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PLN in Court

by Paul Wright

Since PLN started in 1990 we have been censored in prisons and jails around the country. We have always attempted to resolve censorship issues administratively, but in cases where the goal was to keep PLN out of prison at any cost, that obviously wasn't possible. We have aggressively challenged censorship across the nation and have won all but one of our battles. I would like to thank all the fantastic attorneys who have represented PLN in censorship and public records litigation over the years. Thanks also go to those attorneys who volunteered to represent us in suits that we wound up not having to file after all. A brief summary of PLN's closed cases are:

Washington Parole Suit: In 1994 Ed Mead and Paul Wright sued the Washington Indeterminate Sentencing Review Board challenging their order that Ed have no contact with any felons for the purpose of publishing PLN. In an unpublished ruling, judge Robert Bryan of Tacoma upheld the ban. The case was dismissed as moot by the Ninth circuit when, after three years, Ed was discharged from ISRB supervision. The suit was sponsored by the ACLU of Washington. Frank Cuthbertson and Mike Kipling represented the plaintiffs. See: Mead v. ISRB.

Washington Bulk Mail Ban: When Airway Heights Corrections Center opened in 1994 it banned all third and fourth class mail. In l996 PLN subscribers Don Miniken and Don MacFarlane filed suit against the practice. In Miniken v. Walter, 978 F. Supp. 1356 (ED WA 1997), the ban was struck down as unconstitutional. In another, unpublished ruling, MacFarlane v. Walter, another judge also struck down the ban. Mickey Gendler represented Don Miniken on behalf of the WA ACLU. In addition to an injunction the court awarded attorney fees, costs and damages.

Utah Jail Publication Ban: In 1995 a PLN subscriber was transferred to the Box Elder county jail in Utah, which banned all publications. PLN and another publisher filed suit challenging the ban. Soon after filing the jail settled, paying damages and attorney fees and changing their policy. Brian Barnard represented PLN in this suit. See: Catalyst v. Box Elder County.

Michigan Book Ban: In 1998 the Michigan DOC banned our book, The Celling of America: An Inside Look at the U.S. Prison Industry, from all of its prisons claiming the book incited violence. PLN, Common Courage press (the book's publisher) and two prisoners filed a class action suit challenging the ban. Michigan prison officials settled soon afterwards, paying damages, costs and attorney fees, removing the book from their banned book list and revamping their censorship procedure. The plaintiffs were represented by Dan Manville. See: PLN v. Ransom.

Washington Gift Subscription Ban: Beginning in the mid 1990's the Washington State Penitentiary in Walla Walla began to require that prisoners purchase all books and publications from their prison trust accounts. PLN was among the publications censored under this policy. Clayton Crofton challenged the policy pro se and obtained two injunctions requiring delivery of his PLN subscription even though not purchased from his prison trust account. The injunctions were upheld on appeal. Mickey Gendler represented Crofton on appeal. See: Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999).

Washington Censorship Litigation: In 1997 PLN filed suit, with other publisher and prisoner plaintiffs, challenging a Washington DOC ban on third class mail, gift subscriptions, bans on magazine articles, photocopies and court rulings, limits on newspaper articles, sexually explicit materials, etc. In early 2000, the Washington DOC settled the suit by changing its mail censorship policies and paying attorney fees and costs for the plaintiffs. The suit was sponsored by the ACLU of Washington. The plaintiffs were represented by Seattle attorneys Mickey Gendler, of Gendler and Mann and Joe Bringman of Perkins Coie. See: Humanists of Washington v. Lehman.

Utah Jail Bulk Mail Ban: In 1998 the San Juan county jail in Utah refused to deliver PLN to a jail prisoner subscriber because it was sent third class mail. PLN filed suit challenging the rule. The case eventually settled for fees, damages and a change in jail policy. PLN was represented by Brian Barnard. See: PLN v. San Juan County.

Oregon Bulk Mail Ban I: From 1991 until 2001, the Oregon DOC banned third class mail from its prisons. In 1998 PLN filed suit challenging the ban. We lost in the district court and appealed to the Ninth circuit which reversed in PLN v. Cook, 238 F.3d 1145 (9th Cir. 2001). The appeals court instructed the lower court to enter injunctive relief in PLN's favor holding that the ban on bulk mail, and absence of due process when such mail was censored, violated the constitution. The district court entered an injunction, which is still in effect, and awarded attorney fees. PLN was represented in the district court by Alison Hardy and Marc Blackman of Portland. On appeal it was represented by Sam Stiltner and Janet Stanton of Seattle.

Oregon Bulk Mail Ban II: Despite the injunction in PLN v. Cook, the Oregon DOC continued to ban mail sent by PLN to Oregon prisoners via standard rate mail. The Oregon DOC also enacted bans on catalogs and gift subscriptions and continued censoring mail without notice to the sender. PLN filed a second suit challenging these practices. The Oregon DOC settled the suit in 2002 by entering into a consent decree, which remains in effect, changing the challenged policies, paying PLN damages and its attorney fees. PLN was represented by Mickey Gendler of Seattle and Marc Blackman of Portland, Oregon. See: PLN v. Schumacher.

Alabama Gift Subscriptions: The Alabama DOC prohibited its prisoners from getting gift subscriptions to publications. Prisoners were forced to buy subscriptions from their prison trust accounts. Publishers were not notified when their publications were censored. PLN filed suit in 1999 challenging the practice. The case settled in 2000 while a ruling was pending on the party's cross motions for summary judgment. Under the terms of the settlement the Alabama DOC changed its policies to allow prisoners to receive subscriptions and to provide notice to the sender if mail was censored. PLN was represented by Rhonda Brownstein and Catherine Smith of the Southern Poverty Law Center. See: PLN v. Haley.

Washington Nazi Guard Censorship: The May, 1999, issue of PLN was censored in all Washington prisons because it contained an investigative expose of Nazi and white supremist guards employed by the Washington DOC. PLN filed suit in late 1999 and the district court dismissed the case soon afterwards. In an unpublished decision, the Ninth circuit reversed and remanded for consideration of the equitable relief claims. On remand the district court quickly dismissed the case on the merits, disregarding PLN's extensive evidence and pleadings that the censorship was a self serving ploy by the Washington DOC to keep racist guards on the payroll. The 9th circuit, in an unpublished opinion, affirmed the dismissal. PLN was represented by Frank Cuthbertson (now a Pierce county superior court judge), Darrell Cochran and Jongwon Yi of Gordon, Thomas, Honeywell in Tacoma, Washington. See: PLN v.Washington DOC.

Nevada Ban: In 2000 the Nevada prison system banned all copies of PLN claiming that the magazine constituted inmate correspondence." PLN filed suit and obtained a preliminary injunction requiring delivry of PLN's mail and materials to Nevada prisoners. The defendants settled shortly afterwards by entering into a consent decree, that remains in effect, agreeing to deliver PLN and pay damages. The court awarded PLN its attorney fees in the case. PLN was represented by David Fathi of the ACLU National Prison Project and Don Evans of Reno, Nevada. See: PLN v. Crawford.

Washington Public Records Case I: In the course of investigating stories I frequently file Public Disclosure Act requests with various state agencies. The Washington DOC has a long record of refusing to comply with state disclosure laws in its attempts to cover up its misfeasance and misconduct. After being denied documents relating to staff misconduct and prison industries PLN filed suit. In this first case the court ordered the Washington DOC to disclose documents relating to the closing of a private prison industries telemarketing company and awarded PLN its attorney fees and penalties in the case. PLN was represented by David Bowman of Davis, Wright and Tremaine. See: PLN v. Washington DOC.

Washington Public Records Case II: In our second public records suit, a Pierce County superior court judge ordered the Washington DOC to provide PLN with records relating to environmental contamination and safety issues at the McNeil Island Corrections Center. The DOC was ordered to pay PLN's attorney fees, costs and statutory penalties. PLN was represented by Shelley Hall of Davis, Wright and Tremaine. See: PLN v. Washington DOC.

Censorship by US Military Prison: In 2003 the U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas, censored an issue of PLN due to our advertising content. A federal district court held the censorship was unconstitutional and ordered it delivered to prisoner Craig Waterman who litigated the case pro se. See: Waterman v. Commandant, 337 F.Supp.2d 1237 (D KS 2004).

The following lawsuits are still pending as we go to press:

Utah Bulk Mail Suit: In 1997 the Utah DOC attempted to ban third class mail. PLN sued and the ban was quickly rescinded with an agreement to settle. The case was dismissed by the court in 2004, holding that PLN had failed to state a claim on the issue it has won in five published opinions elsewhere. The case is on appeal to the 10th circuit. PLN is represented by Brian Barnard. See: PLN v. Haun.

ADX Ban: In 2003 PLN sued the warden of the US Penitentiary in Florence, Colorado after the Administrative Max (ADX), the super max" prison of the federal Bureau of Prisons, began censoring PLN under a local policy that banned all publications that discuss prisons or prisoners. The case has withstood a motion to dismiss by the defendants and is current in discovery. PLN is represented by Mickey Gendler of Seattle and Bill Trine of Colorado. See: PLN v. Hood.

Kansas Ban on Gift Subscriptions: In 2002 PLN sued the Kansas DOC over its policy requiring that pruisoners purchase all subscriptions and publications from their prison trust accounts, a policy limiting such expenses to $30 per month, a ban on publications being sent to certain levels of prisoners and the fact that Kansas DOC policy did not provide for notice to be sent to the publisher when mail was censored. The district court dismissed the suit, after consolidating it with the complaints filed by two Kansas prisoners, see: Zimmerman v. Simons, 260 F. Supp. 2d 1077 (D KS, 2003). On appeal, the Tenth circuit reversed and remanded, holding PLN had produced sufficient evidence entitling it to a trial on the matter. As a matter of law, the appeals court held PLN was entitled to judgement on its due process claims and ordered the lower court to enter an injunction on the matter. See: Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004). The case is currently scheduled for trial in September 2005. PLN is represented by Kansas attorneys Bruce Plenk and Max Kautsch.

Florida Ad Ban and Writer Pay Suit: Beginning in 2002 the Florida DOC began to censor PLN allegedly due to our discount phone service ads, later expanded to include our pen pal ads as well. The Florida DOC also prohibits its prisoners from receiving payment for writings submitted to the publications. PLN filed suit challenging these policies and the case is currently set for trial, after denial of summary judgment motions, on June 6, 2005. PLN is represented by Mickey Gendler of Seattle and Randall Berg and Cullin O'Brien of the Florida Justice Institute. See: PLN v.Crosby.

Washington Bulk Mail, Catalog and Legal Materials Suit: In 2001 PLN filed suit against the Washington DOC challenging its censorship of PLN's book and subscription flyers, renewal notices and mail sent via standard rate mail. Also challenged was the DOC's propensity to censor court rulings, legal pleadings, settlements and verdicts when sent to Washington prisoners. The trial court entered summary judgment in the claims against the Washington DOC and enjoined the bans on bulk mail and catalogs and required that due process be given when these items were censored. The court set for trial those claims relating to the censorship of legal materials. See: PLN v. Lehman, 272 F.Supp.2d 1151 (WD WA 2003). The defendants filed an immediate, interlocutory appeal, which they lost. See: PLN. Lehman, 397 F.3d 692 (9th cir. 2005). The remaining claim is set for trial. PLN is represented by Jesse Wing, Carrie Wilkinson and Tim Ford of McDonald, Hogue and Bayless in Seattle.

Washington Public Records Case III: In 2000 I filed a public records request seeking extensive information on the discipline of medical staff for the maiming and murder of prisoners through medical neglect as well as how many medical staff had suspended medical licenses or had been subjected to medical discipline. The DOC refused to provide the materials claiming that doing so would hinder its law enforcement functions. PLN filed suit and has lost at the trial and appeals court levels. The case has been argued before the Washington state supreme court and we are currently awaiting a ruling. PLN is represented by Andy Mar and Alison Howard of Davis, Wright and Tremaine. See: PLN v. Washington DOC.

Utah Jail Publications Ban: In 2004 PLN sued the Cache County Jail in Utah over its policy banning all publications from being received by jail prisoners as well as catalogs. That case is pending. PLN is represented by Brian Barnard. See: PLN v. Cheshire.

PLN has achieved impressive results over the years in court. More so when one considers that PLN has no litigation budget. We rely on counsel willing to represent us on contingency or pro bono. Our court room success has been due to the excellent lawyers who represent PLN and PLN's staff who are able to marshal the facts necessary for our lawyers to prove and win our claims. The cases we file directly impact the free speech rights of PLN and our subscribers as well as all other publishers and prisoners alike. In most cases we are attacking broader censorship practices that have a wider impact beyond the immediate parties to the suit. We are committed to the principle that any prisoner in the US who wishes to receive PLN or the books we distribute should be able to do so. Sadly, we are the only publisher who consistently steps up and asserts these important free speech and public records rights. We report the filing and conclusion of our lawsuits in PLN. Unfortunately; we have more in the works around the country.

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