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. Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 2 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 3 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 4 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 5 of 15 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 5 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 6 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 7 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 9 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 11 of 15 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 11 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 12 of 15 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. 12 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 13 of 15 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 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 14 of 15 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. 14 Case 1:15-cv-00107-SCY-KBM Document 1 Filed 02/05/15 Page 15 of 15 Respectfully Submitted, /s/Laura Schauer Ives Laura Schauer Ives, NM Bar No.: 12463 email@example.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 firstname.lastname@example.org Angela Galloway*, WA Bar No.: 45330 email@example.com Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 /s/ Lance Weber Lance Weber*, Fla. Bar No.: 104550 firstname.lastname@example.org Sabarish Neelakanta*, Fla. Bar No.: 26623 email@example.com 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