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Miniken v. Walter, Complaint, Bulk Mail Ban on PLN Unconstitutional, 1996

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FILED IN THE
,.S. DISTRICT COURT
EASl£RN DISTRICT OF WASHINGTON

I

I

JUL 2 4 1996

.1

1
2

3

DONALD W. MINIKEN #975666
Airway Heights Corrections Center
P.O. Box 2019,
K-A-51-L
Airway Heights, WA 99001-2019
(509) 244-6700

JAMES R. LARSEN. CLERK

_ _ _ _ _ _ _ DEPUTY

4

5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

6

7

DONALD W.

8

MINIK:::intiff~ Sj- 96 - 04 07' J L

9 vs ,
10 KAY WALTER and DAVID BUSS,
11
12

Defendants.

)
)
)
)
)
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CIVIL RIGHTS COMPLAINT

-------------)

13

INTRODUCTION

14

This is a civil rights complaint brought by a pro se

15

prisoner litigant pursuant to 42 U.S.C. § 1983.

16

alleges that defendants have rejected and destroyed copies of the

17

Prison Legal News when they arrived at the Airway Heights

Plaintiff

18 Corrections Center, without notice of or reasons given for

19

rejecting the magazines.

20

Plaintiff further alleges that the practical effect of

21 defendants practice is to unilaterally exempt from First
22 Amendment protection all mailings sent by bUlk rate, regardless

23 of the mailing's content or effect on the security of the

24

prison.

Defendants decision to censor or reject copies of the

25 Prison Legal News, without affording plaintiff ~ny measure of

26

process constitutes irreparable harm.

Plaintiff seeks

27 declaratory, injunctive and monetary relief.

28 crv

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RIT COM

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for handling and processing prisoners mail.

These defendants

2 acted under color of law.
3
4

ADMINISTRATIVE REMEDIES
8.

Plaintiff filed two institutional grievances, which

5 resulted in no corrective action.

Plaintiff has no adequate

6 remedy at law other than the relief requested herein.
7

8

FACTUAL ALLEGATIONS
9.

On or about December 20, 1995, plaintiff subscribed to

9 the Prison Legal News, a monthly magazine of news and analysis
10 pertaining to legal and political developments affecting those
11 involved in the criminal justice system.

12

10.

Because he had not received an issue of the Prison

13 Legal News by April, 1996, plaintiff wrote to that publication

14

inquiring as to why he had not received a single issue.

15

Plaintiff was informed that an issue of the magazine had been

16

sent to him each month since January, 1996.

17

11.

On April 12, 1996, plaintiff filed two grievances in

18 connection with the failure of the Airway Heights Corrections

19

Center mailroom's failure to deliver his mail.

The first

20 pertained to AHCC FI 450.100, which states: "Bulk mail will not
21 be delivered."

Exhibit 1.

The second addressed the rejection

22 and destruction of the Prison Legal News without notice to either
23 himself or the pUblisher.

24

12.

Exhibit 2.

On April 26, 1996, plaintiff received responses to both

25 grievances.

In response to the first complaint the grievance

26 coordinator stated: "There is no postal requirement to deliver
27 the mail further than the facility."
28 CIV RIT COM

-3-

Exhibit 1.

In response to

1

the second complaint the grievance coordinator stated: "Bulk mail

2

is NOT rejected mail.

3

to sender if possible or disposed of properly."

4

13.

7

On May 23, 1996, plaintiff received a response

to his appeals which are identical.
14.

Exhibit 2.

On April 27, 1996, plaintiff appealed both responses.

5 Exhibits 3 & 4.

6

It is considered 'junk mail' and returned

On

Ju~y

Exhibits 3 & 4.

9, 1996, plaintiff received the Affidavit of

8 Rollin Wright (with attachments), the publisher and registered
9 business agent of the Prison Legal News.

In his Affidavit,

10 Mr. Wright explains why the magazine is mailed via third class
11 non-profit mail, why a subscriber cannot make arrangements to
12 receive the Prison Legal News via first or second class mail, and

13 that he has never been sent any type of notice that plaintiff's

14

issues to the Prison Legal News were being censored at the Airway

15 Heights Corrections Center, nor given an opportunity to appeal
16 that censorship.

17
18

Exhibit 5.
RELIEF REQUESTED

15.

Plaintiff requests declaratory judgment that defendants

19 rejection of any mail addressed to plaintiff on the sole ground

20

that the mail is sent bUlk rate is unconstitutional in that it

21 violates the First Amendment of the United States Constitution.

22

16.

Plaintiff re~uests declaratory judgment that defendants

23 rejection of any mail addressed to plaintiff without affording

24

plaintiff notice of rejection and an opportunity to appeal the

25

rejection is unconstitutional in that it violates the Fourteenth

26 Amendment of the United States Constitution.
27

17.

28

CIV RIT COM

Plaintiff requests injunctive relief from this court
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enjoining defendants, and their agents, from rejecting mail

2

addressed to plaintiff on the sole ground that the mail is sent

3

bUlk rate.

4

18.

Plaintiff

re~uests

injunctive relief from this court

5

enjoining defendants, and their agents, from rejecting mail

6

addressed to plaintiff without affording him notice of rejection

7

and an opportunity to appeal the rejection.

8
9

10
11
12
13

19.

Plaintiff requests this court award plaintiff $250.00

for each rejected and destroyed magazine.
20.

Plaintiff requests an award of costs and attorney fees

pursuant to 42 U.S.C. § 1988.
21.

Plaintiff requests that the court grant any other such

relief as the court may deem appropriate and just.

14
15

SIGNED UNDER PENALTY OF PERJURY this 18th day of July, 1996.

16
Donald W. Miniken
Airway Heights C rections Center
P.O. Box 2019. K-A-51-L
Airway Heights, WA 99001-2019

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.NITIAL GRIEVANCE

DEPARTMENT OF CaRRE" ••.JNS
DIVISION OF OFFENDER PROGRAMS
RESIDENTIAL FACIUTIES
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MIDDLE

FIRST

LAST

MINIKEN

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DONAID

DAll:TYPED

REUAHl) NUMBER

~!19/96
RESPONSE DUE

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PART A -INITIAL GRIEVANCE

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I want to gneve the section in Airway Heights Corrections Center (AHCe) Field Instruction 450.100, Page 9,
which states that "Bulk mail will not be delivered." Page 1 defines "bulk mail' as any "mail sent without
endorsement (i.e., address correction requested, forwarding, postage guaranteed, etc.) as classified by the Untied
States Postal Service. ~ In fact, this definition is not supported by the postal service requirements for nonprofit
bulk mail. Nonprofit bulk mail such .as the Prison Legal News (pLN) specifically state that postage has been
paid. Yet, the PLN has been rejected at AHCC, despite its apparent compliance with postal service bulk mail
requirements. The continued rejection and destruction of the PLN violates the state and federal constitutions.
"This situation
been facilitated by
is the direct result 'ot' the' delltieiate-jft<illfcrencc of the superintendent
and/or the superintendent's designee.

has

and

SUGGESTED RE~1EDY: Stop rejecting nonprofit bulk mail such as the Prison Legal News.

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GRIEVANCE COORDINAlOR'

PARTB -LEVELI RESPONSE

.?JICC field Ins tzuct'ion ~?-450.100 reads IIBuE< tail t.;ill rout ce del.Ivececi."
i·!&::.l sent cul.k class moil is a Lew ccsc postal service uhich is Iow cost iUG,tOr, f::':~, to
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for bul.k nai.L thcLe is no P051:ta r sqni.rement to delivG~ the ,i1ail rurt.isr t.h2.'::"1 the cb.c':'l:'t
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':·i~~ ccsts of ?~oc~ssi!i; ni.gh Level,s of junk mail , ill tel:":ns or staff ;?Ct:er, contraband,
to
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obvious ?.I1S\·le:: is to contact coe cencer and (la'/e
secouc cl.ass .oai.L, ti5.e:::.tly f rcm tee publ.i.sher and ill
of the institution.

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Exhibit 1.

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.•~ITIAL c;lRIEVANCE :,.'

DEPARTMENT OF CORREC'I,vNS
DIVISION OF OFFENDER PROGRAMS·
RESIDENTIAL FACIUTIES

LOG 1.0.NUMBER

9607340

AHCC

975666

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DONALD

MINIKEN

EMERGENCY (02)

FAClUTY

MIDDLE

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LAST

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DATETYPED

REMAND NUMBER

PENDING

4/19/96

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PARTA-tNmALGRIEVANC~

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the 1\tfailroom for refusingto deliver to me the January, February, March, and April issues of
the'publication Prison Legal News (PL~J. Indeed, issues of the PLN have been rejected at AUw2Y Heights
Corrections Center (AHCC) and destroyed, an without notice to me or to the PLN as the publisher. AHCe
FieldInstruction450.100, Page 14, states:
1. If any portion of an inmate' s incoming or outgoing mail is restricted for the reasons set forth in this field
instruction, written notification "ill be provided to the inmate and the sender by Mailroom staff utilizing
DOC form 5-525. (emphases added).
a, The notification shall specify the publication, letter, or package which has been restricted and include
• "thereasons for the action. (emphases ad ed).

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The field instruction includes the mandatory language of will and shall. Thus, an Offender Mail Rejection
noticewas required each time an issue of the PLN was rejected. The continuing rejection of and destruction of
the PLN violates the state and federal constitutions. This situation has been facilitated by and is the direct result
of the deliberate indifference of the superintendent and/or the superintendent's designee.
SUGGESTED RE!\-lEDY: Due to the ongoing violations, a training program should be developed to ensure
that the staff personnel responsible for handling inmates mail, understand their obligations and responsibilities to
protecll inmate's constitutional rights and th~ imP7rtce 0 honoring those obligations.
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GRIEVANCE COORDINAtoR )
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GRIEVANT

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Field Inst.ructi.on wlicv
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Ty;>:ieally, buE< ma.il is wi.tnout
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tho: publisher of ?LU BnG. set u~ errangenents to hch= E!;e ?uolication sent to the Insti.tutec
rirst or second class mail, dil:ac.tly rl:'Oi;i the ?ubU.sber- and in accordance \lic~'l Inst i tut.icn
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iio changes to policy ...." ill occur ,

YOU MAYAPPEAl.THIS RESPONSEBY SUBMITTING A WRITTEN APPEAL
TO THECOORDINATOR WITHINTWO (2) WORKING DAYSFROMDATE
THIS RESPONSE WASRECEIVED

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DOC 5-168

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4/26/96 I herebv reiterate th~·· complaint and remedy in the initial grievaIi,ee. The response does
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LE~rL II

RESPONSE

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.c~cation from Headquarters regarding bulk mail, When bulk mail arrives at an institUtiod:Jmd -has ~~tumed .
pos.~e Guaranteed" written on it, it will ~ de1ivefed to the inmate if the contents are ~ih~~ in compliance
jwitll"WAC and DOC mail policy, No othei;type ofbulkmail will be delivered to inma~ and rejection notices
wii(not'be issued due to the; enormous' woridoa~ thai wouid be ;gen~aied.'· , You'
tequest'pu~1iSh~ to s~d;
.y<nif.DW1 at postage rates' other than bulk·mia DQC Headquarters has stated that the Issue of bulk mail will be
adckessed in both the WAC and DOG policY when'ihey are next revised.
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TIiE COORDINATOR WITHIN TWO(2) WORKING DAYSFROM DATE THIS '.:
RESPONSE WASRECEIVED.
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SUPERINTENDENT I ADMINISTRATOR

Exhi~.lt 3.

DOC 5-168

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REMEDY

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APPEAI1TO LEVEL II

DEPARTMENT OFiCORRE<.. , ,JNS ~'~~.,.. , :(
DIV~SION OF OFFENDER PROGRAM$ ; .'. ~/
RESIDENTIAL FACILITiES
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I ~ant to grieve to the next level the re~~nse cif the Grievance Coordinator dated ~5196:: I received the
reSPonse on 4/26/96. I hereby reiterate th~· ~p!aint and remedy in the initial gri~ae. Wliat section of the
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AlICCField Instruction 450.100 defines "Pmk mail"?

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GRIEVANT

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I have reviewed your appeal to Levell, Level I response, and appeal to Level IT. We: have received further
ctanfication fromHeadquarters regarding bli!kmai{: When bulk mail arrives at an instit4tion and has "Returned

P~e Guaranteed" .written on it, it will ~~de1ivef.ed to the inmate if the Contents are.plherwiSe iIi compliance .
with WAC and DOC mail policy. No other'
bulk mail will be CielivCred ioinnuit~~ and rejectiOti notices
wi(not be issued d~ to the enonriou.S·w6¥0ad dlafwoi11dbe generated,' 'You can ~ilest pt.l!>lislters ~o send
your mail at postage rates other than bulk ~. nQc Headquarters has stated that the 1S~~e of bulk mail will be
ad~ed in boththe WAC and DOC policy'when theY are next revised. .
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YOU MAY APPEAl. THIS RESPONSE BY SUBMrrTlNG A WRITIEN APPEAl TO
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iExhibit 4.

DATE
DOC~'68 (REV liI92:

UNITED STAT ES DISTRICT COU RT
EA STERN DISTRI CT OF W ASH INGTON

DONALD W. MINIKEN,
Plaintiff ,

)

1
)

1

VS .

KAY WALTER; DAVID DUSS ,
De f e nd an t s .

)
)
)

CAS E NO . CS-96-407-JLQ
AFFIDAVIT OF ROLLIN WRIGHT

)

_ _ __ _ _ _ _l
STATE OF FLORIDA
COUNTY OF PALM BEACH

)
) SS
)

I, Rollin R. Wright, after first being duly sworn upon oath , do hereby depose and
say:
That I am over 21 years of age , a citizen of the United States and competent to

be a witness therein;
That I am the publisher and registered bus iness age nt of Prison Legal News , a
monthly magazine of new s and ana lysis pertaining to legal and po litical developments
affecting those involved in the criminal justice system . In this capacity I respond to
PLN 's mail, answer inquiries, receive mail and issues of the magazine which have been
returned by the post office.
No issues of PLN addressed to any subscribers at the Airway Heights
Corrections Center (A HCCl in Airway Heights, Washington, have ever been returned to
PLN by the post office or by the prison. The only time I have eve r received a notice of
mail rejection or censo rship from AHCC officials was in march , 1996, when an issue I
had sent to AHCC prisoner, and PLN SUbscriber, Billy Blankensh ip, was censored. I
have written to AHCC superintendent Kay Walter and DOC secretary Chase Rivela nd
requesting more information why that issue was censored and as of today's date
neither has seen fit to respond to my inquiry.

PLN is a non-profit educational corporation. As such it mails its publications via
third class non-profit mail, now called "standard mail" by the post office . The reason for
doing so are the non -profit rate s are significantly cheaper than first or second class
mail and has fewer bookkeeping requirements than second class mail. A brief

Exhi bit 5 .

/

-

.. i" ..
\

-.

-

-;

economic comparison: it would cost at least 55 cents to mail each issue of PLN via first
class mail, whereas now PLN pays 12.1 cents to mail each issue. Because PLN is a
reader supported non-profit operation our subscription rates are based on mailing each
issue via non-profit rates. It is not possible, economically, for PLN to send its
publications via first or second class mail.
Since AHCC opened in 1994 I have consistently received complaints from our
subscribers at that facility stating that they were not receiving their PLN. On October
27, 1995, I wrote to Chase Riveland inquiring why PLN was not being delivered to
AHCC and Washington State Penitentiary subscribers. I sent copies of this letter to
AHCC superintendent Kay Walter. (Attachment 1)
In November, 1995, I received a letter dated November 8, 1996, from Tom Rolfs,
the Director of the Division of Prisons for Washington state. (Attachment 2) He
informed me that AHCC does not deliver "bulk mail" to its prisoners. He claimed there
was no requirement that prisons process "bulk mail." At no point have I ever received
any type of notice that PLN was being censored at AHCC due to its bulk mail status,
nor have I been afforded any opportunity to appeal this censorship. It appears PLN is
simply being destroyed by AHCC officials. None have been returned to me by the post
office. To my knowledge no AHCC prisoner has ever received a copy of PLN sent to
him via third class mail.
Donald Miniken # 975666 subscribed to PLN in January, 1996. His subscription
does not end until January, 1997. Mr. Miniken has been sent an issue of PLNfor each
month since January, 1996, to his-address at P.O. Box 2019, Airway Heights, WA
99001-2019. None have been returned to me by the post office nor have I received any
notice whatsoever from prison officials that PLN was being censored.
Donald MacFarlane # 981260 has been a PLN subscriber since November,
1992. His PLN subscription is being sent to him at: P.O. Box 1839, Airway Heights, WA
99001-1839. No issues sent to Mr. MacFarlane have been returned to PLNfor any
reason nor have I received any notice that his subscription is being censored for any
reason.
Over the past two years PLN has had approximately eight to twenty subscribers
at AHCC. This number is continually declining because AHCC prisoners do not renew
their subscriptions upon learning they will not receive their copies due to the ban on
non-profit bulk mail. All issues are individually addressed to each subscriber and
includes their proper address, name of commitment, DOC number and each issue
usually requests an address correction if for any reason the post office cannot deliver a
given issue.

.

\

-

PLN has prisoner subscribers in all fifty states. The only prisons who do not
permit mail sent via third class mail are AHCC and WSP in Washington and the
Oregon DOC. I worked for the postal service for thirty years as a bulk mail specialist. I
have recently reviewed the Domestic Mail Manual and contacted George Hoyt, U.S.
Postal Service Bulk Mail Specialist for the southeastern United States. I have found no
mention of any postal rule or regulation that third class mail be treated any differently
than first class mail in terms of it being delivered to its addressee.
Contrary to Mr. Rolfs' statement, AHCC subscribers to PLN cannot make
arrangements to receive PLN via first or second class mail. Each issue of PLN is
printed and mailed via third class mail by our printer. Our entire operation is centered
on mailing issues via third class mail as an economic and logistical matter. The
Washington Department of Corrections has been unwilling to resolve the matter of bulk
mail deliver through administrative or informal means as evidenced by my
correspondence with Mr. Riveland and Mr. Rolfs.
Under penalty of pe~ury I swear that the foregoing is true and correct to the best
of my knowledge.
Sworn and Subscribed to on this 25th day of June, 1996.

ROLLIN R. WRIGHT
Publisher, Prison Legal
P.O. Box 1684
Lake Worth, FLA. 33460

,.

Prison

_

Leg~a~lN~e~w;;s~~~~~

P.O. Box 1684. Lake Worth, FL. 33460.
October 27, 1995
Chase Riveland
Secretary of Corrections
P.O. Box 41100
Olympia, WA. 98504
RE: Censorship ofPLN at WSP and AHCC
Dear Mr. Riveland,
I am the publisher of Prison Legal News, a monthly magazine which reports legal andpolitical
developments affecting those involved withthe criminal justice system. As you may know, we have
subscribers across the country, including throughout the Washington DOC.
I am writing because I have received repeated complaints from subscribers at both the Washington
State Penitentiary (WSP) and Airway Heights Correction Center(AHCC) that they are not receiving
theirissues ofPLN. The issues are beingsent to these subscribers at their correctaddresses andthey
are not beingreturned by the post office as undeliverable nor haveI received any notice of mail
rejection stating that PLN is beingcensored for any reason. This has been a repeated, consistent
problem at WSP for the past five years and at AHCCsince it opened. These problems do notoccurat
anyotherWashington state facilities, nor anywhere else in the country for that matter.
It seems apparentthat officials at WSP and AHCC are illegally censoring PLN by destroying the issues
without noticeto either the subscribers or myself. Needless to say,this violates both stateand federal
law concerning the delivery of mail in general and the censorship of prisoner mail inparticular. Please
advise me what steps you plan to take to ensure that PLN is properly delivered to its WSP and AHCC
subscribers or in the event of censorship boththe affected subscribers and I are notified of the
censorship and providedan opportunity to appeal the matter.
Also. please adviseme what the procedure is for me, as PLN's publisher, to send unsolicited copies of
PLN to prisoners at WSP. If you haveany questions please do not hesitate to contact me at the above
address or phone. I look forward to your replyand assistance in this matter.
Sincerely,

1:4
Rollin Wright,
Publisher, PLN

cc: Tana Wood, Superintendent, WSP; Kay Walters, Superintendent, AHCC; Michael Gendler,
Attorney at Law; John Midgley. Evergreen Legal Services; As Needed

AttachJ1J,rit

STATE OF WASHINGTON

DEPARTMENT OF CORRECTIONS
DIVISION OF PRISONS
P.O. BOX 41123

•

Olympia, Washington 98504-1123

•

(360) 753-1502

FAX: (360) 586-9055

November 8, 1995

Rollin \Vright

Prison Legal News
P.O. Box 1684
Lake Worth, FL 33460
Dear Mr. Wright:
Secretary Chase Riveland asked me to respond to your recent correspondence appealing the
alleged censorship of your publication by Airway Heights Corrections Center and the
Washington State Penitentiary.
In reference to your question concerning the distribution of Prison Legal News, the facilities
handle bulk mail differently. Airway Heights Correction Center does not process incoming bulk
mail to offenders. The Washington State Penitentiary allows for offenders to receive free
publications sent via bulk mail provided it has been approved in advance and the publication
does not violate the Department of Corrections policy on mail. The Washington State
Penitentiary Field Instruction 450.100, Inmate Use ofMail, outlines the process required.
According to recent court rulings and the United State Post Office, there is no requirement to
process incoming bulk mail to offenders since offenders can arrange to have materials sent by
first or second class mail. Mail room staff are extremely busy and do not have the time to
examine bulk mailings for contraband articles.
Sincerely,

/}t::J

~I
Fh" .
LI ~(;6

~

Tom Rolfs, Director I
Division of Prisons
TR:srb.Sec 915
cc:

Secretary Chase Riveland
Superintendent Tana Wood, WSP
Mail Room Supervisor, WSP
~

Attachment

~

1
2

3

DONALD W. MINIKEN #975666
Airway Heights Corrections Center
P.O. Box 2019, K-A-51-L
Airway Heights, WA 99001-2019
{509} 244-6700

4

5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

6
7

DONALD W. MINIKEN,

8
9

Plaintiff,
vs.

10

KAY WALTER and DAVID BUSS,

11

Defendants.

}

No. CS-96-407-JLQ

)
}

}
}
}
}
}
)
)

NOTICE OF HEARING
NOTE ON MOTION DOCKET:
August 5, 1996

12

13 TO:

Clerk of the above-entitled court.

14

PLEASE TAKE NOTICE that plaintiff's Motion for Temporary

15 Restraining Order and/or Preliminary Injunction will be brought
16 on for consideration without oral ar~ument on Monday, August 5,

17

1996, and the clerk is requested to note this cause on the motion

18 docket for that day.
19

20

Respectfullj submitted this 18th day of July, 1996.

21

22
23

W. Minik
#975666
Airway Height Corrections Center
P.O. Box 2019, K-A-51-L
Airway Heights, WA 99001-2019

24
25
26

27
28 NOT OF HEAR

-1-

J

1
2

3

DONALD W. MINIKEN #975666
Airway Heights Corrections Center
P.O. Box 2019, K-A-51-L
Airway Heights, WA 99001-2019
(509) 244-6700

4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6

7 DONALD W. MINIKEN,
Plaintiff,

8
9

vs.

10

KAY WALTER and DAVID BUSS,

11

Defendants.

)
)
)
)
)
)
)
)
)
)

No. CS-96-407-JLQ

MOTION FOR TEMPORARY
RESTRAINING ORDER AND/OR
PRELIMINARY INJUNCTION

12

13
14

COMES NOW the plaintiff Donald W. Miniken, appearing pro se,
hereby moves this court for an order granting a Temporary

15 Restraining Order and/or Preliminary Injunction: (1) enjoining
16 defendants from rejecting mail addressed to plaintiff without

17

affording plaintiff notice of rejection and an opportunity to

18 appeal the rejection to an impartial third party; and (2)

19

enjoining defendants from rejecting mail addressed to plaintiff

20

on the sole ground that the mail is sent bUlk rate.

21

This motion is based upon Rule 65 of the Federal Rules of

~ Civil Procedure, and the attached memorandum of authorities.
~

Respectfully submitted this 18th day of July, 1996.

24
~

26
27
28 MOT FOR TRO/PI

Donald W. Miniken
Airway Heights Co
ctions Center
P.O. Box 2019,
-A-51-L
Airway Heights, WA 99001-2019
-1-

1
2

3

DONALD W. MINIKEN #975666
Airway Heights Corrections Center
P.O. Box 2019, K-A-51-L
Airway Heights, WA 99001-2019
(509) 244-6700

4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

5
6

7 DONALD W. MINIKEN,
Plaintiff,

8
9

vs ,

10 KAY WALTER and DAVID BUSS,
11

12
13

14

Defendants.

)
)
)
)
)
)
)
)
)

No. CS-96-407-JLQ

MEMORANDUM OF AUTHORITIES
IN SUPPORT OF MOTION FOR
TEMPORARY RESTRAINING ORDER
AND/OR PRELIMINARY INJUNCTION

--------------)
COMES NOW the plaintiff Donald W. Miniken, appearing pro se,
respectfully submits this memorandum in support of his Motion for

15 Temporary Restraining Order and/or Preliminary Injunction.
16

17

STATEMENT OF THE CASE
This is a civil rights complaint brought by a pro se

18 prisoner litigant pursuant to 42 U.S.C.

§ 1983.

Plaintiff

19 alleges that defendants have rejected and destroyed copies of the

20

Prison Legal News - a monthly magazine of news and analysis

21 pertaining to legal and political developments affecting those

22

involved in the criminal justice system -

when they arrived at

23 the Airway Heights Correction Center, without notice of or

24 reasons given for rejectiny the magazines.
25

In his complaint plaintiff alleges that defendants have

26 violated his First Amendment rights by rejecting a magazine
27 mailed to him solely because it was sent via bulk mail and by

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

-1-

1

failing to afford plaintiff any measure of process in rejecting

2

the magazine.

Plaintiff seeks declaratory, injunctive and

3 monetary relief.

Plaintiff seeks this Temporary Restraining

4

Order and/or Preliminary Injunction to halt the continuing

5

violation of his constitutional rights.

6

sworn under

~enalty

of perjury and

7

Plaintiff's complaint is

su~~orts

this motion.

DISCUSSION

8

A litigant may be granted a temporary restraining order by

9

the court upon showing that plaintiff is in danger of immediate

10

and irreparable injury, that the adverse party will not be

11

substantially harmed if the temporary restraining order is

12

granted, and that the plaintiff has a strong likelihood of

13

success in his lawsuit.

14

(9th Cir. 1987).

Cassim v. Bowen, 824 F.2d 791, 795

15

A party seeking a preliminary injunction " • . • must show

16

either (1) a combination of probable success on the merits and

17

the possibility of irreparable injury, or (2) the existence of

18

serious questions going to the merits and that the balance of the

19

hardships tip sharply in [the movant's] favor."

20

v. Borg, 918 F.2d 793, 795 (9th Cir. 1990).

Diamontiney

21

A.

22

The loss of constitutional rights, even for a short period

Irreparable Injury.

23

of time, constitutes irreparable injury.

24

u.s.

25

defendants decision to censor or reject copies of the Prison

26

Legal News, without affording plaintiff any measure of process

27

constitutes irreparable harm.

28

MEM OF AUT IN SUP OF MOT FOR TRO/PI

347, 373, 96 S.Ct. 2673, (1976).

Elrod v. Burns, 427

In the present case,

-2-

1

B.

2

Defendants will suffer no harm if enjoined to deliver the

No Harm to Defendants.

3 Prison Legal News to plaintiff

~endin9 resolution of this action.

4

C.

5

Rights secured by the First Amendment are fundamental, and

Likelihood of Success on the Merits.

6 convicted prisoners retain all First Amendment rights not

7 incompatible with their status as prisoners.
8

Thornburgh v.

Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).

9 Because lawful incarceration legitimately requires the retraction
10 or withdrawal of many rights and privileges, the courts apply a
11 reasonableness test "less restrictive than that ordinarily
12 applied to alleged infringements of constitutional rights."

13

O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400,

14

96 L.Ed.2d 282 (1987).

15

prisoner's ability to receive a ~ublication are analjzed under

16

the Turner test of reasonableness: "such regulations are valid if

17

they are reasonably related to legitimate penological interests."

Prison regulations which affect the

18 Thornburgh, 490 U.s. at 414, (citing Turner v. Safley, 482 U.S.

19

78, 89~ 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987».

20

to the present case, the question is whether the rejection of a

As applied

21 magazine sent to plaintiff on the sole ground that it is sent
22 bUlk rate is reasonably related to legitimate penological
23 interests.

24

The law is well established that it does not.

Under state regulations, there is no limit to the amount of

25 first class mail a prisoner may receive, but the Department of
26 Corrections may limit amounts and types of all other mail (AHCC

27

FI 450.100).

Operating pursuant to the regulati'on, defendants

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

-3-

1 prohibit prisoners from receiving all bulk rate mail.

2

Defendants

have articulated no reason, let alone a legitimate penological

3 one, for a blanket prohibition against mail sent by bUlk rates.

4

The Sixth Circuit rejected such a distinction.

In Brooks

5 v. Seiter, 779 F.2d 1177 (1985), the court held that there is "no
6 principled basis for distinguishing pUblications specifically

7 ordered by a prison inmate from letters written to that inmate

8

for purposes of first amendment protection."

9

court there rejected any distinction based upon the commercial

~.

at 1181.

The

10 nature of the pUblication or the fact that a subscription to a

1£.

11

publication constitutes a commercial transaction.

12

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer

13 Council, Inc., 425

14

(1976».

u.s.

(citing

748, 96 S.Ct. 1817, 48 L.Ed.2d 346

Courts in the Ninth Circuit have also rejected such

15 distinctions.

Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.

16 1989); Pratt v. Sumner, 807 F.2d 817, 819-20 (9th Cir. 1987);

17

Campbell v. Sumner, 587

F.Sup~.

376, 378 (D. Nev. 1984); Martyr

18 v. Mazur-Hart, 789 F.Supp. 1081, 1085 (D. Or. 1992).

These cases

19

all support the proposition that interference with a prisoner's

20

incoming mail must be based upon some consideration of prison

21 order, safety, security, or rehabilitation.

22

Prison officials may

not enforce blanket prohibitions against classes of incoming mail

23 based on irrelevant considerations such as its bUlk rate postage

24
25

or commercial nature.
Likewise, there is no legitimate distinction for First

26

Amendment purposes between first class mail and printed

27

publications sent by bUlk rate mail, simply on the basis of the

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

-4-

-,

1

postage rate.

2

"legitimate reasons for interfering with a prisoner's incoming

3 mail."

Prison officials bear the burden of putting forth

Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986).

In the absence of any legitimate penological interest - either

4

5 raised by defendants or envisioned by the court - the rejection
6 of plaintiff's magazine solely because the magazine travelled by

7 bulk rate is an unreasonable infringement of plaintiff's First
8 Amendment rights.

~

Thornburgh, 409

u.s.

at 417, (First

9 Amendment protects sUbscription publications to prisoners);
10 Pepperling v. Crist, 678 F.2d 787 (9th Cir. 1982); Brooks v.
11 Seiter, 779 F.2d at 1181; Guajardo v. Estelle, 580 F.2d 748 (5th
12 Cir. 1978) (prisoners have First Amendment right to receive

13 printed pUblications by mail order or subscription).l
The practical effect of defendants practice is to

14

15

unilaterally exempt from First Amendment protection all mailings

16

sent by bUlk rate, regardless of the mailing's content or effect

17

on the security of the prison.

Although the law accords prison

18 officials wide ranging deference, it does no cede them unilateral
authority over constitutional rights.

19

20 873, 877 (9th Cir. 1993).

~

Ward v. Walsh, 1 F.3d

Prison officials remain free to impose

21

22

1Courts have declined to reach the question of the proper
treatment
to be given to "mass mailings" under the First
23
Amendment. Procunier v. Martinez, 416 u.s. 396, 408 n. 11
24 (1974); Brooks v. Seiter, 779 F.2d at 1180. The present case,
like Brooks does not involve mass mailings. Under the Brooks
25 standard, a "single order of a particUlar pUblication more nearly
resembles personal correspondence than a mass mailing." Id.
Accordingly,
this court likewise has no need to address the
26
proper handling of true mass mailing, such as coupon flyers, sale
27 advertisements, and mail addressed to "occupant".

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

".·:..,..c

..n

t.

. t &QZZ,A

dm.i

. t! .6.

-5-

1

reasonable restrictions upon incoming mail, when either the

2

content of the mail or its packaging presents a threat to the

3

institution.

4

("publisher or bookstore only" rule valid because of threat of

5

smuggling contraband); Harper v. Wallingford, 877 F.2d at 733;

6

(materials advocating homosexuality properly screened from prison

7

because of threat to security).

8

have not alleged any colorable reason, based either on

9

substantive content or dangerous packaging, justifying blanket

See~,

Pratt v. Sumner, 807 F.2d at 819-20;

In the present case, defendants

10 rejection of all bUlk rate mail.
11

12

Furthermore, even if defendants rejection of the magazine
were reasonably related to legitimate penological interests,

13 defendants nevertheless violated plaintiff's constitutional

14

rights by failing - seven times - to accord him any notice or

15 appeal in connection with the rejections.

The deciSion to censor

16 or withhold delivery of particular articles of mail must be

17 accompanied by "minimum procedural safeguards."

~

Procunier

18 v. Martinez, 416 u.S. 396, 417, 94 S.Ct. 1800, 40 L.Ed.2d 224

19

(1974).

20

adequately protect the important First Amendment interests at

21 stake:

22

The following three procedures are required to

(1) notice of rejection must be given to the inmate; (2)

the author or sender of the materials must be given notice and an

23 opportunity to protest the decision rejecting the materials; and

24

(3) the inmate must have the opportunity to appeal the rejection
~.

25 at a hearing conducted by an impartial third party.

26

at 418.

Plaintiff did not receive notice or written reasons

27 explaining why his magazines were not being delivered.

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

The

-6-

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1 publisher of the Prison Legal News states that none of the copies
2

sent to plaintiff have ever been returned, nor has he received

3

any notice whatsoever from defendants that the magazine was being

4

censored.

5

will be delivered to inmates and rejection notices will not be

Exhibit 5.

Defendants state that no

II • • •

bUlk mail

6 issued due to the enormous workload that would be generated."

7

Exhibits 3 & 4.

By their own words defendants seek to exempt

8 certain mail from the coverage of binding Supreme Court and Ninth
9 Circuit authority.

Clearly, plaintiff did not receive the

10

minimum procedural safeguards that shoUld have accompanied the

11

decision to reject delivery of the Prison Legal News.

Defendants

12 conduct in this regard also constitutes an infringement of

13 plaintiff's constitutional rights.

14
15

CONCLUSION
Based on the facts in this case, the applicable case law and

16 plaintiff's showing of irreparable harm and likelihood of success

17

on the merits, plaintiff respectfully moves this court to ~rant

18 the Temporary Restraining Order and/or Preliminary Injunction

19

pending resolution of this action on the merits •

. 20
21

Respectfully submitted this 18th day of July, 1996.

~

~

24

Donald W. Miniken
5666
Airway Heights Co ections Center
P.O. Box 2019, K-A-51-L
Airway Heights, WA 99001-2019

~

26
27

28 MEM OF AUT IN SUP OF MOT FOR TRO/PI

-7-



 

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