Case 1:24-cv-01091-JMR-KRS Document 1 Filed 10/25/24 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
Human Rights Defense Center,
Plaintiff,
vs.
MICHELLE LUJAN GRISHAM,
individually and in her capacity as Governor
of the State of New Mexico; ALISHA
TAFOYA LUCERO, individually and in
her capacity as Cabinet Secretary of the
New Mexico Corrections Department;
MELANIE MARTINEZ, individually and
in her capacity as Deputy Secretary of the
New Mexico Correction Department;
GARY MACIEL, individually and in his
capacity as Deputy Secretary of the New
Mexico Correction Department; BRIAN R.
EVANS, individually and in his capacity as
Chief Executive Officer of The GEO Group,
Inc.; WAYNE H. CALABRESE,
individually and in his capacity as President
and Chief Operating Officer of The GEO
Group, Inc.; THE GEO GROUP, INC.
d/b/a LEA COUNTY CORRECTIONAL
FACILITY, a corporation; JOHN AND
JANE DOES 1-20, individually and in their
official capacities; and ENTITIES 1-10,

No.

Defendants.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND
DAMAGES UNDER THE FEDERAL CIVIL RIGHTS ACT, 42 U.S.C. § 1983
INTRODUCTION
1.

Plaintiff Human Rights Defense Center (“HRDC” or “Plaintiff”) brings this

action to enjoin Defendants from censoring publications and correspondence that it mails

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to people incarcerated with the New Mexico Corrections Department (the “NMCD” or
the “Department”). Defendants have adopted and implemented mail policies, practices,
and customs that unconstitutionally prohibit delivery of publications and correspondence
mailed by Plaintiff to persons incarcerated at the Department, and that deny due process
of law to senders, like Plaintiff, whose mail is censored, by failing to provide adequate
notice and an opportunity to challenge each instance of censorship. Defendants’ actions
violate its rights under the First and Fourteenth Amendments to the United States
Constitution. Plaintiff seeks injunctive and declaratory relief, and damages in an amount
to be proven at trial pursuant to 42 U.S.C. § 1983.
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.
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.

Plaintiff’s claims for relief are brought pursuant to 42 U.S.C. § 1983, which

authorizes actions to redress the deprivation, under color of state law, of rights, privileges
and immunities secured by the First and Fourteenth Amendments to the United States
Constitution and laws of the United States.
5.
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This Court has jurisdiction over claims seeking declaratory and injunctive
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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, and punitive damages against the individual defendants in their personal
capacities.
6.

Plaintiff’s claim for attorneys’ fees and costs for its federal claims 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 the individual

Defendants as described herein acted with reckless disregard for Plaintiff’s rights and/or
with the intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel
and unjust hardship in conscious disregard of Plaintiff’s rights with the intention of
causing Plaintiff injury and depriving it of its constitutional rights. As a result of the
foregoing, Plaintiff seeks compensatory and punitive damages against the individual
Defendants.
PARTIES
8.

Plaintiff HUMAN RIGHTS DEFENSE CENTER is a not-for-profit

charitable organization recognized under § 501(c)(3) of the Internal Revenue Code,
incorporated in the state of Washington and with principal offices in Boynton Beach,
Florida. For over thirty-four years, HRDC has focused its mission on public education,
advocacy and outreach to incarcerated persons and the public about the economic and
social costs of prisons to society, and to help incarcerated persons educate themselves
about their constitutional and human rights and to learn about accessing education while
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incarcerated. HRDC accomplishes its mission through advocacy, litigation, and
publication and/or distribution of books, magazines and other information concerning
prisons and the rights of incarcerated persons. Prison Legal News is a wholly-owned
project and publishing arm of HRDC. Through its publishing project, HRDC engages in
core protected speech and expressive conduct on matters of public concern, such as the
operation of correctional facilities, prison and jail conditions, and the health, safety and
constitutional and human rights of incarcerated persons. HRDC publishes and distributes
two monthly magazines covering corrections and criminal legal news and analysis, and
publishes and distributes books about the criminal legal system and legal issues affecting
incarcerated persons, which HRDC distributes by mail to incarcerated persons, lawyers,
courts, libraries, and the public throughout the United States.
9.

Defendant MICHELLE LUJAN GRISHAM is the Governor of STATE OF

NEW MEXICO and the Chief Executive of the state government. As Governor she is
obligated under state law to supervise the official conduct of all executive branch officers
and to see that all offices are filled and their duties lawfully performed. Defendant
LUJAN GRISHAM has the authority to appoint and remove the subordinate defendants
named herein. Governor LUJAN GRISHAM retains the ultimate state authority over the
management and operations of NMCD facilities. She is sued in her individual and
official capacities.
10.

Nonparty The New Mexico Corrections Department (the “NMCD” or the

“Department”) is a cabinet-level agency of the State of New Mexico organized and
existing under the laws of the State of New Mexico. NMCD has 10 adult correctional
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facilities. Eight of these facilities are directly operated by NMCD including: Central
New Mexico Correctional Facility (“CNMCF”), Guadalupe County Correctional Facility
(“GCCF”), Northeast New Mexico Correctional Facility (“NENMCF”), Penitentiary of
New Mexico (“PNM”), Roswell Correctional Center (“RCC”), Springer Correctional
Center (“SCC”), Southern New Mexico Correctional Facility (“SNMCF”), and Western
New Mexico Correctional Facility (“WNMCF”). The remaining two facilities are
operated by separate private companies: Lea County Correctional Facility (“LCCF”),
which is operated by Defendant The GEO Group, Inc. (“GEO”), and the Otero County
Prison Facility (“OCPF”), which is operated by non-party Management & Training
Corporation.
11.

Defendant ALISHA TAFOYA LUCERO is the Cabinet Secretary for

NMCD and has held that position since 2019. Defendant TAFOYA LUCERO is
employed by and is an agent of STATE OF NEW MEXICO and NMCD. She is
responsible for overseeing the management and operations of NMCD, and for the hiring,
screening, training, supervision, discipline, counseling, and control of the personnel at
NMCD who interpret and apply its incoming mail policies. As Cabinet Secretary,
Defendant TAFOYA LUCERO is a final policymaker for NMCD with respect to the
operation of its facilities, including for policies, practices, and customs governing
incoming mail for incarcerated persons. She is sued in her individual and official
capacities.
12.

Defendant GARY MACIEL is the Deputy Secretary for NMCD and has

held that position since 2023, prior to which he served as Director and previously Deputy
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Director of the Adult Prisons Division (“APD”). Defendant MACIEL is employed by
and is an agent of STATE OF NEW MEXICO and NMCD. As Deputy Secretary, and
previously as Director of APD and Deputy Director of APD, Defendant MACIEL is and
was a policymaker for STATE OF NEW MEXICO and NMCD with respect to the
operation of the prison facilities, including for policies, practices, and customs governing
incoming mail for incarcerated persons. He is sued in his individual and official
capacities.
13.

Defendant MELANIE MARTINEZ is the Deputy Secretary for NMCD and

has held that position since 2023, prior to which she served as Director of the Probation
and Parole Division since 2019. Defendant MARTINEZ is employed by and is an agent
of STATE OF NEW MEXICO and NMCD. As Deputy Secretary, Defendant
MARTINEZ is a policymaker for STATE OF NEW MEXICO and NMCD with respect
to the operation of the prison facilities, including for policies, practices, and customs
governing incoming mail for incarcerated persons. She is sued in her individual and
official capacities.
14.

Defendant BRIAN R. EVANS is the Chief Executive Officer of Defendant

GEO and has held that position since January 1, 2024, prior to which he served in senior
management at the company. Defendant EVANS is employed by and is an agent of
Defendant GEO. As Chief Executive Officer, Defendant EVANS is a policymaker for
Defendant GEO with respect to the operation of the LCCF, including for policies,
practices, and customs governing incoming mail for incarcerated persons. He is sued in
his individual and official capacities.
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15.

Defendant WAYNE H. CALABRESE is the President and Chief Operating

Officer of Defendant GEO and has held that position since January 1, 2024, prior to
which he served in senior management at the company. Defendant CALABRESE is
employed by and is an agent of Defendant GEO. As President and Chief Operating
Officer, Defendant CALABRESE is a policymaker for Defendant GEO with respect to
the operation of the LCCF, including for policies, practices, and customs governing
incoming mail for incarcerated persons. He is sued in his individual and official
capacities.
16.

Defendant GEO is, and at all relevant times herein was, a private company

responsible for operating the LCCF, which is one of Defendant NMCD’s ten facilities.
Defendant GEO is an agent of NMCD and responsible for the actions and/or inactions
and the policies, procedures, customs, and practices of the LCCF and its employees and
agents. GEO is responsible for adopting and implementing mail policies governing
incoming mail for incarcerated persons at the LCCF.
17.

The true names and identities of Defendants DOES 1 through 20 are

presently unknown to HRDC. Each of Defendants DOES 1 through 20 are or were
employed by and are or were agents of the State of New Mexico, NMCD, and/or
Defendant GEO, were personally involved in the adoption and/or implementation of the
policies, practices, and customs governing incoming mail for incarcerated persons at
NMCD, and/or are or were responsible for the hiring, screening, training, retention,
supervision, discipline, counseling, and/or control of the personnel who interpret and
implement these incoming mail policies, practices, and customs. They are sued in their
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individual and official capacities. Plaintiff will seek to amend this Complaint when the
true names and identities of Defendants DOES 1 through 20 have been ascertained.
18.

The true names of ENTITIES 1-10 are presently unknown to HRDC.

ENTITIES 1-10 are, upon information and belief, entities which operate in and have
substantial ties to the named Defendants. Said Defendants have, upon information and
belief, helped to cause the incidents alleged herein under the authority and color of state
law. Plaintiff will seek to amend this Complaint when the true names and identities of
ENTITIES 1-10 have been ascertained.
19.

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 the State of New
Mexico, the NMCD, Defendant GEO, and/or ENTITIES 1-10.
FACTUAL ALLEGATIONS
20.

For over thirty-four years, the focus of HRDC’s mission has been public

education, advocacy and outreach on behalf of, and for the purpose of assisting,
incarcerated persons who seek legal redress for infringements of their constitutionally
guaranteed and other basic human rights. HRDC’s mission, if realized, has a salutary
effect on public safety.
21.

To accomplish its mission, HRDC publishes and distributes books,

magazines, and other materials containing news and analysis about prisons, jails and
other detention facilities, the rights of incarcerated persons, court rulings, management of
prison facilities, prison and jail conditions, and other matters pertaining to the rights
and/or interests of incarcerated persons. HRDC’s publications contain political speech
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and social commentary, which are core First Amendment rights and are entitled to the
highest protection afforded by the United States Constitution.
22.

Sending publications through the mail to incarcerated persons is essential to

accomplishing the mission of HRDC. The primary aim of HRDC is to communicate with
incarcerated persons about developments in the law and protection of one’s health and
personal safety while in prison or jail. Reading materials enable incarcerated persons to
engage in productive activity rather than sitting idle, thus helping to avoid conflicts and
incidents of violence in correctional facilities and encouraging lawful methods of dispute
resolution. In addition, reading allows incarcerated persons to keep their minds sharp,
helping them prepare to become productive citizens when released back into society.
23.

HRDC publishes and distributes an award-winning monthly magazine titled

Prison Legal News: Dedicated to Protecting Human Rights (“Prison Legal News”),
which contains news and analysis about correctional facilities, the rights of incarcerated
persons, court opinions, prison and jail conditions, excessive force, and religious
freedom. Prison Legal News is published on newsprint bound by two small staples, and
is 72 pages long.
24.

HRDC also publishes and distributes a second monthly magazine titled

Criminal Legal News: Dedicated to Protecting Human Rights (“Criminal Legal News”),
which contains news and analysis about individual rights, court rulings, and other
criminal legal-related issues. Criminal Legal News is also published on newsprint bound
by two small staples, and was 48 pages long, but has more recently expanded to 56 pages
long.
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25.

HRDC also publishes and/or distributes several different soft-cover books

on criminal justice, health, and legal issues that are of interest to incarcerated persons and
others. HRDC publishes and distributes the book The PLRA Handbook, which is a
detailed guide for litigants practicing under the Prison Litigation Reform Act. HRDC
does not publish, but is the sole national distributor of the book Protecting Your Health
and Safety (“PYHS”), which describes the rights, protections and legal remedies available
to persons concerning their health and safety while they are incarcerated.
26.

HRDC also annually publishes and distributes Annual Report booklets

regarding HRDC’s activities and funding over a year-long period. The Annual Report is
also published on newsprint bound by two small staples, and vary in length recently on
the order of 20-30 pages.
27.

In addition to its publications, HRDC also communicates with incarcerated

persons through the United States Postal Service by sending and receiving letters with
pertinent information about HRDC’s publications and related topics and sending
subscription renewal letters.
28.

Since 1990, HRDC has sent its publications and books by mail to

incarcerated persons and law librarians in more than 3,000 correctional facilities in all
fifty states, including at death row housing units and “supermax” prisons, including the
federal Administrative Maximum Facility at Florence, Colorado, which is known as the
most secure prison in the United States. The publications and books that HRDC
distributes have been mailed to hundreds of persons incarcerated in New Mexico
including in the NMCD facilities operated by the state and by the private companies
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Management & Training Corporation and The GEO Group, Inc., as well as in the Rio
Arriba County Jail, Metropolitan Detention Center in Bernalillo County, San Miguel
County Detention Center, McKinley County Jail, Valencia County Detention Center, San
Juan Adult Detention Center, Dona Ana County Detention Center, FCI La Tuna operated
by the US Bureau of Prisons, and the Torrance County Detention Facility and Cibola
County Detention Center housing ICE detainees.
29.

Some of NMCD’s written policies, procedures, and practices are available

on its public website at https://www.cd.nm.gov/policies/ (last visited October 24, 2024).
Defendants’ publicly available current policies and procedures regarding incoming mail
for persons incarcerated at Defendants’ prisons, Policy CD-151200 Correspondence
Regulations (the “Mail Policy”), is hyperlinked under the “Inmate Rights” section of the
website at https://www.cd.nm.gov/wp-content/uploads/2023/12/CD-151200-1.pdf (last
visited October 24, 2024). According to the Mail Policy it was last revised on
September 27, 2023. The prior versions of the Mail Policy in effect during the relevant
timeframe (the “April 8, 2022 Mail Policy” and the “February 23, 2015 Mail Policy”)
were posted on Defendant NMCD’s website and are archived and available online. The
April 8, 2022 Mail Policy is available at
http://web.archive.org/web/20230530224748/https://www.cd.nm.gov/wpcontent/uploads/2022/09/CD-151200.pdf (last visited October 24, 2024). The
February 23, 2015 Mail Policy is available at
http://web.archive.org/web/20211224071430/https://cd.nm.gov/wpcontent/uploads/2021/04/CD-151200.pdf (last visited October 24, 2024).
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30.

Not all of NMDC’s written policies, procedures, or practices are available

online. HRDC obtained a memorandum dated December 29, 2021, addressed to
“Offender Families” from NMCD, with the subject line “Re: Inmate Mail Changes.” The
memorandum is not signed by any individual but is on NMCD letterhead bearing the
names of Defendant LUJAN GRISHAM, Governor, and Defendant TAFOYA LUCERO,
Cabinet Secretary. The memorandum announced that beginning February 1, 2022,
“personal mail will no longer be accepted at state-run prison facilities” and it lays out a
process for sending personal mail to a third party for processing. The memorandum
notes that LCCF and OCPF, the two privately operated facilities, “will continue to accept
personal mail.” The memorandum does not define “personal mail” or announce any
changes about how publications mailed by a publisher or vendor will be treated.
Handling of publications mailed by a publisher or vendor is a topic covered in the Mail
Policy. Both the current Mail Policy and the prior April 8, 2022 Mail Policy postdate the
memorandum.
31.

Defendants’ current Mail Policy attaches blank copies of Defendants’ Mail

Rejection form (CD-151201.1) and the Publication Review Panel Determination (CD151201.4) and also provides the following policies and procedures in pertinent part:
C. Publications: [5-ACI-7D-04]
1. Inmates will be allowed to receive publications when received directly
from the publisher or vendor, pursuant to specified criteria described in
rejection of mail procedures below.
2. Inmate housed in Level I, II, and III facilities, may access newspaper
publications at the facility library during normal business hours.

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3. Junk mail, pamphlets, leaflets, brochures, etc., will be judged by the same
standards as other correspondence; however, any incoming mail not
addressed to an inmate may be discarded at the discretion of prison officials.
…
E. Inspection of Mail:
1. All mail, both incoming and outgoing letters, publications, and packages,
excluding legal mail and privileged correspondence, may be opened, and will
be routinely inspected for contraband, cash, checks, and money orders. Mail
is read, censored, or rejected based on legitimate institutional interest of order
and security. [5-ACI-7D-05] [5-ACI-7D-07]
…
I. Rejection of Mail, Enclosures and Publications:
1. Mail, enclosures, packages and publications will be rejected if they are
detrimental to internal security of the institution or other legitimate
penological interests. Rejection examples below may not be all inclusive but
are intended as a reference:
a. Item contains contraband.
b. Item facilitates criminal activity.
c. Item contains single photo of inmate.
d. Item depicts, describes, or encourages activities which may lead to the use
of physical violence or group disruption.
e. Item instructs how to build weapons, ammunition, bombs, or incendiary
devices.
f. Item depicts or describes procedures for the brewing of alcoholic beverages
or the manufacture of drugs.
g. Item depicts or describes methods or procedures for smuggling prison
contraband.
h. Item depicts or describes techniques or methods for rioting or information
instructive in hostage or riot negotiation techniques.
i. Item depicts, encourages, or describes methods of escape from secure
facilities.
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j. Item contains blueprints, maps, drawings, or other descriptions of in-state
or out-of-state secure facilities.
k. Item contains detailed or topographical maps of other states or the state of
New Mexico, which could aid an incarcerated individual in an escape.
l. Item contains a pictorial depiction of nudity or a pictorial depiction of
sexual activity, unless the item, taken as a whole, is literary, artistic,
educational, or scientific in nature.
m. Item contains child pornography, promotes sexual exploitation of
children, depicts or portrays models of any age as children in sexual
provocative poses or engaged in sexual activity, or depicts full or partial
nudity of children in a non-pornographic context but, which could promote
or encourage prurient interest in the sexual performance of child.
n. Item contains written sexually explicit material which, by its nature or
content, poses a threat to the security, good order, or discipline of the
correctional facility.
o. Item depicts or describes hand signs, insignias, graffiti, or any other
identifiers depicting or pertaining to a gang, or text that describes or depicts
gang or other unauthorized group activity in such a way that it would promote
or instruct in the formation of such groups inside a correctional facility.
p. Item contains information which appears to be written in code or other
attempts to circumvent correspondence regulations and is deceptive.
q. Item violates facility rules and regulations.
2. Hardbound publications are prohibited.
3. Items will not be rejected solely because content is religious,
philosophical, political, social, sexual, unpopular or repugnant.
…
7. When mail items, enclosures, or packages are rejected the inmate and the
sender will be notified in writing on the Mail Rejection form (CD-151201.1)
with the reason for the rejection indicated. [5-ACI-7D-05]
8. Rejected outgoing mail shall be withheld, photocopied and filed for future
reference, prior to return or destruction.
9. Rejection of publications will require review by the publication review
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panel, consisting of three staff members designated by the Deputy Director
of Adult Prisons. The panel will determine whether the rejection is necessary
and whether the rejected material poses a security risk detrimental to
penological interest.
10. Rejection of publications will be made on an individual basis.
Subscription based publications will not be placed on a permanent excluded
list and shall be reviewed as to each individual subscription issue and rejected
on each individual issue.
11. When publications are rejected, the inmate will be notified in writing on
the Publication Review Panel Determination form (CD-151201.4).
12. Rejections of any mail, enclosure or publication that an inmate claims to
be religious should be reviewed by NMCD legal counsel.
13. Any inmate whose mail, enclosure, package or publication is rejected
may contest the rejection through the inmate grievance procedure.
32.

Defendants’ Mail Policy is unconstitutional on its face and as applied, and

is unduly broad and vague. This is especially true because the books and magazines
published and/or distributed by HRDC cover topics of great public concern and contain
core protected speech, including political speech and social commentary, and educational
information relating to the rights of incarcerated persons, pertinent legal cases, and
incarcerated persons’ health and safety, and are thus entitled to the highest protection
afforded by the First Amendment to the United States Constitution.
33.

The grounds whereby Defendants may reject mailed publications listed in

Defendants’ Mail Policy are overly broad and/or too vague for a sender to understand
what is prohibited and what is permissible.
34.

Defendants’ Mail Policy also does not clearly provide any requirement for

notice of censorship to the senders of publications. Although the Mail Policy requires
such notice for “mail items, enclosures, or packages” provided via the Mail Rejection
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form (CD-151201.1), the process for publications requires notice only to the intended
recipient and not the sender as follows: “When publications are rejected, the inmate will
be notified in writing on the Publication Review Panel Determination form (CD151201.4).”
35.

Additionally, while Defendants’ Mail Policy provides “Any inmate whose

mail, enclosure, package or publication is rejected may contest the rejection through the
inmate grievance procedure” it does not provide for any appeals process by which a
sender such as HRDC may challenge a decision by Defendants to reject publications or
other mailings for delivery to incarcerated persons at Defendants’ prisons.
36.

The prior versions of Defendants’ Mail Policy—the April 8, 2022 Mail

Policy and the February 23, 2015 Mail Policy—reflect various changes to the relevant
policies and procedures over time. Neither of these policies is any clearer or more
protective of HRDC’s constitutional rights to free speech and due process at issue here.
37.

Defendants’ non-public written policy or procedure in the December 29,

2021 memorandum is likewise unconstitutional to the extent it was or is being applied to
publishers distributors such as HRDC. That policy provides that “[a]t all private and
state-run facilities moving forward, mail will no longer be accepted that is comprised of
cardboard or other rigid parchment incapable of running through the scanner. For
example, USPS postal rigid express envelopes that lay flat but do not bend without
creasing would not be accepted and magazines will not be accepted.”
38.

From at least March 2022 to the present, Defendants have been censoring

books, magazines and other correspondence mailed by HRDC to incarcerated persons
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held in custody in Defendants’ prisons by refusing to deliver the publications and
correspondence to the intended recipients, and by returning the items to HRDC’s office
via the Return to Sender service of the United States Postal Service, at Plaintiff’s
expense. Since at least February 2022, subscribers have been writing to HRDC to
complain of censorship, although HRDC did not begin to receive returned items until
March 2022.
39.

HRDC has identified at least one hundred fifty-two (152) instances in the

period from February 2022 through September 2024 where publications and
correspondence that HRDC mailed to incarcerated persons, individually addressed and
separately mailed with postage fully paid, were not delivered to intended recipients who
were still incarcerated at Defendants’ prisons when the items arrived in the mail, and
were instead returned to sender. This includes at least 139 items sent to individuals at
four of the eight NMCD facilities operated by the state—namely SNMCF, PNM,
NENMCF, and CNMCF—plus at least 13 additional items sent to individuals at the
LCCF operated by Defendant GEO. This includes at least seventy-three (73) issues of
Prison Legal News, forty-eight (48) issues of Criminal Legal News, twenty (20) copies of
the book PYHS, nine (9) copies of HRDC’s Annual Reports, one (1) copy of the book The
PLRA Handbook, and one (1) renewal letter sent to a subscriber. Each of these items was
not delivered to the intended recipient at Defendants’ prisons, and was instead returned to
HRDC’s office by Defendants using the Return to Sender service of the United States
Postal Service. For each of these instances, HRDC staff confirmed that the intended
recipient was still incarcerated with the Department at the time that the mailing was
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returned to HRDC via the Return to Sender service. In the each of these cases HRDC
staff confirmed via NMCD’s public “Offender Search” service that the intended recipient
was still in custody and housed at the same facility to which the mail had been sent.
40.

HRDC is informed and believes that numerous additional publications and

correspondence mailed to persons incarcerated at the NMCD have been censored by
Defendants and are being censored on an ongoing basis. HRDC has mailed over 1,000
individual copies of its monthly Prison Legal News and Criminal Legal News magazines
to NMCD subscribers during the relevant timeframe all of which presumably arrived in
the mail as addressed even though HRDC has only received a fraction of those magazines
returned to sender. At the same time, HRDC has received dozens of letters from
incarcerated persons complaining of censorship, some of whom enclosed rejection
notices asserting that newspapers and magazines are prohibited.
41.

The publications and correspondence that Defendants refused to deliver

were returned to Plaintiff with various vague markings including ink stamps and/or
handwritten markings crossing out portions of the mailing address, either no other
markings, or with various combinations of crude handwritten notations such as “RTS,”
“REF,” “Refused,” and/or “Denied,” with one case noting “NOT AUTHORIZED,” one
case noting “Newspapers/Magazines Prohibited,” one case noting “Magazines Not
Allowed Nor Newspapers” one case incorrectly indicating “Postage Due,” and in one
other case affixing a label stating only “REFUSED VIOLATES DOC MAIL RULE.”
42.

Although Defendants’ Mail Policy provides generally that “Inmates will

have access to publications” Defendants nonetheless refused to deliver twenty-one (21)
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soft-cover books mailed by HRDC to incarcerated persons at NMCD facilities—
including one (1) copy of the PLRA Handbook marked as “NOT AUTHORIZED.” The
remaining twenty (20) books were copies of PYHS. Of these, four (4) were returned with
no markings at all other than crossing out the mailing address, another eight (8) were
returned with the markings “Denied Refused” handwritten in ink on the outside of the
mailing package, another seven (7) were returned with the handwritten abbreviation
“RTS” on the outside of the mailing package including one instance with additional
markings on the edges of the package “x 1150” and “1150” and another instance with the
additional handwritten markings “Key” and an arrow pointing toward the marking
“RTS.” None of these returned books included any information as to why Defendants
refused to deliver them to the intended recipients. The remaining one (1) book was
returned with the handwritten marking “Postage Due” despite being properly addressed
and metered and apparently delivered to the institution, and included no other
information as to why Defendants refused to deliver it to the intended recipient.
43.

Defendants also refused to deliver at least one hundred and twenty-one

(121) issues of HRDC’s monthly magazines and nine (9) Annual Report booklets to
incarcerated persons. One (1) of these had no markings other than handwritten markings
crossing out the mailing address. One (1) was marked “Newspapers/Magazines
Prohibited,” one (1) was marked “Magazines Not Allowed Nor Newspapers.” The vast
majority included one or more of the handwritten notations “RTS” and “REF” and/or one
of two ink stamps. The first ink stamp consisted of the phrase “RETURN TO SENDER”
next to an image of a hand pointing to the left, but without any other information
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provided. The other ink stamp consisted of the phrase “RETURN TO SENDER” inside
an image of a hand pointing to the left with the marking “INIT ___” to the right of the
hand, followed by five short statements with checkboxes directly underneath which read
as follows with the “No Longer Here” checkbox marked by hand:
□ NMCD #
□ No Longer Here
□ Paroled
□ Discharged
□ Unauthorized Content
In nine (9) of the instances HRDC received United States Postal Service return cards with
both scans of handwritten notations by Defendants and typed notations that appear to
have been generated by the Postal Service rather than Defendants. The return card
notations included “Unable to Forward,” Not Deliverable as Addressed” or “Refused.”
Defendants provided no other information as to the basis for their decision to refuse to
deliver the monthly magazines and Annual Report booklets to their intended recipients.
44.

Defendants refused to deliver one (1) renewal letter mailed by HRDC to a

person incarcerated at NMCD. The letter was returned with a label on the front of the
mailing envelope stating “REFUSED VIOLATES DOC MAIL RULE” and with a stamp
on the back of the mailing envelope with six check-boxes and accompanying phrases.
One of the checkboxes was marked next to the phrase “LEGAL/PRIVILEGED.” The
return did not include any information as to which rule was allegedly violated and
contained no other information as to why Defendants refused to deliver the letter to the
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intended recipient.
45.

On December 15, 2022, HRDC received a letter on NMCD letterhead

signed by staff at the Penitentiary of New Mexico Mailroom stating, in totality: “To
whom it may concern, Inmates at the Penitentiary of New Mexico are not allowed to have
any Publications.” This letter was not tied to any specific censorship decisions and
provided no opportunity to appeal those decisions.
46.

Defendants did not provide HRDC with notice or opportunity to appeal the

censorship decisions in any of the instances where Defendants refused to deliver its
publications and correspondence mailed to persons incarcerated at the Department’s
facilities. HRDC has not been informed and is not aware of any review by a “publication
review panel, consisting of three staff members designated by the Deputy Director of
Adult Prisons” for the censored items, as is required by the Mail Policy “as to each
individual subscription issue” that is censored. Defendants did not provide HRDC with
notice of the reason any mailing was rejected beyond vague markings on the outside of
items returned via the United States Postal Service’s Return to Sender service. Nowhere
on the returned items of mail was notice provided of a right to challenge the censorship
decision, or any information on whether or how HRDC could appeal Defendants’
rejection of the items of mail. In each instance of censorship, Defendants also did not
provide HRDC any opportunity to appeal the decision to refuse to deliver the publication
or correspondence to the intended recipient. Nor, as discussed above, does Defendants’
current Mail Policy provide for a clear requirement to notify senders of censored
publications or provide for any appeals process by which a sender may challenge a
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censorship decision. Even after HRDC contacted Defendants NMCD and TAFOYA
LUCERO regarding the censorship and violation of its right to due process, Defendants
did not provide any notice of the reason(s) for the rejections of HRDC’s mailings or an
opportunity to appeal the censorship decisions.
47.

Defendants’ conduct prohibiting or not delivering HRDC’s mailed

publications and correspondence to persons incarcerated at NMCD violates the First
Amendment by censoring HRDC’s freedom of speech and expression, and has a chilling
effect on future speech and expression directed at the persons incarcerated at NMCD.
48.

HRDC will continue to mail books, magazines, and other correspondence

to subscribers, customers, and other persons incarcerated at NMCD.
49.

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

rights of HRDC will not have any significant impact on NMCD’s staff, other incarcerated
persons at the Department, Defendants’ allocation of resources, or security at the
Department’s facilities.
50.

Due to Defendants’ actions as described above, HRDC has suffered

damages, and will continue to suffer damages, including, but not limited to: the
suppression of HRDC’s speech and press; the impediment of HRDC’s ability to
disseminate its political message; frustration of HRDC’s non-profit organizational
mission; diversion of resources; the loss of potential subscribers and customers; an
inability to recruit new subscribers and supporters; the loss of reputation; and the cost of
printing, handling, mailing, and staff time, among other damages.
51.
[4544179.8]

The individual Defendants’ actions and inactions were and are undertaken
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with reckless disregard for Plaintiff’s rights and/or motivated by ill motive and intent, and
were and are all committed under color of law with deliberate indifference to HRDC’s
rights.
52.

Defendants are responsible for or personally participated in creating and

implementing these unconstitutional policies, practices, and customs, or for ratifying or
adopting them. Further, the individual Defendants are responsible for training and/or
supervising the staff persons whose conduct has injured and continues to injure HRDC.
53.

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

continue to violate HRDC’s rights, and were and are the moving force behind the injuries
HRDC suffered as a direct result of the constitutional violations. As such, HRDC has no
adequate remedy at law.
54.

Plaintiff is entitled to injunctive relief prohibiting Defendants from refusing

to deliver or refusing to allow delivery of publications and correspondence mailed by
HRDC to incarcerated persons at NMCD, and prohibiting Defendants from censoring
mail without due process of law.
FIRST CLAIM FOR RELIEF
(Violations of the First Amendment (Free Speech)—42 U.S.C. § 1983)
55.

HRDC re-alleges and incorporates the allegations of paragraphs 1 through

54 of the Complaint as if fully set forth herein.
56.

Defendants’ acts described above constitute violations of HRDC’s right to

communicate with persons incarcerated at NMCD under the First Amendment to the
United States Constitution.
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57.

Defendants’ conduct was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the
rights of others.
58.

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

and proximately caused by Defendants’ policies, practices, and customs, which were and
are the moving force of the violations.
59.

Defendants’ acts described above have caused damages to HRDC, and if

not enjoined, will continue to cause damage to HRDC.
60.

HRDC seeks declaratory and injunctive relief, and nominal and

compensatory damages against all Defendants. HRDC also seeks punitive damages
solely against the individual Defendants in their individual capacities.
SECOND CLAIM FOR RELIEF
(Violation of the Fourteenth Amendment (Due Process)—42 U.S.C. § 1983)
61.

HRDC re-alleges and incorporates the allegations of paragraphs 1 through

60 of the Complaint as if fully set forth herein.
62.

HRDC has a constitutionally-protected liberty interest in communicating

with persons incarcerated at NMCD by sending publications and correspondence to them
via the United States Postal Service, a right clearly established under existing case law.
63.

HRDC has the 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 the publications and correspondence mailed by HRDC from reaching
the intended recipients incarcerated at NMCD.
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64.

Defendants have failed to give HRDC sufficient notice of the censorship of

its publications and correspondence, and an opportunity to be heard with respect to that
censorship. In doing so, Defendants have deprived and continue to deprive HRDC of
liberty and property without due process of law, in violation of the Fourteenth
Amendment to the United States Constitution.
65.

Defendants’ conduct was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the
rights of others.
66.

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

and proximately caused by Defendants’ policies, practices, and customs, which were and
are the moving force of the violations.
67.

Defendants’ acts described above have caused damages to HRDC, and if

not enjoined, will continue to cause damage to HRDC.
68.

HRDC seeks declaratory and injunctive relief, and nominal and

compensatory damages against all Defendants. HRDC also seeks punitive damages
solely against the individual Defendants in their individual capacities.
REQUEST FOR RELIEF
WHEREFORE, the Plaintiff respectfully requests relief as follows:
1.

A declaration that Defendants’ policies, practices, and customs violate the

First and Fourteenth Amendments to the United States Constitution;
2.

A preliminary and permanent injunction preventing Defendants and their

employees, agents, and any and all persons acting in concert with them from further
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violation of HRDC’s civil rights under the First and Fourteenth Amendments to the
United States Constitution; and providing other equitable relief;
3.

Nominal damages for each violation of HRDC’s rights by the Defendants;

4.

Compensatory damages in an amount to be proved at trial;

5.

Punitive damages against the individual Defendants in an amount to be

proved at trial;
6.

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

under other applicable law; and
7.

Any other relief that this Court deems just and equitable.

October 25, 2024

ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Marc J. Shinn-Krantz
Ernest Galvan, Cal. Bar No. 196065
Marc J. Shinn-Krantz, Cal. Bar No. 312968
Attorneys for HUMAN RIGHTS
DEFENSE CENTER
101 Mission Street, Sixth Floor
San Francisco, California 94105-1738
Telephone: (415) 433-6830
Facsimile: (415) 433-7104
* Pro Hac Vice Application to be filed

October 25, 2024

HUMAN RIGHTS DEFENSE CENTER
By:/s/ Jonathan P. Picard
Jonathan P. Picard, Fla. Bar No. 105477
P.O. Box 1151
Lake Worth, Florida 33460
Attorneys for HUMAN RIGHTS DEFENSE
CENTER

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Telephone: (561) 360-2523
Facsimile: (561) 828-8166
* Pro Hac Vice Application to be filed
October 25, 2024

IVES & FLORES P.A.
By:/s/ Adam C. Flores
Laura Schauer Ives, SB# 12463
Adam C. Flores, SB# 146686
Attorneys for HUMAN RIGHTS DEFENSE
CENTER
925 Luna Circle NW
Albuquerque, New Mexico 87102
Telephone: (505) 364-3858
Facsimile: (505) 364-3050

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