worth, Florida. In addition to publishing and distributing
books of interest to prisoners, PLN publishes Prison Legal News: Dedicated to Protecting
Human Rights, a sixty-four (64) page black-and-white monthly journal of corrections news and
analysis.
10.

Defendant, County of Bernalillo, is a municipality and governmental entity

organized and existing under the laws of the State of New Mexico. Defendant County of
Bernalillo is responsible for the training, supervision, acts, omissions, conduct, policies (written
or unwritten), patterns, practices, customs and procedures of the public employees acting within
the course and scope of their duties at MDC during all times relevant hereto.
11.

Defendant, Chief of Corrections, Phillip Greer, currently serves as a final policy

maker for MDC. Defendant Greer oversees, plans, coordinates, and evaluates all MDC policies
and practices at issue, and is chiefly responsible for its implementation. Defendant Greer also
formulates programs and/or policies to alleviate any actual or foreseeable deficiencies with the
policies and practices at MDC. He is sued in his official capacity only.
12.

Defendant, Former Chief of Corrections Ramon Rustin, was a final policy maker

for the MDC. This Defendant was personally involved in the adoption and/or implementation of
the mail policies at issue. Defendant Rustin held the same title and performed the analogous
duties of the present Chief of Corrections, Defendant Greer, supra. He is sued in his individual
3

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capacity only.
13.

Defendant, Assistant Chief of Corrections, Donald Vigil is responsible for the

implementation of inmate policies at MDC, including the inmate mail policies challenged herein,
and for the hiring, screening, training, retention, supervision, discipline, counseling, and control
of the personnel at MDC who interpret and apply the mail policy for inmates. He is sued in his
individual and official capacities.
14.

Defendant, Assistant Chief of Operations, Virginia Chavez, manages the

operations of non-security services at MDC including but not limited to: finance, human
resources, contract compliance, case management, medical and psychiatric services, food
services, information technology, in-house programs, and mail services. She is sued in her
individual and official capacities.
15.

Defendant, Deputy County Manager for Public Safety, Tom Swisstack, is

responsible for the oversight and coordination of the Metropolitan Detention Center, to include
any programs or services related to inmate mail or policies related to the same. He is sued in his
individual and official capacities.
16.

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 Defendants when some or all of the challenged inmate 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 inmates,
and/or are or were responsible for the hiring, screening, training, retention, supervision,
discipline, counseling, and/or control of MDC staff who interpret and implement these inmate
4

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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.
17.

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.
IV.
18.

FACTUAL ALLEGATIONS

PLN distributes approximately fifty (50) different books about the criminal justice

system, legal reference books, and self-help books of interest to prisoners. These books are
designed to foster a better understanding of criminal justice policies and to allow prisoners to
educate themselves about related issues, such as legal research, how to write a business letter,
health care issues, and similar topics.
19.

PLN distributes its books to prisoners in approximately 2,400 correctional

facilities located across all fifty states, including the Federal Bureau of Prisons and the New
Mexico Department of Corrections.
20.

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

public concern, and its books cover topics such as the operation of prison facilities, prison
conditions, prisoner health and safety, and prisoner rights. Plaintiff’s books, as described above,
contain political speech and social commentary, which are entitled to the highest protection
afforded by the U.S. Constitution.
A. Censorship and Lack of Due Process
21.

Defendants have censored PLN’s books mailed to people held in custody at

MDC, by refusing to deliver the books and, in some instances, by returning the books to PLN’s
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offices via the “Return To Sender” service of the United States Postal Service. Defendants
continue to censor PLN’s books.
22.

Defendants have censored PLN’s books on at least eighty-four (84) occasions

from June 2012 to the present, including the items identified below.
23.

Among the books censored by Defendants are: Protecting Your Health & Safety:

A Litigation Guide for Inmates (“PYHS”), Prisoner Diabetes Handbook: A Guide to Managing
Diabetes – for Prisoners, by Prisoners (“PDH”), and The Habeas Citebook: Ineffective
Assistance of Counsel (“The Habeas Citebook”). PLN is the exclusive distributor of PYHS and
also distributes PDH for the Southern Poverty Law Center, which publishes both books. PYHS
explains the legal rights of prisoners regarding their health and safety including the right to
medical care and the right to be free from inhumane treatment, among others. PDH is a
handbook designed to educate people who have diabetes about how they can manage their
medical condition while incarcerated. The Habeas Citebook is published and distributed by
Plaintiff, and describes the procedural and substantive complexities of federal habeas corpus
litigation with the goal of assisting prisoners in the process of identifying and litigating claims
involving ineffective assistance of counsel. The Habeas Citebook is also a valuable resource for
pre-trial detainees involved in active litigation of pending criminal charges.
Protecting Your Health and Safety
24.

Since June 2012, at least forty-three (43) copies of PYHS were individually

addressed and mailed by PLN to people incarcerated at MDC, including:
Date Mailed:

Prisoner:

June 7, 2012

Shane Sanders
6

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Shane Swann
Earl Mayfield
Sheronda Hobbs
Joey Morrison
June 19, 2012

Joseph Gilstrap
Wendell Gunthorpe
Xavier Thompson

July 17, 2012

Julius Edwards
Michael Gray
Justin Johnson
Darryl Roybal

September 4, 2012

Ronald Brewington

September 7, 2012

Mark Brown
Memori Hardwick

September 18, 2012

Jonathan Danielson
Joe McDonald
William Moulton

November 19, 2012

Aaron Yazzie
Joseph Watts
Chad Kersten
Lasha Knight
James Kohut
Andrew Olivas

November 28, 2012

Zach Pagett
Edward Patterson
Jeffrey Campbell
Robert Carr
Jim Hartley

August 18, 2014

Jimmy Willeto
Harry C. Williams
Alfonso R. Thompson
Carlos L. Smith
Jay Cee X Smith
Clive D. Phillips
John A. Martin
7

Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 8 of 15

Aaron B. James
Roby W. Brown
August 19, 2014

25.

Bruce S. Arnold
Nathaniel Avery
Jacob L. Caddell
Iyesha A. Calderon
Christopher M. Gamble

Forty-two (42) of the above-listed copies of PYHS were sent back to PLN by

return mail, at PLN’s expense, indicating various reasons for the return including the following:
(1) “RETURN TO SENDER”; (2) “UNAUTHORIZED”; and (3) “NO BOOKS.” One (1) copy
of PYHS sent to Shane Swann on June 7, 2012 was not returned to PLN. However, PLN
received correspondence from Mr. Swann confirming that he did not receive PYHS.
Prisoner Diabetes Handbook
26.

In February 2013, PLN mailed an individually addressed copy of PDH to Ronald

Brewington who was incarcerated at MDC. Defendants censored this book by refusing to
deliver it to Mr. Brewington and returning it to PLN after marking: (1) “RETURN TO
SENDER”; (2) “UNAUTHORIZED”; and (3) “NO BOOKS!!,” on the outside of the package.
The Habeas Citebook
27.

Since July 2014, PLN mailed individually addressed copies of The Habeas

Citebook to the following forty (40) prisoners at MDC, which were subsequently censored:
Date Mailed:

Prisoner:

July 11, 2014

Bruce S. Arnold
Nathaniel Avery
Jacob L. Caddell
Iyesha A. Calderon
Christopher M. Gamble

8

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August 18, 2014

Jimmy Willeto
Harry C. Williams
Alfonso R. Thompson
Carlos L. Smith
Jay Cee X Smith
Clive D. Phillips
John A. Martin
Aaron B. James
Roby W. Brown

September 19, 2014

Matthew Harris
Clive D. Phillips
Dale G. Jones
Dean R. Jones
Marie L. Jones
Aaron Bradley James
Benny L. James
Henry R. Jameson
Ronald I. Johnson
Melissa Martin
Phillip Martin
Alfred C. Martinez
Angel S. Martinez
Jeffery A. Moore
Jay Cee Xavier Smith
Alfonso R. Thompson
Keith L. Thompson
Timothy J. Wilson
Tyrone White

December 1, 2014

Luis C. Grajeda
Timothy Carrera
Matthew E. Baker
Leonard Allred
Oscar Carbajal
Joey L. Franklyn
Kevin Anderson

28.

All of the above copies of The Habeas Citebook were sent back to PLN by return

mail, at PLN’s expense, indicating various reasons for the return including the following: (1)
“RETURN

TO

SENDER”;

(2)

“UNAUTHORIZED”;
9

“NO

BOOKS;

and/or

NO

Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 10 of 15

CARDBOARD”
29.

In all the above instances of censorship, Defendants failed to provide due process

notice to PLN of the reason for rejecting PLN materials by, among other inadequacies, failing to
explain the penological justification for their censorship decisions, failing to identify the specific
mail policy they relied on, stating different reasons for censoring identical items of mail, and
otherwise failing to give meaningful notice of the censorship. With all of the rejected materials,
Defendants did not provide any further information to PLN other than what is noted above. At no
time did Defendants provide an opportunity for PLN to appeal the rejection of its mail.
30.

MDC’s mail policy 15.03 states:
The Facility allows inmates to receive magazines, newspapers and periodicals
that are generally available to the public, but must be received through the mail
from the publisher. Hardcover books or any other type of books are not allowed
to be mailed in, even through the publisher.

The policy further requires that:
The Mail Clerk responsible for receiving mail shall return any printed materials
and publications (i.e. Magazines, newspapers, periodicals), which are
unauthorized or of questionable nature back to the sender…Books are
automatically returned to sender.
31.

MDC’s mail policy fails to require that notice of censorship be given to either the

intended recipient or the sender of a censored book, nor does it provide an avenue by which the
censorship decision can be appealed.
32.

Defendants’ conduct prohibiting PLN from mailing its publications to inmates

confined at MDC violates the First Amendment. Defendants’ policies, practices and customs
have a chilling effect on PLN’s future speech and expression directed toward people confined
there. Defendants’ policies, practices and customs are unconstitutional both facially and as
10

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applied to PLN.
33.

PLN publishes and distributes content concerning the rights of inmates and the

means by which they may obtain relief from unconstitutional conditions of confinement. As a
result, PLN is informed and believes that Defendants have retaliated against PLN by refusing to
deliver PLN’s written materials to inmates held at the jails.
34.

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
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.
35.

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 rights.
36.

Defendants, and other agents of MDC, are responsible for or personally

participated in creating and implementing these unconstitutional policies, practices, and customs,
or for ratifying or adopting them. Further, Defendants are responsible for training and
supervising the staff persons whose conduct has injured and continues to injure PLN.
37.

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.
38.

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

publications and books from Prison Legal News and other publishers without any legal
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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
39.

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

40.

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 MDC, and
the rights of prisoners confined at MDC, under the First Amendment of the United States
Constitution.
41.

Plaintiff has a constitutionally protected liberty interest in communicating with

incarcerated individuals by sending books to them via U.S. Mail, a right clearly established
under existing case law.
42.

The conduct of Defendants was objectively unreasonable and was undertaken

intentionally with malice, willfulness, and reckless indifference to the rights of others.
43.

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

proximately caused by the policies and practices of Defendants, and those policies were the
moving force behind the violations.
44.

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

will continue to cause damage to Plaintiff.
45.

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.

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Count II – 42 U.S.C. § 1983
Violation of the Fourteenth Amendment
46.

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

47.

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 MDC, and
the rights of prisoners confined at MDC, under the Fourteenth Amendment of the United States
Constitution.
48.

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

to receive notice and an opportunity to object and/or appeal Defendants’ decisions to prevent
PLN’s books from reaching prisoners at MDC.
49.

Defendants’ policy and practice when censoring PYHS, PDH and The Habeas

Citebook, or any other books fails to provide Plaintiff or other senders with individualized notice
of the censorship or an opportunity to be heard.
50.

The conduct of Defendants was objectively unreasonable and was undertaken

intentionally with malice, willfulness, and reckless indifference to the rights of others.
51.

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

proximately caused by the policies and practices of Defendants, and which were the moving
force behind the same.
52.

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

will continue to cause damage to Plaintiff.
53.

Plaintiff seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants.

Plaintiff seeks punitive damages against the individual

13

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Defendants in their individual capacities.
Injunctive Allegations
54.

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.
55.

Plaintiff is entitled to injunctive relief prohibiting Defendants from refusing to

deliver or allow delivery of PYHS, The Habeas Citebook, PDH, or any other books without legal
justification. 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:
56.

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

57.

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

58.

A preliminary and permanent injunction preventing Defendants from continuing

to violate the Constitution, and providing other equitable relief.
59.

Compensatory damages in an amount to be proved at trial.

60.

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

61.

Costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988, and under

trial.

other applicable law.
62.

Any other such relief that this Court deems just and equitable.

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Respectfully Submitted,
/s/Laura Schauer Ives
Laura Schauer Ives, NM Bar No.: 12463
lsi@civilrightslawnewmexico.com
Kennedy, Kennedy & Ives, LLC
1000 2nd Street NW
Albuquerque, NM 87102
/s/Bruce E. H. Johnson
Bruce E. H. Johnson*, WA Bar No.: 7667
brucejohnson@dwt.com
Angela Galloway*, WA Bar No.: 45330
angelagalloway@dwt.com
Davis Wright Tremaine LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101
/s/ Lance Weber
Lance Weber*, Fla. Bar No.: 104550
lweber@humanrightsdefensecenter.org
Sabarish Neelakanta*, Fla. Bar No.: 26623
sneelakanta@humanrightsdefensecenter.org
Human Rights Defense Center
PO Box 1151
Lake Worth, FL 33460
(561) 360-2523
*Admission Applications Pending
JURY DEMAND
Plaintiff hereby demands a trial by jury on all issues so triable.

15
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