by John E. Dannenberg
As previously reported in PLN, the Ninth Circuit U.S. Court of Appeals affirmed the U.S. District
Court ruling (Prison Legal News v. Lehman, 272 F.Supp.2d 1151 (W.D. Wash. 2003); see PLN, Sep.
2003, p.18) enjoining the Washington Department of Corrections (WADOC) from banning
prisoners receipt of non-subscription bulk mail and catalogs because the WADOCs policy was
not related to a legitimate penological objective. However, the Ninth Circuit held that WADOC
was qualifiedly immune from damages for this ban because there was no prior clearly established
precedent that this was unconstitutional. But WADOC was not qualifiedly immune from damages
for its additional policy of allegedly discriminating against PLN (only) by banning WADOC
prisoners' receipt of 3rd party legal materials from PLN. See: Prison Legal News v. Lehman, 397 F.
3d 692 (9th Cir. 2005).Rather than take this evidentiary issue to trial, WADOC agreed to settle by
paying damages and attorney fees/costs totaling $442,500.
PLN's editor, Paul Wright (then a WADOC prisoner) had had his mail from PLNs office censored
because it contained, inter alia, legal case material relating to miscreance by WADOC prison staff.
The censored materials included: United States and Washington state supreme court opinions,
verdicts and settlements in prison and jail cases, legal pleadings and similar items. When PLN
sent similar materials to other Washington prisoners the material was also censored. Over 100
such instances were documented. The district court had enjoined WADOC from the censorship of
mail sent at non profit rates and the censorship of PLNs book and subscription flyers but had
held that material issues of fact requiring a trial did not allow it to rule on the censorship of legal
On WADOCs appeal, the Ninth Circuit held that as to WADOCs 3rd party legal mail restrictions,
this discriminatory policy clearly violated PLNs First Amendment rights.For this reason, WADOC
was not protected by qualified immunity. WADOCs alleged impure motive proved to be its own
undoing, because its restriction had been aimed solely at PLN. While the ultimate resolution of an
impure motive was reserved for a jury to decide, the matter was resolved when WADOC finally
cut its losses and capitulated to a damage settlement. The stipulation covers all liability up to the
date of the agreement, August 3, 2005.
Provisions of the settlement are $100,000 in damages to PLN for its injuries, $52,500 to PLN's
attorneys for their successful appellate defense in the Ninth Circuit, and $290,000 to PLN's
attorneys for their five years of dedicated professional service at the district court level to save
PLN from WADOCs unconstitutional oppression. PLN was diligently and skillfully represented on
at the lower court level and on appeal by Jesse Wing, Tim Ford and Carrie Wilkinson of the Seattle
law firm of McDonald, Hogue and Bayless. The attorney fee provisions include almost $30,000 in
out of pocket costs advanced by counsel through the course of the case.
This is believed to be the largest settlement or damage award involving First amendment rights
in a prison or jail in US history. While the Washington DOC settled the case at mediation before
US District court judge Ricardo Martinez on the eve of trial, it did not agree to stop censoring
legal materials sent to Washington prisoners. For its part, PLN did not agree to stop sending such
materials to Washington prisoners. The injunctions entered by the district court are not affected
by the settlement and remain intact. See: Prison Legal News v. Lehman, USDC WD WA, Case No.
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Related legal case
Prison Legal News v. Lehman
|Cite||USDC WD WA, Case No. CV-01-1911L|