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Prison Legal News v. Clarke, Complaint, Massachussetts DOC Approved Vendor Censorship 2008

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Case 1:08-cv-10677

Document 1

Filed 04/23/2008

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
__________________________________________
)
PRISON LEGAL NEWS,
)
)
Plaintiff,
)
)
Civil Action No.
v.
)
)
HAROLD CLARKE, in his individual and official )
capacities; JAMES BENDER, in his individual and )
official capacities; JOHN MARSHALL, in his
)
individual and official capacities; KATHLEEN
)
DENNEHY, in her individual capacity;
)
)
Defendants.
)
__________________________________________)
COMPLAINT
INTRODUCTION
1.

Plaintiff, Prison Legal News (“PLN”), brings this civil rights action under 42

U.S.C. § 1983 for injunctive and declaratory relief, and for money damages, arising out
Defendants’ violations of Plaintiff’s rights to freedom of speech and the press and to due process
under the First and Fourteenth Amendments.
2.

Plaintiff is an independent non-profit publisher and bookseller. PLN publishes a

monthly magazine, Prison Legal News, and distributes approximately 40 books of special
interest to prisoners. Prison Legal News has prisoner subscribers in all 50 states, and PLN
distributes books to prisoners in 49 state prison systems and in the federal prison system.
Massachusetts alone refuses to permit PLN to distribute books to its prisoners.
3.

From 1998 until 2003, PLN distributed books to prisoners in the custody of the

Massachusetts Department of Corrections (“DOC”) without incident and without any complaints

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from DOC officials. Since approximately 2003, however, DOC has refused to deliver books
distributed by PLN, purportedly because PLN is not one of the handful of “approved vendors”
DOC allows to send books to prisoners. PLN has repeatedly written to DOC officials – including
Defendant HAROLD CLARKE, the current DOC commissioner; Defendant JOHN
MARSHALL, the Assistant Deputy Commissioner; and KATHLEEN DENNEHY, the former
DOC commissioner – requesting that the “approved vendor” policy be eliminated, or that PLN be
added to the approved vendor list. Defendants have denied or ignored PLN’s requests. The DOC
has censored and continues to censor books sent by PLN to DOC prisoners, as well as, on
occasion, Prison Legal News, without giving PLN notice or an opportunity to appeal.
JURISDICTION AND VENUE
4.

This lawsuit is brought pursuant to 42 U.S.C. §1983 and §1988 against all

Defendants for actions under color of state law in violation of the First and Fourteenth
Amendments to the United States Constitution. Jurisdiction is proper pursuant to 28 U.S.C. §§
1331 and 1343(a)(3). Declaratory and further relief are authorized pursuant to 28 U.S.C. §§ 2201
and 2202.
5.

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

substantial part of the events or omissions giving rise to these claims occurred in this district.
PARTIES
6.

Plaintiff, PRISON LEGAL NEWS, is a non-profit, charitable Washington

corporation under IRS Code § 501(c)(3) with its headquarters in Seattle, Washington. PLN
publishes Prison Legal News, a monthly journal of prison news, court decisions, and other
developments affecting the rights of prisoners. PLN also distributes books of interest to
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prisoners. Prison Legal News has approximately 6,800 subscribers in all 50 states and abroad.
Approximately 65 percent of these subscribers are federal and state prisoners, including
approximately 55 prisoners in the DOC’s custody. PLN distributes books to prisoners in 49 states
and in the Federal Bureau of Prisons.
7.

Defendant HAROLD W. CLARKE (“CLARKE”) is Commissioner of the

Massachusetts DOC, a position he has held since November 2007. As Commissioner, CLARKE
has ultimate responsibility for the promulgation and implementation of DOC policies,
procedures, and practices and for the overall management of the DOC. Defendant CLARKE is
being sued in his individual capacity for damages, and in his official capacity for injunctive and
declaratory relief. At all relevant times, Defendant CLARKE has acted under color of state law.
8.

Defendant JAMES BENDER (“BENDER”) is Deputy Commissioner of the

Massachusetts DOC, a position he has held since 2004. The Deputy Commissioner oversees the
daily operations of the DOC, and directly supervises Assistant Deputy Commissioners, including
Defendant MARSHALL. Defendant BENDER is responsible for departmental adherence to
federal and state laws and regulations. For approximately six months in 2007, Defendant
BENDER served as Acting Commissioner of the DOC; as such, he had ultimate responsibility
for the promulgation and implementation of DOC policies, procedures, and practices and for the
overall management of the DOC. Defendant BENDER is being sued in his individual capacity
for damages, and in his official capacity for injunctive and declaratory relief. At all relevant
times, Defendant BENDER has acted under color of state law.
9.

Defendant JOHN MARSHALL, JR. (“MARSHALL”) is Assistant Deputy

Commissioner of the Massachusetts DOC, a position he has held since at least 2003. In this
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capacity Defendant MARSHALL is responsible for the formulation and/or implementation of the
DOC’s policies regarding prisoner property including the approved vendor policy at issue in this
case. Defendant MARSHALL is being sued in his individual capacity for damages, and in his
official capacity for injunctive and declaratory relief. At all relevant times, Defendant BENDER
has acted under color of state law.
10.

Defendant KATHLEEN DENNEHY (“DENNEHY”) was Commissioner of the

Massachusetts DOC from March 2004 until approximately May 2007. As Commissioner,
DENNEHY had ultimate responsibility for the promulgation and implementation of DOC
policies, procedures, and practices and for the overall management of the DOC. Defendant
DENNEHY is being sued in her individual capacity for damages. At all relevant times,
Defendant DENNEHY acted under color of state law.
FACTS
11.

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

books and other written materials concerning the legal rights of prisoners and the conditions
affecting them.
12.

Prison Legal News consists of articles from legal scholars, attorneys, inmates, and

news wire services. Each issue of Prison Legal News contains articles on recent court decisions,
as well as practical advice for prisoners on how to litigate and protect their rights. PLN has been
publishing this magazine since May 1990.
13.

Prison Legal News has approximately 6,800 subscribers in all 50 states and

abroad. Approximately 65 percent of those subscribers are state and federal prisoners.
Approximately 55 inmates confined in Massachusetts DOC facilities subscribe to Prison Legal
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News.
14.

Plaintiff is also a distributor of approximately 40 books and other written

materials of interest to prisoners. Among the titles PLN sells or otherwise distributes are No
Equal Justice: Race and Class in the American Criminal Justice System; Represent Yourself in
Court: How to Prepare and Try a Winning Case; Prisoner Diabetes Handbook: A Guide to
Managing Diabetes – For Prisoners, by Prisoners; and Prison Writing in 20th Century America,
as well as English, Spanish-English, and legal dictionaries. PLN began distributing books in
1998.
15.

PLN distributes the books and written materials in its catalog primarily through

mail order sales. PLN distributes the Prisoner Diabetes Handbook free upon request. PLN also
distributes copies of other titles in its catalog as a promotion to subscribers to the magazine.
16.

PLN is the sole distributor of four publications. Prisoners have no means of

obtaining these titles except through PLN. Plaintiff is also the publisher and sole distributor of
the Prisoners’ Guerrilla Handbook to Correspondence Programs in the United States and
Canada.
17.

By publishing its magazine, and distributing selected books and other

publications, PLN is engaged in expressive activity. Among the ideas and political beliefs that
PLN seeks to communicate are that prisoners have basic human rights, that they are entitled to
safe and humane conditions of confinement, that corrections officers and public servants should
be held accountable when they engage in misconduct, and that encouraging prisoner literacy and
education benefits not only prisoners but society at large. Many of the titles PLN distributes
contain critiques of the American criminal justice and prison systems. From time to time, Prison
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Legal News publishes articles on issues involving the Massachusetts Department of Corrections.
Articles within the past few years include “Massachusetts Prisoner Awarded $250,000 for
Assault During Strip Search,” “Massachusetts Prisoners Battle MRSA, Untreated Hepatitis C,”
and “A Death in Custody: Massachusetts DOC Wracked by Scandal” (about the murder of
defrocked priest John Geoghan).
18.

PLN distributes its books to prisoners incarcerated in state correctional

institutions in every other state but Massachusetts, as well as in the Federal Bureau of Prisons,
without incident. California, the largest state prison system in the country, recently eliminated its
“approved vendor” policy and expressly permits prisoners to receive materials from PLN.
19.

From 1998 until 2003, Massachusetts DOC prisoners regularly ordered and

received PLN books and other publications, including Prison Legal News, without incident. No
DOC employee ever indicated to PLN that its materials created any security or prison
management problem or otherwise threatened any penological interest.
20.

In 2003, the Massachusetts DOC began refusing to deliver to DOC prisoners any

materials from PLN other than the magazine. Since that time, PLN has received multiple
complaints from subscribers whose access to PLN’s books and other publications for which they
have paid – and, on occasion, their subscription to Prison Legal News – has been blocked by
DOC employees pursuant to the policies of Defendants. PLN records indicate in each instance
that the undelivered materials were received by the DOC facility where the inmate resided.
21.

Notwithstanding DOC’s regulations requiring notice and an opportunity for

appeal, see 103 C.M.R. § 481.16, as well as clearly established interpretations of the federal Due
Process Clause, DOC has never notified PLN in any of the instances when it has refused to
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deliver materials from PLN.
22.

Such censorship and lack of notice continue to the present day. As recently as

March 2008, prison officials, in accordance with Defendants’ policies and practices, refused to
deliver two books from PLN to a prisoner at Souza-Baranowski Correctional Center. No notice
was sent to PLN, which learned of the censorship from the prisoner.
23.

Since 2003, PLN has made multiple requests to Defendants to permit it to

distribute its books to DOC inmates. On each occasion, PLN has requested that the DOC
eliminate the pre-approved vendor policy or that, at a minimum, it add PLN to the list of
approved vendors.
24.

Defendants have either ignored these requests or provided groundless reasons for

denying them. In 2003, Defendant Marshall wrote, inter alia, that he could not consider the
request without a copy of PLN’s “foreign registration certificate for the Commonwealth of
Massachusetts,” even though mail-order businesses like PLN, which do not have a physical
presence in Massachusetts, are not required to file any such certificate. In 2005, Defendant
Marshall, acting on Defendant Dennehy’s behalf, denied the request based on the incorrect
assertion that all of the books in PLN’s inventory were available from other, approved sources.
PLN has received no response to its most recent request to be added to the approved vendor list,
which was sent in December 2007 to Defendant Clarke.
25.

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

criteria for approving book and magazine vendors at DOC institutions. The DOC has no uniform
guidelines for vendors seeking approved status, there are no procedures to notify vendors of a
time frame within which a decision will be made, and there are no procedures for notifying
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vendors how to appeal the denial of approved vendor status. Defendants typically do not even
notify vendors that their requests have been denied.
26.

On information and belief, Defendants do not have or do not follow uniform

procedures to notify publishers and distributors of DOC correctional institutions’ refusal to
deliver publications, nor do they have sufficient, or perhaps any, procedures in place that allow
publishers and distributors to appeal such refusals.
27.

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

communicating with DOC prisoners who have subscribed to its magazine and with prisoners
who have ordered, or would like to order, titles from its inventory of books. Plaintiff has been
harmed and continues to be harmed by Defendants’ interference with that communication.
Plaintiff has also been harmed and continues to be harmed by the loss of revenue and good will,
and damage to its business reputation, as DOC prisoners are deterred and prevented from
ordering PLN publications and deterred from subscribing to Prison Legal News.
28.

Defendants continue to engage in the foregoing actions and omissions as of the

date of this complaint. Plaintiff PLN is suffering irreparable harm as a result of Defendants’
continued violations of its constitutional rights, and therefore Plaintiff has no adequate remedy at
law. These violations are continuing and will continue until enjoined by this Court.
CLAIMS FOR RELIEF
Count I:

42 U.S.C. § 1983, for Violations of the First and Fourteenth Amendments,
Against All Defendants

29.

Plaintiff incorporates all of the above paragraphs by reference.

30.

Defendants’ refusal to deliver publications from Plaintiff to prisoners in

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Defendants’ custody violates Plaintiff’s rights to freedom of speech and freedom of the press as
guaranteed by the First Amendment to the United States Constitution, made applicable to the
states by the Fourteenth Amendment to the United States Constitution.
31.

As a direct and proximate result of Defendants’ conduct in violation of Plaintiff’s

First Amendment rights as set forth above, Plaintiff has suffered, and continues to suffer,
financial and reputational harm including lost business income and lost business good will, as
well as irreparable harm to its right to expression.
32.

Defendants’ actions have been committed with reckless indifference to Plaintiff’s

federally protected rights.
33.

The law establishing the illegality of Defendants’ actions was clearly established

at the time such actions were taken.
Count II:

42 U.S.C. § 1983, for Violations of the Fourteenth Amendment,
Against All Defendants

34.

Plaintiff incorporates all of the above paragraphs by reference.

35.

By failing to give notice of the censorship of publications sent by PLN to DOC

prisoners, and an opportunity to be heard with respect to this censorship, Defendants have
deprived and continue to deprive Plaintiff of liberty and property without due process of law, in
violation of the Fourteenth Amendment to the United States Constitution.
36.

As a direct and proximate result of Defendants’ conduct in violation of Plaintiff’s

due process rights as set forth above, Plaintiff has suffered, and continues to suffer, financial and
reputational harm including lost business income and lost business good will, as well as
irreparable harm to its right to liberty and property interests.

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37.

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Defendants’ actions have been committed with reckless indifference to Plaintiff’s

federally protected rights.
38.

The law establishing the illegality of Defendants’ actions was clearly established

at the time such actions were taken.
WHEREFORE, Plaintiff respectfully requests that this Court
(a)

enter judgment declaring that the acts, conduct, and omissions of Defendants
violate the First Amendment and the Fourteenth Amendment to the United States
Constitution;

(b)

enter an order enjoining Defendants CLARKE, BENDER, and MARSHALL, and
their employees, agents, and any and all persons acting in concert with them, from
further violation of Plaintiff’s First Amendment and Fourteenth Amendment
rights;

(c)

award compensatory, punitive and nominal damages against all Defendants
subject to proof at trial;

(d)

award Plaintiff reasonable attorney’s fees, litigation expenses, and costs pursuant
to 42 U.S.C. § 1988, and any other applicable law; and

(e)

grant any additional relief as may be necessary and proper.

A JURY TRIAL IS HEREBY DEMANDED ON PLAINTIFF’S CLAIMS FOR
MONETARY DAMAGES.

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RESPECTFULLY SUBMITTED,
PRISON LEGAL NEWS,
By its attorneys,
/s/ Howard Friedman
Howard Friedman
BBO #180080
David Milton
BBO #668908
Law Offices of Howard Friedman, P.C.
90 Canal Street, 5th Floor
Boston, MA 02114-2022
Tel: (617) 742-4100
Fax: (617) 742-5858
hfriedman@civil-rights-law.com
dmilton@civil-rights-law.com
Dated: April 23, 2008

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