California Prisoner Allowed to Sell Banned Book on Condition that Profits Go to Charity Approved by Prison Officials
In January 2012, the Warden of California’s notorious Pelican Bay State Prison (PBSP) stipulated to a settlement agreement with PBSP prisoner Dale Bretches, who in 2006 had filed suit pursuant to 42 U.S.C. § 1983 alleging that prison officials violated his First Amendment rights when they prohibited him from engaging in a revenue-generating activity, namely publishing and offering to sell Dog O’ War, a book he wrote regarding the circumstances surrounding the tragic and fatal mauling of Diane Whipple in San Francisco, by two dogs from a kennel that Bretches co-founded.
The PBSP warden had banned Dog O’ War from entering the prison and deemed it contraband. Bretches was also found guilty of “unauthorized business dealings” in violation of Section 3024(a) of Title 15 of the California Code of Regulations.
Although Bretches had requested injunctive relief to lift the ban against his book and to set aside the disciplinary finding against him, the settlement agreement left the ban in place and made no mention of the disciplinary finding.
Under the terms of the settlement, prison officials agreed to allow Bretches to have his book published for distribution, on the condition that he first assign all rights to the profits or royalties of any kind form the sale of his book to a non-profit organization; the choice of non-profit organization, however, would be subject to prison officials’ prior approval.
Significantly, for the purpose of entitlement to attorney’s fees, Bretches was designated as the prevailing party in the action. Prison officials agreed to pay $40,000 to Herman Franck, Bretches’ attorney, but they admitted no liability or wrongdoing of any kind.
The dog-mauling death of Diane Whipple had received considerable attention in the media, in part because the dogs were in the care and custody of San Francisco attorneys Robert Nod and Marjorie Knoller at the time of the attack and in part because the attack against Whipple as viewed as a hate crime by the LGBT community in San Francisco. Nod and Knoller were ultimately convicted of manslaughter in Whipple’s death.
Bretches contended that press reports concerning Whipple’s death included “many, many lies” such as that his dog kennel was an Aryan Brotherhood project. Those “lies,” he asserted, “disgusted” him. He wrote his book, he claimed, “to set the record straight.”
See: Bretches v. Kirkland, U.S. District Court for the Northern District of California, C06-5277 JSW, Stipulation and Settlement Agreement, Jan. 20, 2012.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login