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Prisoner Education Guide

Prison Legal News v. Freeman, Complaint, Fulton County Jail Censorship 2007

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PRISON LEGAL NEWS,
Plaintiffs,
vs.

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)
)
)
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CIVIL ACTION
FILE NO. ____________

FULTON COUNTY, GA and
SHERIFF MYRON FREEMAN,
individually and in his official
capacity as Fulton County Sheriff, )
)
Defendants.
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COMPLAINT
COME NOW Plaintiffs PRISON LEGAL NEWS files this action
challenging Fulton County, Georgia and Fulton County Sheriff Myron
Freeman’s policy barring prisoners’ receipt of any and all books, magazines,
and newspapers (other than religious publications). This policy is challenged
both on its face, and as applied to Prison Legal News. Despite an order in
Daker v. Barrett, No. 1:00-CV-1065-RWS (July 22, 2002) finding this Reading
Materials Policy unconstitutional, the policy is still being applied as to Prison
Legal News, whose subscribers’ copies of the publication are being returned
to the sender or destroyed.
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JURISDICTION
1.
This action arises under the authority vested in this Court by virtue of 42
U.S.C. §§ 1983 & 1985, 28 U.S.C. § 1331, 28 U.S.C. §§ 2201 & 2202, 28
U.S.C. § 1343(3) and 28 U.S.C. § 1367 (pendent jurisdiction).

Venue is

proper in this Court.
PARTIES
2.
Plaintiff PRISON LEGAL NEWS publishes a subscriber based
publication for inmates, lawyers and advocates about prison issues in the
United States and abroad.
3.
Defendant FULTON COUNTY oversees and is responsible for the
Fulton County Jail. Defendant MYRON FREEMAN is the Fulton County
Sheriff and is responsible for establishing final policies and procedures for the
Fulton County Jail relating to inmate mail.
FACTUAL ALLEGATIONS
Prison Legal News
4.

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Prison Legal News (PLN) is an independent, monthly magazine that
provides review and analysis of prisoner rights, court rulings and news about
prison issues. PLN has a national focus on both state and federal prison
issues, with international coverage as well. PLN provides information that
enables prisoners and other concerned individuals and organizations to seek
the protection and enforcement of prisoner's rights at the grass roots level.
5.
PLN began operations in 1990 and is a 501(c)(3) non-profit
organization. PLN's business office is located in Seattle, Washington. PLN's
editorial office is located in Brattleboro, Vermont.
6.
PLN is primarily funded by subscription and advertising revenue and
book sales and individual donations.
7.
PLN’s' coverage includes articles regarding court access, disciplinary
hearings, prison conditions, excessive force, mail censorship, jail litigation,
visiting, telephones, religious freedom, free speech, prison rape, abuse of
women prisoners, retaliation, the Prison Legal Reform Act (PLRA), medical
treatment, AIDS, the death penalty, control units, attorney fees and much

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more.

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8.
Deleted: May

As of October 2007 PLN has a circulation of approximately 6,700
hardcopy issues per month. PLN also has subscribers in European and Asian
countries. About 65% of PLN's subscribers are state and federal prisoners.
The balance of PLN's subscribers include civil and criminal trial and appellate
attorneys, public defender agencies, judges, journalists, academics,
paralegals, public and university libraries, prison law libraries, investment
bankers, prison rights activists, students, family members of prisoners and
concerned private individuals. State-level government officials also subscribe
to PLN, including attorney generals, prison wardens, and members of other
prisoner related agencies. PLN has prisoner subscribers in all fifty states.
Based on PLN's November 2005 reader survey each subscriber's magazine is
read by an average of almost 9 people, so the monthly readership of PLN is
Deleted: 54

around 60,000.
9.
PLN has "regular" writers and also solicits and publishes articles written
by other writers, many of them in prison. Authors who have published in PLN
include: Noam Chomsky, Dan Savage, William Kunstler and Ron Kuby,
Mumia Abu-Jamal, Ken Silverstein, Jennifer Vogel, Adrian Lomax, Raymond

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Luc Levasseur, John Perotti, Willie Wisely, Christian Parenti, William Greider,
and Noelle Hanrahan.
Fulton County Mail Policy
10.
The Fulton County Jail has a policy, adopted and/or ratified by
Defendant-Freeman as final decision-maker for Defendant Fulton County, that
reading materials mailed to inmates are returned to the sender or destroyed
without notice to the inmate-subscriber or the publisher/sender. The policy
provides: “Books, magazines, and newspapers for inmates shall not be
accepted. The only exceptions are religious publications (soft covered), that is
(sic) ordered directly from the publisher or provided by approved religious
groups. Copies of books or publications, etc., shall not be accepted.”
(hereinafter “Reading Materials Policy”) (Policy V (J)(1) titled “Inmate Mail
Procedures” dated January 1, 2002) (A true and correct copy of the policy is
attached as Exhibit A). This policy was continued, affirmed and/or ratified by
Defendant Freeman by order dated January 3, 2005. (A true and correct copy
of this Memoranda is attached as Exhibit B).
11.
The Reading Materials Policy was challenged by an inmate, and found

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to be unconstitutional in Daker v. Barrett, No. 1:00-CV-1065-RWS (July 22,
2002) (A true and correct copy of this Order is attached as Exhibit C).

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12.
Clearly established law dictates the unconstitutionality of the Reading
Materials Policy.
13.
Deleted: a

Since the Daker decision, Defendants have failed to abandon the
Reading Materials Policy. Several inmates have filed additional lawsuits
challenging the policy, and continued denial of reading materials. See, e.g.,
Daker v. Barrett, No. 1:05-MI-0398 (Dec. 28, 2005); Robertson v. Freeman,
No. 1:06-CV-01940-CAM (Aug. 1, 2006).
14.
PLN has several subscribers to its publication housed in the Fulton
Deleted: ,

County Jail. These inmates are sent copies of PLN by standard rate and firstclass mail.
15.
These subscribers have not received their copies of PLN, and have
reported filing grievances concerning the publication ban.
16.
Copies of PLN, sent to inmate-subscribers, have been returned to PLN
by the Defendants or destroyed. PLN has also been informed by subscriber-

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inmates that

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they have not received copies of PLN. PLN is only aware of one copy of its
publication reaching a subscriber in the Fulton County Jail in the last year. At
no point has PLN been provided with notice that its publications are being
censored nor with an opportunity to administratively appeal said decisions.
17.
PLN has suffered financial damages, as well as particularized loss of
their constitutional rights and harm to its business reputation.
18.
Because Defendant-Freeman has continued to engage in the
constitutionally impermissible Reading Materials Policy for several years since
a finding of unconstitutionality, and in the face of several lawsuits and
grievances, punitive damages are available due to his reckless, and deliberate
indifference to constitutional rights and his actual knowledge of continued
enforcement of unconstitutional policies.
19.
All actions of defendants were under color of law and pursuant the
policies and procedures of Fulton County.
CAUSES OF ACTION
20.

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Each and every allegation is incorporated herein for each claim for relief.

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21.
Plaintiff has a free speech and press right to communicate with inmates
through the distribution of Prison Legal News and inmates retain a right to
receive the publication under the United States and Georgia Constitutions’
free speech, free press and due process clauses.
22.
The Fulton County Jail’s absolute ban on subscription publications is in
violation of the free expression protections of the United States and Georgia
Constitutions.
23.
There are no individualized determinations made about particular
publications by the Fulton County Jail.
24.
A blanket prohibition on receipt of publications intended for delivery to
and receipt by a prisoner is presumptively unconstitutional.
25.
The Fulton County Jail’s absolute ban on subscription publications is (1)
overbroad and overinclusive, (2) arbitrary and capricious, (3) not reasonably
related to legitimate penological interests and (4) gives unbridled discretion to

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licensing authorities in violation of the Due Process and Free Speech and
Press protections of the United States and Georgia Constitutions.
26.
The Fulton County Jail’s absolute ban on subscription publications is not
rationally related to a legitimate, neutral government objective, there are no
alternate means for Plaintiffs or inmates to express themselves, the
accommodation of the constitutional rights asserted will not have a detrimental
impact on prison staff, inmates and the allocation of jail resources and the
outright ban is an exaggerated response to prison concerns.
27.
The Fulton County Jail’s ban on subscription publications does not bear
a logical connection between any asserted governmental interests and is too
broad to render its absolute ban rational.
28.
The handful of publications in the Fulton County Jail library, primarily
works of fiction provided when an inmate trustee pushes a cart through each
zone periodically, provide insufficient alternative reading material for inmates,
and Plaintiff has no alternative manner for communicating with their
subscribers.

On information and belief, no magazines or newspapers are

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available in the jail library and the Atlanta Constitution is the only publication
sold in the jail commissary.
29.
Defendants cannot articulate or particularize a detrimental impact on
prison staff, inmates or prison resources that would justify either the blanket
ban or a particular ban on the distribution of the Prison Legal News.
Distribution of publications through the regular mail distribution procedures
would not create an excessive burden.
30.
The Fulton County Jail’s absolute ban on subscription publications is an
exaggerated response in light of obvious alternatives such as (1) a “publishers
only rule,” (2) individualized determinations for security concerns, (3)
utilization

of

disciplinary

action

if

particular

inmates

abuse

the

mail/publications process.
31.
The Fulton County Jail’s absolute ban on subscription publications is
also accompanied by a failure to notify inmates or PLN that publications have
been rejected. The failure to notify inmates and PLN of the denial of
publications impact the Plaintiff who has undertaken financial expense to

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maintain subscribers and to ensure delivery of the Prison Legal News. This
failure to notify subscribers or Plaintiff or to provide a reasonable opportunity
to challenge decisions to refuse distribution of publications to a neutral
decisionmaker not involved in the initial decision violates procedural due
process requirements of the United States and Georgia Constitutions.
32.
The Reading Materials Policy states one exception to the absolute ban:
“The only exceptions are religious publications (soft covered), that is ordered
directly from the publisher or provided by approved religious groups.”

This

exception renders the Reading Materials Policy a content-based restriction on
speech that favors religious expression in violation of the free expression,
equal protection and separation of church and state provisions of the United
States and Georgia Constitutions.
33.
The case law is clear as to the constitutional claims, and a previous
decision held that the Defendants conduct was unlawful over five years ago.
Defendant Freeman, individually, is not entitled to qualified immunity and his
actions meet the requirements for punitive damages. Damages are also
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sought against Defendant-Fulton County for promulgating and ratifying an

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unconstitutional policy.

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PRAYERS FOR RELIEF
WHEREFORE, Plaintiff prays that this Court grant the following relief:
(1) Declaratory judgment that the Fulton County Jail’s Reading Materials
Policy, an absolute ban on subscription publications and no due process
notice when publications are banned, violates the Free Expression and Due
Process clauses of the United States and Georgia Constitutions;
(2) Preliminary and Permanent Injunctive Relief against further
enforcement of the Fulton County Jail’s Reading Materials Policy;
(3) Preliminary and Permanent Injunctive Relief permitting distribution of
the Prison Legal News;
(4) Preliminary and Permanent Injunctive Relief requiring notification to
PLN of any failure to distribute copies of the Prison Legal News;
(5) Nominal, compensatory and punitive damages against DefendantFreeman in his individual capacity in an amount to be determined by a jury;
Nominal and compensatory damages against defendant Fulton County
in an amount to be determined by a jury.
(6) Reasonable attorneys’ fees, expenses and costs of litigation
pursuant to
42 U.S.C. § 1988 and other applicable laws; and
(7) Such further relief as this Court deems just and proper.
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DATED: This the 18th day of October, 2007.

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Respectfully submitted,
Attorneys for Plaintiff
/s Gerald Weber
___________________________
__
Gerald Weber
Georgia Bar No. 744878
Post Office Box 5391
Atlanta, GA 31107
Tel: (404) 522-0507
wgerryweber@gmail.com

/s Brian Spears
___________________________
__
Brian Spears
Georgia Bar No. 670112
1126 Ponce de Leon Ave.
Atlanta, GA 30306
Tel: (404) 872-7-86
Bspears@mindspring.com

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