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PLN Wins Kansas Censorship Suit
On October 1, 2007, in a lawsuit filed by Prison Legal News (PLN), the U.S. District Court for the District of Kansas held that a Kansas prison policy limiting the amount of money prisoners can spend on publications, a total ban on gift subscriptions, and the failure of the Kansas Department of Corrections (KDOC) to provide notification of censored or undelivered items--to either the prisoners or the publishers--was unconstitutional.
In 2002 PLN filed a lawsuit in federal district court challenging a KDOC policy that prohibited prisoners from receiving gift subscriptions (that is, those paid for by family or friends) and limited the amount of money prisoners could spend on publications. Under the policy, prisoners at the highest custody level were allowed to spend $40 a month on publications from their canteen funds (excluding newspaper subscriptions), and prisoners at the lowest custody level were prohibited from ordering publications altogether. In addition, the KDOC did not provide notification to publishers or prisoners when publications were denied.
After consolidating PLN’s case with two ongoing lawsuits filed by KDOC prisoners Kris Zimmerman and Joseph Jaclovich, US District Court Judge G. Thomas VanBebber granted summary judgment to the prison system on April 29, 2003. PLN and the prisoners appealed.
On December 21, 2004, the U.S. Tenth Circuit Court of Appeals reversed the district court’s erroneous decision in favor of the defendants and remanded the case for reconsideration. See: Jacklovich v.Simmons, 392 F.3d 420 (10th Cir. 2004).
Following remand, the district court dismissed all claims against KDOC director Roger Werholtz in his individual capacity. The Court also dismissed Jacklovich and Zimmerman as plaintiffs in the lawsuit holding that their claims were moot since they had been paroled.
On October 1, 2007, the district court entered its findings of facts and conclusions of law in which it held as unconstitutional the KDOC’s policy of limiting the amount of funds prisoners can spend on publications and its ban on gift subscriptions. This decision was based on the outcome of a two day bench trial held February 13-14, 2007, attended by PLN editor Paul Wright and PLN director Don Miniken.
Specifically, the court held that the regulations were not reasonably related to legitimate penological interests, that prisoners had no alternative means of attaining desired publications, and that eliminating the regulations would not significantly impact prisoners, guards, or the prison. The court further held that the KDOC had ready, constitutional alternatives that would meet its proffered penological interests.
In addition, the district court held that the KDOC must immediately notify both prisoner and publisher at the time a publication is censored via a form proposed by PLN. This ruling complied with the 10th Circuit’s order requiring the district court to develop a procedure in which publishers would receive “adequate individualized notice,” when a publication is denied.
As a testament to the indefensibility of the KDOC’s unnecessary censorship policy, Judge Monti L. Belot strongly discouraged the KDOC from filing a motion for reconsideration and limited the length of any such motion to no more than five pages. The Kansas DOC did not appeal the ruling which has since become final.
PLN was well and tenaciously represented by attorneys Bruce Plenk and Max Kautsch. The court awarded PLN $69.310.82 in attorney fees and costs. Because the defendants had succeeded in obtaining qualified immunity for their illegal actions PLN received no damages for the lost book sales, losing half of its Kansas DOC subscribers, the censored copies of PLN or the denial of due process. PLN is especially grateful to Bruce and Max for their excellent representation of this case through almost six years of litigation. See: Prison Legal News v. Werholtz, USDC, D KS, Case No. 02-4054-MLB.
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