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The Habeas Citebook Ineffective Counsel

PLN v. MTC Corp, et al., NM, Complaint, censorship, 2016

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Case 1:16-cv-01174 Document 1 Filed 10/25/16 Page 1 of 11

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.
MANAGEMENT & TRAINING CORPORATION,
a Utah Corporation;
RICK MARTINEZ, individually and in his official
capacity;
DOES 1-10, individually and in their 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.

INTRODUCTION

1. Plaintiff, PRISON LEGAL NEWS (“PLN” or “Plaintiff”), a registered trade name of the
HUMAN RIGHTS DEFENSE CENTER (“HRDC”), brings this action to enjoin Defendants’
censorship of books sent from Plaintiff and other publishers to prisoners at the Otero County
Prison Facility (“Otero Prison”), in violation of the First and Fourteenth Amendments of the
United States Constitution. Defendants have adopted and implemented mail policies prohibiting
delivery of written speech from Plaintiff and other speakers, failing to provide due process notice
of and an opportunity to challenge the censorship, and denying Plaintiff equal protection as
required under the Constitution.
II.

JURISDICTION AND VENUE

2. This action is brought pursuant to 42 U.S.C. § 1331 (federal question), as this action
arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343
(civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983.

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3. Venue is proper under 28 U.S.C. § 1391(b). 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. PLN’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
PLN by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution and the 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 Rules 57 and 65 of the Federal Rules of Civil Procedure, as
well as nominal and compensatory damages, against all Defendants.
6. PLN’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. PLN is informed, believes, and based thereon alleges that the individual Defendants acted
as described herein with the intent to injure, vex, annoy and harass PLN, and subjected PLN to
cruel and unjust hardship in conscious disregard of PLN’s rights with the intention of causing
PLN injury and depriving it of its constitutional rights.
8. As a result of the foregoing, PLN seeks compensatory and punitive damages against the
individual Defendants.
III. PARTIES
9. PLN is a registered trade name 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. The purpose of PLN, as stated in HRDC’s

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Articles of Incorporation, is to educate prisoners and the public about the destructive nature of
racism, sexism, and the economic and social costs of prisons to society. PLN accomplishes its
mission through litigation, advocacy, and publication and/or distribution of books, magazines
and other information concerning prisons and prisoner rights.
10.

Defendant, Management and Training Corporation (“MTC”), is a Utah-based

corporation.

MTC provides correctional operation management services to state and local

governments around the world and to the New Mexico Department of Corrections (“NMDOC”).
At all times material to this action, MTC contracted with NMDOC to operate and manage the
Otero Prison in Otero County, New Mexico. The Otero Prison confines a number of prisoners
who have been prohibited receipt of PLN’s books.
11.

Defendant, Rick Martinez, is the Warden of the Otero Prison. Defendant Martinez has

ultimate responsibility for the promulgation and enforcement of all Otero Prison staff policies
and procedures and is responsible for the overall management of the Otero Prison, to include
processing of mail.
12.

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 were personally
involved in the adoption and/or implementation of the mail policies at the Otero Prison, and/or
were responsible for the hiring, screening, training, retention, supervision, discipline, counseling,
and/or control of Otero Prison staff who interpret and implement these mail policies. PLN will
seek to amend this Complaint as soon as the true names and identities of Defendants DOES 1
through 10 have been ascertained.

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13.

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.
14.

At all times material to this action, all Defendants were acting within the course and

scope of their employment as agents and/or employees of Defendant MTC.
IV.
A.
15.

FACTUAL ALLEGATIONS

PLN’s mission and outreach to the Otero Prison

For more than 25 years, the focus of PLN’s mission has been public education,

advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal
redress for infringements of their constitutionally guaranteed and other basic human rights.
PLN’s mission, if realized, has a salutary effect on public safety.
16.

To accomplish its mission, PLN publishes and distributes books, magazines, and

other information containing news and analysis about prisons, jails and other detention facilities,
prisoners’ rights, court rulings, management of prison facilities, prison conditions and other
matters pertaining to the rights and/or interests of incarcerated individuals. For example, PLN
publishes and distributes approximately fifty (50) different softcover 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.
17.

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

prisoners, attorneys, journalists, public libraries, judges, and members of the general public.
PLN distributes its publications to prisoners and law librarians in more than 2,600 correctional

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facilities located across all fifty states, including the Federal Bureau of Prisons and various
facilities within the NMDOC.
18.

Accordingly, PLN engages in core protected speech and expressive conduct on matters

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

For years, PLN has sent its books to individual prisoners at the Otero Prison without

censorship. However, on information and belief, in February 2015, the Otero Prison adopted a
new policy and practice prohibiting receipt of PLN’s books sent to individual prisoners at the
facility. Specifically, since February 2015, PLN has sent the following books to prisoners held at
the Otero Prison: 1) The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas
Citebook”), which describes the procedural and substantive complexities of federal habeas
corpus litigation with the goal of identifying and litigating claims involving ineffective assistance
of counsel; 2) Protecting Your Health and Safety (“PYHS”), which describes the rights,
protections and legal remedies available to prisoners concerning their incarceration; and 3)
Prisoners’ Guerilla Handbook: A Guide to Correspondence Programs in the United States and
Canada (“Prisoners’ Handbook”), which provides prisoners information on enrolling at
accredited higher educational, vocational and training schools.
20.

Defendants censored these books and did not deliver them to the intended prisoner-

recipients at the Otero Prison. Some of these books were returned to PLN in their original
packaging with an ink stamp on the outside stating that the contents were not allowed. Other
books were returned to PLN with no ink stamp or other notation on the outside whatsoever, but

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simply a return to sender label directing PLN to pay the cost of the return postage. The vast
majority of the books sent to the prisoners, however, were never returned to PLN.
21.

Further, Defendants failed to provide PLN any notice or opportunity to appeal these

censorship decisions.
B. Defendants’ Unconstitutional Mail Policies and Practices
22.

On information and belief, Defendants’ mail policy and practice bans books sent by

PLN and other senders to prisoners at the Otero Prison because the books: (1) have not been preapproved by Defendants; (2) the sender is not on an approved vendor list; and/or (3) were not
purchased through the Otero Prison business office.
23.

As a direct and proximate cause of this policy and practice, Defendants specifically

exclude some publishers and vendors, like PLN, from sending their books to prisoners at the
Otero Prison, while allowing other publishers and vendors access to these same prisoners. On
information and belief, Defendants’ approved vendor list is limited to a few select vendors and
therefore does not allow prisoners to obtain publications from vendors that distribute books or
other publications that are not available from the select group of approved vendors.
24.

Defendants do not as a policy or practice provide senders of censored mail notice and

an opportunity to appeal the denial of the mail to the intended prisoner.
25.

Defendants’ mail policy and practices violates PLN’s First Amendment right to free

speech, and its Fourteenth Amendment rights to due process of law and equal protection.
26.

Said mail policies and practices are the moving force behind the constitutional

violations at issue herein.
27.

The accommodation of the free speech, expression, equal protection and due process

rights of PLN with respect to written speech protected by the Constitution will not have any

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significant impact on the prison, its staff or prisoners.
28.

Due to Defendants’ actions as described above, PLN has suffered damages, and will

continue to suffer damages, including, but not limited to: the suppression of PLN’s speech; the
impediment of PLN’s ability to disseminate its political message; frustration of PLN’s non-profit
organizational mission; the loss of potential subscribers and customers; and the inability to
recruit new subscribers and supporters, among other damages.
29.

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

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

Defendants, and other agents of the Otero Prison, 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.
31.

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

violate PLN’s rights, and were and are the moving force behind the injuries PLN suffered as a
direct result of the constitutional violations. As such, PLN has no adequate remedy at law.
32.

PLN is entitled to declaratory relief as well as injunctive relief prohibiting Defendants

from refusing to deliver publications and correspondence from PLN and other senders without
any legal justification, and prohibiting Defendants from censoring mail without due process of
law.
V.

CLAIMS

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

PLN realleges and incorporates the allegations of Paragraphs 1 through 32 of the

Complaint as if fully set forth herein.

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34.

The acts described above constitute violations of PLN’s rights, the rights of other

publishers who have attempted to or intend to communicate with prisoners at the Otero Prison,
and the rights of the prisoners confined at the Otero Prison, under the First Amendment to the
United States Constitution.
35.

PLN has a constitutionally protected liberty interest in communicating with

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

The conduct of Defendants was objectively unreasonable and was undertaken

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

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

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

Defendants’ acts described above have caused damages to PLN, and if not enjoined,

will continue to cause damage to PLN.
39.

PLN seeks declaratory and injunctive relief, and nominal, compensatory and punitive

damages against all Defendants. PLN seeks punitive damages against the individual Defendants
in their individual capacities.
Count II – 42 U.S.C. § 1983
Violation of Fourteenth Amendment (Due Process)
40.

PLN realleges and incorporates the allegations of Paragraphs 1 through 39 of the

Complaint as if fully set forth herein.
41.

The acts described above constitute violations of PLN’s rights and the rights of other

publishers who have attempted to or who intend to communicate with prisoners at the Otero
Prison under the Fourteenth Amendment to the United States Constitution.

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42.

Because PLN and others outside the Otero Prison have a liberty interest in

communicating with prisoners, PLN and other senders have a right under the Due Process Clause
of the Fourteenth Amendment to receive notice of and an opportunity to appeal Defendants’
decisions to censor their written speech.
43.

Defendants’ policy and practice fail to provide PLN and other senders with adequate

notice and an opportunity to be heard.
44.

The conduct of Defendants was objectively unreasonable and was undertaken

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

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

proximately caused by the policies and practices of Defendants, which are and were the moving
force of the violations.
46.

Defendants’ acts described above have caused damages to PLN, and if not enjoined,

will continue to cause damage to PLN.
47.

PLN seeks declaratory and injunctive relief, and nominal and compensatory damages

against all Defendants. PLN seeks punitive damages against the individual Defendants in their
individual capacities.
Count III – 42 U.S.C. § 1983
Violation of the Fourteenth Amendment (Equal Protection)
48.

PLN realleges and incorporates the allegations of Paragraphs 1 through 47 of the

Complaint as if fully set forth herein.
49.

By permitting some publications to be delivered to prisoners at the Otero Prison,

while specifically excluding publications sent by PLN and other senders, Defendants violate
PLN’s equal protection rights as guaranteed by the Fourteenth Amendment of the United States
Constitution and 42 U.S.C. § 1983.

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50.

PLN is suffering ongoing and irreparable harm as a direct result of Defendants’

discriminatory treatment, and the harm will continue unless the conduct is enjoined by this
Court.
51.

Defendants’ conduct was objectively unreasonable and was undertaken intentionally

with malice, willfulness, and reckless indifference to PLN’s rights.
52.

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

proximately caused by the policies and practices of Defendants, which are and were the moving
force of the violations.
53.

Defendants’ acts described above have caused damages to PLN, and if not enjoined,

will continue to cause damage to PLN.
54.

PLN seeks declaratory and injunctive relief, and nominal and compensatory damages

against all Defendants. PLN seeks punitive damages against the individual Defendants in their
individual capacities.
VI.

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff respectfully requests relief as follows:
55.

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

56.

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

57.

A preliminary and permanent injunction preventing Defendants from continuing to

violate the Constitution, and providing other equitable relief.
58.

Compensatory damages in an amount to be proved at trial.

59.

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

trial.

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60.

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

applicable law.
61.

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

Plaintiff, Prison Legal News, by and through its attorneys, hereby demands a trial by jury
pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.

Respectfully Submitted,
/s/ Laura Schauer Ives
Laura Schauer Ives, NM Bar No.: 12463
lsi@civilrightslaw.com
1000 2nd Street NW
Albuquerque, NM 87102
/s/ Lance Weber
Lance Weber, Fla. Bar No.: 104550*
lweber@hrdc-law.org
Sabarish Neelakanta, Fla. Bar No.: 26623*
sneelakanta@hrdc-law.org
Human Rights Defense Center
PO Box 1151
Lake Worth, FL 33460
(561) 360-2523
/s/Bruce E.H. Johnson
Bruce E.H. Johnson, WA Bar No.: 7667*
brucejohnson@dwt.com
Davis Wright Tremaine LLP
1201 Third Avenue, Suite 2200
Seattle, WA 98101
*Pro Hac Vice applications to be filed

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