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ROSEN, BIEN & GALVAN, LLP
Sanford Jay Rosen, Bar No. 62566
Meghan Lang, Bar No. 221156
Amy Whelan, Bar No. 215675
315 Montgomery Street, 10th Floor
San Francisco, California 94104
Telephone: (415) 433-6830
Facsimile: (415) 433-7104

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Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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ARNOLD SCHWARZENEGGER, in his official )
capacity as Governor of the State of California and)
in his individual capacity; JAMES E. TILTON, in )
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his official capacity as Secretary, California
Department of Corrections and Rehabilitation
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(CDCR) and in his individual capacity;
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KINGSTON W. PRUNTY, JR., and STEVE
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KESSLER, in their official capacities as
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Undersecretaries of the CDCR and in their
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individual capacities; SCOTT KERNAN, in his
official capacity as Chief Deputy Secretary,
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Division ofAdult Operations (CDCR), and in his )
individual capacity; LEA ANN CHRONES, in her)
official capacity as Director of Adult Institutions )
(CDCR) and in her individual capacity, and;
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MARISELA MONTES, in her official capacity as )
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the Chief Deputy Secretary, Division of Adult
Programs (CDCR) and in her individual capacity, )
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Defendants.
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PRISON LEGAL NEWS, a non-profit,
Washington charitable corporation,

Case No.

CO? - 02058~

e"

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

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COMPLAINT FOR DEC LARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 u.s. C. § 1983 AND DAMAGES

INTRODUCTION

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1.

Plaintiff, Prison Legal News ("PLN") brings this civil rights action pursuant to 42

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U.S.C. § 1983 ("Section 1983") against Defendants to enjoin them from barring the receipt of the

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publication "Prison Legal News" ("PLN") and other PLN publications by CDCR prisoner

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subscribers. Plaintiff alleges that Defendants' actions violate its rights under the First and

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Fourteenth Amendments to the United States Constitution, and seeks injunctive and declaratory

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relief pursuant to 42 U.S.c. § 1983. Plaintiffalso seeks damages to be proven at trial as to

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violations of clearly established rights.

JURISDICTION AND VENUE

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2.

This lawsuit is brought pursuant to 42 U.S.C. Section 1983 against all Defendants for

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actions under color of state law in violation of the First and Fourteenth Amendments to the United

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States Constitution. Jurisdiction of this Court is invoked pursuant to 42 U.S.C. § 1983 and 28

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U.S.c. §§ 1331, 1343(a)(3), in that this action is brought to redress deprivation, under color oflaw,

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of rights secured by the Constitution of the United States. This Court has jurisdiction to grant

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declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and is empowered to grant injunctive

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relief pursuant to Fed. R. Civ. P. 65.

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substantial part of the events or omissions giving rise to Plaintiff s claims occurred in this district.

INTRADISTRICT ASSIGNMENT

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Venue is proper in this judicial district pursuant to 28 U.S.c. § 1391(b) because a

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Pursuant to Civil L.R. 3-5, assignment to this division is proper because a substantial

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part of the events or omissions giving rise to Plaintiffs claims occurred in the counties served by

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this division.

THE PARTIES

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Plaintiff PRISON LEGAL NEWS ("PLN") is a non-profit, charitable Washington

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corporation under IRS Code § 501(c)(3) with its office in Seattle, Washington. PLN publishes

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"Prison Legal News," ("PLN") a monthly journal of prison news, court decisions and other

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developments affecting the civil and human rights of prisoners. PLN also distributes prisoner-

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oriented books. PLN has approximately 5,000 subscribers in all fifty states and abroad.
-1COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

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Approximately eighty (80) percent of PLN subscribers are state and federal prisoners, including

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many prisoners in the CDCR's custody. CDCR prisoners constitute approximately twenty (20)

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percent ofPLN's prisoner subscribers.

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The Defendants listed below are sued in their official capacities for equitable relief

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only as to each and every violation of federal rights included in this complaint. Defendants are

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sued in their individual capacities for damages only with respect only to violations offederal rights

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that have been clearly established. To the extent that federal rights have not been clearly

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established, Defendants are sued in their official capacities only and for equitable relief only.

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Defendant ARNOLD SCHWARZENEGGER ("SCHWARZENEGGER") is the

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Governor of the State of California, a position he has held since approximately November of 2003.

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Defendant SCHWARZENEGGER has ultimate responsibility for the promulgation of CDCR

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policies, procedures, and practices. As to all claims presented herein against him, Defendant

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SCHWARZENEGGER is being sued in his individual capacity for damages associated with

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clearly established federal rights, and in his official capacity for injunctive and declaratory relief.

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At all relevant times, Defendant SCHWARZENEGGER has acted under color of state law.

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Defendant JAMES E. TILTON ("TILTON") is the Secretary of the California

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Department of Corrections and Rehabilitation ("CDCR"), a position he has held since

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approximately September 2006. Defendant TILTON has ultimate responsibility for the

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promulgation and implementation of CDCR policies, procedures, and practices and for the

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managementof the CDCR. As to all claims presented herein against him, Defendant TIL TON is

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being sued in his individual capacity for damages associated with clearly established federal rights,

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and in his official capacity for injunctive and declaratory relief. At all relevant times, Defendant

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TILTON has acted under color of state law.

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Defendants KINGSTON W. PRUNTY, JR. ("PRUNTY") and STEVE KESSLER

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("KESSLER") are the Undersecretaries of the CDCR. Defendants PRUNTY and KESSLER are

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responsible for the promulgation and implementation of policies, procedures, and practices at the

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CDCR. As to all claims presented herein against them, Defendants PRUNTY and KESSLER are

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being sued in their individual capacities for damages associated with clearly established federal
-2COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 u.s.C. §1983 AND DAMAGES

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rights, and in their official capacities for injunctive and declaratory relief. At all relevant times,

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Defendants PRUNTY and KESSLER have acted under color of state law.

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Defendant SCOTT KERNAN ("KERNAN") is the Chief Deputy Secretary, Division

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of Adult Operations of the CDCR. Defendant KERNAN is responsible for the promulgation and

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implementation of policies, procedures, and practices at the CDCR. As to all claims presented

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herein against him, Defendant KERNAN is being sued in his individual capacity for damages

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associated with clearly established federal rights, and in his official capacity for injunctive and

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declaratory relief. At all relevant times, Defendant KERNAN has acted under color of state law.

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Defendant LEA ANN CHRONES ("CHRONES") is the Director of Adult

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Institutions of the CDCR. Defendant CHRONES is responsible for the promulgation and

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implementation of policies, procedures, and practices at the CDCR. As to all claims presented

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herein against her, Defendant CHRONES is being sued in her individual capacity for damages

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associated with clearly established federal rights,· and in her official capacity for injunctive and

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declaratory relief. At all relevant times, Defendant CHRONES has acted under color ofstate law.

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12.

Defendant MARISELA MONTES ("MONTES") is the Chief Deputy Secretary,

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Division of Adult Programs of the CDCR. Defendant MONTES is responsible for the

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promulgation and implementation of policies, procedures, and practices at the CDCR. As to all

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claims presented herein against her, Defendant MONTES is being sued in her individual capacity

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for damages associated with clearly established federal rights, and in her official capacity for

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injunctive and declaratory relief. At all relevant times, Defendant MONTES has acted under color

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of state law.
FACTS

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Plaintiff publishes a monthly magazine, "Prison Legal News," and also distributes

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books and other materials pertaining to the legal rights of prisoners and the conditions affecting

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them. PLN is comprised of writings from legal scholars, attorneys, inmates and news wire

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services. Each issue of PLN contains articles on recent court decisions, as well as practical advice

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for prisoners on how to litigate and otherwise protect their legal rights. PLN includes regular

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columns designed to assist prisoners who are not represented by counsel, including "Habeas Hints"
-3COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

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and "Pro Se Tips and Tactics." PLN consists of speech on matters of public concern and is thus

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entitled to the highest degree of protection under the First Amendment.

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PLN has approximately 5,000 subscribers in all fifty states and abroad.

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Approximately eighty (80) percent of PLN subscribers are state and federal prisoners, including

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prisoners in the CDCR custody. CDCR prisoners constitute approximately twenty (20) percent of

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PLN's prisoner subscribers. The purpose ofPLN, as stated in its Articles of Incorporation, Article

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III, Part 6 is "to educate prisoners and the public about the destructive nature of racism, sexism,

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and the economic and socialcosts of prisons to society."

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PLN contains content that is of particular interest to prisoners who are in disciplinary

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segregation, including reports of court decisions on the rights of prisoners in disciplinary

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proceedings. For example, the December 2004 issue ofPLN included an article on Piggie v.

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Cotton, 344 F.3d 674 (7th Cir. 2003), holding that a prisoner facing disciplinary proceedings is

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entitled to disclosure of exculpatory evidence.

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ptN consists of speech on matters of public concern, and is thus entitled to the

highest degree of protection under the First Amendment.
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PLN currently has, and at all relevanttimes has had, numerous paid subscribers who

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are prisoners in the custody of the CDCR. By paying for their subscriptions, these prisoners have

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expressed their desire to receive Plaintiffs legal journal.

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Until approximately January of2003, CDCR prisoners who subscribed to PLN or

ordered other publications from PLN received those publications without incident.
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In approximately January 2003, Defendants began refusing delivery ofPLN and

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PLN's publications to inmate subscribers in the custody ofCDCR (hereinafter, the "censorship

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policies"). CDCR institutions invoked censorship policies for a variety of reasons, all of which

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violate PLN's Constitutional rights. Several institutions refused to deliver PLN to inmate

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subscribers because they lacked the appropriate labels or because PLN was not an "approved

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vendor" ofthe institutions. Other institutions refused to deliver PLN because the recipients were

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housed in Reception Centers or Administrative Segregation units. Other institutions refused to

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deliver hardcover books distributed by PLN due to hardcover bans in individual institutions. Still
-4COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.C. §1983 AND DAMAGES

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other institutions refused to allow gift or donated subscriptions to CDCR inmates or refused

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publications that exceeded two pounds in weight. Other institutions designated books and

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periodicals as "special purchases" meaning that inmates could order them only on a quarterly 'basis.

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Other institutions destroyed standard mail sent by PLN to its subscribers when the mail was not

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deliverable to the addressee rather than return that mail to PLN or to the Post Office.

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Plaintiff is informed and believes, and thereon alleges, that at least twenty two (22)

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CDCR institutions prohibit inmates from possessing, ordering, and/or receiving hardcover

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publications, although there are obvious less restrictive means to achieve any legitimate

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penalogical goal concerning prisoners' receipt or possession of hard cover books.

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There is no limit to how long a CDCR prisoner may be confined in Administrative

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Segregation ("Ad Seg"). Some CDCR prisoners are confined in Ad Seg for many months or even

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years. Similarly, prisoners can be housed in reception centers ("RC's") for many months or even

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years.

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Since the censorship policies were implemented, PLN has received numerous

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complaints from subscribers whose access to the subscriptions for which they have paid has been

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blocked, or imminently will be blocked, pursuant to the censorship policies. Some CDCR

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prisoners have expressed their intention not to subscribe or not to renew their current subscriptions

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because of the censorship policies. Inmates also refuse to order other publications distributed by

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PLN because they know that the prisons will ban them pursuant to censorship policies.

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On November 18,2003, the United States Court of Appeals for the Ninth Circuit

upheld the District Court's decision that a vendor label policy at Pelican Bay State Prison

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Corrections, et al. (9th Cir, 2003) 350 F.3d 917. The prison required that books and magazines

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mailed to the prison have approved vendor labels affixed to them. Due to other protections in

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place regarding contraband and security, the District Court and Ninth Circuit held that such a

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policy was not rationally related to the prison's asserted interest in security and issued a permanent

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injunction prohibiting state officials at PBSP from enforcing the policy. Plaintiff is informed and

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believes, and thereon alleges, that at least three CDCR institutions still require that PLN books and
-5COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

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periodicals be mailed with approved vendor labels affixed to them.
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At various times,PLN and others have contacted the CDCR or particular institutions

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regarding the unlawful censorship policies. For example, on April 3, 2003, the Prison Law Office

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wrote a letter to Edward Alameida, the Director of CDCR (then "CDC") at that time. The letter

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documented the practice by two CDCR institutions of denying books to prisoners housed in Ad

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Seg units and RC's. For example, California Institution for Men ("CIM") refused to forward a law

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dictionary and legal research book ordered from PLN to an inmate housed in the reception center

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segregation unit. CIM staff returned the book to PLN with a notice stating "books not allowed

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where inmate is housed." Plaintiffis informed and believes, and thereon alleges, that at least

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thirteen (13) CDCR institutions impermissibly prohibit inmates in Ad Seg and/or RC's from

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possessing, ordering, and/or receiving books, magazines and other publications.

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On March 19, 2004, PLN wrote to Jeanne Woodford, the Director ofCDCR at that

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time. PLN complained that CDCR institutions failed to deliver PLN to inmates housed in Ad Seg

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and failed to deliver PLN publications because PLN failed to utilize special labels required by the

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prisons. PLN received only a cursory response to those concerns from a Facility Captain atthe

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Institutions Division.

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On March 8, 2005, PLN wrote a letter to California State Prison, Los Angeles

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County ("LAC") attempting to get on the "approved vendor" list of thatprison so that it could send

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PLN publications to inmates housed at LAC. LAC never responded to that letter.

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On September 19, 2005, counsel for PLN sent yet another demand letter to CDCR

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personnel, including Defendants named in this complaint. That letter outlined the various

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censorship policies at CDCR institutions and demanded that the violations cease.

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Defendants have never provided PlaintiffPLN with notice that itsjournal or books

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mailed to its subscribers in the CDCR have been withheld from those subscribers, nor any

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opportunity to be heard. On information and belief, some issues of PLN that were sent to

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subscribers in the CDCR have been forwarded to unknown destinations or destroyed by

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Defendants without any notice to Plaintiff. CDCR institutions do not have uniform, or perhaps

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any, procedures in place to notify publishers and distributors of the institutions' refusal to deliver
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42 U.S.c. § 1983 AND DAMAGES

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publication to prisoners, nor do they have sufficient, or perhaps any, procedures in place that would

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allow publishers and distributors to appeal such refusals.

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Defendants'vendor approval processes are arbitrary, ill-defined and haphazard.

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Defendants have not promulgated a standardized means, mechanism or set of criteria for approving

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book and magazine vendors atCDCR institutions. Many of the individual institutions appear to

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have no vendor-approval processes at all while others implement unaccountable, discretionary

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review without discernible guidelines. Where vendor approval procedures exist, there are no

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uniform, or perhaps any procedures to notify or inform vendors of their requirements, no uniform,

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or perhaps any procedures to notify or inform vendors of a timeframe within which a decision will

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be made, and no uniform, or perhaps any procedures to notify or inform vendors how to appeal a

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denial of approved vendor status. For instance, someCDCR institutions have apparently instituted

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arbitrary approval processes that must go through prison chaplains with no apparent appeal

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procedure. Despite many requests by the PLN regarding the vendor-approval processes in

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individual institutions, Defendants have refused to provide Plaintiff with notice of the vendor-

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approval processes and have failed to implement procedural safeguards regarding approved

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vendors, including the opportunity to challenge denial of approved vendor status.

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30.

PlaintiffPLN has an interest, protected by the First and Fourteenth Amendments, in

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communicating with CDCR prisoners who have subscribed to its journal. Plaintiff has been

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harmed and continues to be harmed by Defendants' interference with that communication.

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Plaintiff has also been harmed and continues to be harmed by the loss of revenue as CDCR

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prisoners are deterred and prevented from subscribing to PLN.

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31.

Defendants continue to enforce the censorship policies as of the date of this

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Complaint. Plaintiff PLN is suffering irreparable harm as a result of Defendants' ongoing

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violations of its Constitutional rights, and therefore Plaintiff has no adequate remedy at law. These

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violations are continuing and will continue until enjoined by this Court.

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-7COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42

u.s.c. §1983 AND DAMAGES

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CLAIMS FOR RELIEF

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FIRST CLAIM FOR RELIEF

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(For Violations of the First Amendment Under Color Of State Law; Section 1983)

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Plaintiff realleges and incorporates herein by reference each of the allegations

contained in the preceding paragraphs of this Complaint.
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The censorship policies violate Plaintiffs right to freedom of expression as

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guaranteed by the First Amendment to the United States Constitution, made applicable to the states

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by the Fourteenth Amendment to the United States Constitution.

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As a direct and proximate result of Defendants' conduct in violation of Plaintiffs

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First Amendment rights as set forth above, Plaintiff has suffered, and continues to suffer, lost

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business income, lost business good will and emotional distress.

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35.

Defendants' actions and inactions are motivated by evil motive and intent and are

committed with reckless and callous indifference to Plaintiffs federally protected rights.
WHEREFORE, Plaintiff prays for: (a) judgment declaring that the acts, conduct and

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omissions of Defendants violate the First Amendment to the United States Constitution; (b) an

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order enjoining Defendants and their employees, agents, and any and all persons acting in concert

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with them from further violation of Plaintiffs First Amendment rights; (c) damages against

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Defendants subject to proof at trial; (d) an order awarding Plaintiffs reasonable attorney' fees,

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litigation expenses, and costs pursuant to 42 U.S.C. § 1988 and any other applicable law.

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SECOND CLAIM FOR RELIEF

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(For Violations of Fourteenth Amendment Due Process Clause Under Color Of State Law;
Section 1983)

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Plaintiffrealleges and incorporates herein by reference each of the allegations

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contained in the preceding paragraphs of this Complaint.
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By failing to give Plaintiff notice of the censorship of its publications, and an

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opportunity to be heard with respect to that censorship, Defendants have deprived and continue to
deprive Plaintiff ofliberty and property without due process oflaw, in violation of the Fourteenth

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Amendment to the United States Constitution.
-8COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

( .

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38.

Defendants' actions and inactions are motivated by evil motive and intent and are

committed with reckless and callous indifference to Plaintiffs federally protected rights.
WHEREFORE, Plaintiff prays for: (a) judgment declaring that the acts, conduct and

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omissions of Defendants violate the First Amendment and Fourteenth Amendment due process

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clause; (b) an order enjoining Defendants and their employees, agents, and any and all persons

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acting in concert with them from further violation of Plaintiffs First Amendment and Fourteenth

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Amendment due process rights; (c) damages against Defendants subject to proof at trial; (d) an

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order awarding Plaintiffs reasonable attorneys' fees,

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U.S.c.§ 1988 and any other applicable law.

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litiga~ion

expenses and costs pursuant to 42

PRAYER FOR RELIEF
The conduct previously alleged, unless and until enjoined by order of this Court, will cause

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great and irreparable injury to Plaintiff. Further, a judicial declaration is necessary and appropriate

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at this time so that all parties may know their respective rights and act accordingly.

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WHEREFORE, Plaintiffprays for judgment as follows:

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1.

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A declaration that Defendants' actions, described herein, violate the First and

Fourteenth Amendments to the United States Constitution;
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An order enjoining all Defendants and their employees, agents, and any and all

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persons acting in concert with them from further violation of Plaintiff s civil rights under the First

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and Fourteenth Amendments to the United States Constitution;

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3.

An order awarding actual damages in an amount to be proven at trial for violations of

federally protected rights that have been clearly established;
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An order awarding punitive damages in an amount to be proven at trial for violations

of federally protected rights that have been clearly established;
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An order awarding Plaintiff s reasonable attorneys' fees, litigation expenses and

costs pursuant to 42 U.S.C. § 1988 and any other applicable law;

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-9COMPLAINT FOR DECLARA TORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.C. § 1983 AND DAMAGES

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6.

An order awarding such other and further relief as the Court deems just and proper.
Respectfully submitted,

Dated: April 12, 2007 .

ROSEN, BIEN & GALV

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DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury trial.

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Dated: April 12, 2007
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Respectfully submitted,
ROSEN, BIEN & GALVAN, LLP

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-10COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. §1983 AND DAMAGES