Prison Legal News v. Schwarzenegger, CA, Complaint, California DOC Censorship, 2007

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ROSEN, BIEN & GALVAN, LLP
Sanford Jay Rosen, Bar No. 62566
Meghan Lang, Bar No. 221156
Amy Whelan, Bar No. 215675
315 Montgomery Street, 10th Floor
San Francisco, California 94104
Telephone: (415) 433-6830
Facsimile: (415) 433-7104

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Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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ARNOLD SCHWARZENEGGER, in his official )
capacity as Governor of the State of California and)
in his individual capacity; JAMES E. TILTON, in )
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his official capacity as Secretary, California
Department of Corrections and Rehabilitation
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(CDCR) and in his individual capacity;
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KINGSTON W. PRUNTY, JR., and STEVE
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KESSLER, in their official capacities as
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Undersecretaries of the CDCR and in their
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individual capacities; SCOTT KERNAN, in his
official capacity as Chief Deputy Secretary,
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Division ofAdult Operations (CDCR), and in his )
individual capacity; LEA ANN CHRONES, in her)
official capacity as Director of Adult Institutions )
(CDCR) and in her individual capacity, and;
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MARISELA MONTES, in her official capacity as )
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the Chief Deputy Secretary, Division of Adult
Programs (CDCR) and in her individual capacity, )
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Defendants.
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PRISON LEGAL NEWS, a non-profit,
Washington charitable corporation,

Case No.

CO? - 02058~

COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF UNDER
THE CIVIL RIGHTS ACT, 42 U.S.C.
§1983 AND DAMAGES
DEMAND FOR JURY TRIAL

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COMPLAINT FOR DEC LARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 u.s. C. § 1983 AND DAMAGES

INTRODUCTION

Plaintiff, Prison Legal News ("PLN") brings this civil rights action pursuant to 42

U.S.C. § 1983 ("Section 1983") against Defendants to enjoin them from barring the receipt of the

publication "Prison Legal News" ("PLN") and other PLN publications by CDCR prisoner

subscribers. Plaintiff alleges that Defendants' actions violate its rights under the First and

Fourteenth Amendments to the United States Constitution, and seeks injunctive and declaratory

relief pursuant to 42 U.S.c. § 1983. Plaintiffalso seeks damages to be proven at trial as to

violations of clearly established rights.

JURISDICTION AND VENUE

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This lawsuit is brought pursuant to 42 U.S.C. Section 1983 against all Defendants for

actions under color of state law in violation of the First and Fourteenth Amendments to the United

States Constitution. Jurisdiction of this Court is invoked pursuant to 42 U.S.C. § 1983 and 28

U.S.c. §§ 1331, 1343(a)(3), in that this action is brought to redress deprivation, under color oflaw,

of rights secured by the Constitution of the United States. This Court has jurisdiction to grant

declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and is empowered to grant injunctive

relief pursuant to Fed. R. Civ. P. 65.

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substantial part of the events or omissions giving rise to Plaintiff s claims occurred in this district.

INTRADISTRICT ASSIGNMENT

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Venue is proper in this judicial district pursuant to 28 U.S.c. § 1391(b) because a

Pursuant to Civil L.R. 3-5, assignment to this division is proper because a substantial

part of the events or omissions giving rise to Plaintiffs claims occurred in the counties served by

this division.

THE PARTIES

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Plaintiff PRISON LEGAL NEWS ("PLN") is a non-profit, charitable Washington

corporation under IRS Code § 501(c)(3) with its office in Seattle, Washington. PLN publishes

"Prison Legal News," ("PLN") a monthly journal of prison news, court decisions and other

developments affecting the civil and human rights of prisoners. PLN also distributes prisoner-

oriented books. PLN has approximately 5,000 subscribers in all fifty states and abroad.
-1COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

Approximately eighty (80) percent of PLN subscribers are state and federal prisoners, including

many prisoners in the CDCR's custody. CDCR prisoners constitute approximately twenty (20)

percent ofPLN's prisoner subscribers.

The Defendants listed below are sued in their official capacities for equitable relief

only as to each and every violation of federal rights included in this complaint. Defendants are

sued in their individual capacities for damages only with respect only to violations offederal rights

that have been clearly established. To the extent that federal rights have not been clearly

established, Defendants are sued in their official capacities only and for equitable relief only.

Defendant ARNOLD SCHWARZENEGGER ("SCHWARZENEGGER") is the

Governor of the State of California, a position he has held since approximately November of 2003.

Defendant SCHWARZENEGGER has ultimate responsibility for the promulgation of CDCR

policies, procedures, and practices. As to all claims presented herein against him, Defendant

SCHWARZENEGGER is being sued in his individual capacity for damages associated with

clearly established federal rights, and in his official capacity for injunctive and declaratory relief.

At all relevant times, Defendant SCHWARZENEGGER has acted under color of state law.

Defendant JAMES E. TILTON ("TILTON") is the Secretary of the California

Department of Corrections and Rehabilitation ("CDCR"), a position he has held since

approximately September 2006. Defendant TILTON has ultimate responsibility for the

promulgation and implementation of CDCR policies, procedures, and practices and for the

managementof the CDCR. As to all claims presented herein against him, Defendant TIL TON is

being sued in his individual capacity for damages associated with clearly established federal rights,

and in his official capacity for injunctive and declaratory relief. At all relevant times, Defendant

TILTON has acted under color of state law.

Defendants KINGSTON W. PRUNTY, JR. ("PRUNTY") and STEVE KESSLER

("KESSLER") are the Undersecretaries of the CDCR. Defendants PRUNTY and KESSLER are

responsible for the promulgation and implementation of policies, procedures, and practices at the

CDCR. As to all claims presented herein against them, Defendants PRUNTY and KESSLER are

being sued in their individual capacities for damages associated with clearly established federal
-2COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 u.s.C. §1983 AND DAMAGES

rights, and in their official capacities for injunctive and declaratory relief. At all relevant times,

Defendants PRUNTY and KESSLER have acted under color of state law.

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Defendant SCOTT KERNAN ("KERNAN") is the Chief Deputy Secretary, Division

of Adult Operations of the CDCR. Defendant KERNAN is responsible for the promulgation and

implementation of policies, procedures, and practices at the CDCR. As to all claims presented

herein against him, Defendant KERNAN is being sued in his individual capacity for damages

associated with clearly established federal rights, and in his official capacity for injunctive and

declaratory relief. At all relevant times, Defendant KERNAN has acted under color of state law.

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Defendant LEA ANN CHRONES ("CHRONES") is the Director of Adult

Institutions of the CDCR. Defendant CHRONES is responsible for the promulgation and

implementation of policies, procedures, and practices at the CDCR. As to all claims presented

herein against her, Defendant CHRONES is being sued in her individual capacity for damages

associated with clearly established federal rights,· and in her official capacity for injunctive and

declaratory relief. At all relevant times, Defendant CHRONES has acted under color ofstate law.

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Defendant MARISELA MONTES ("MONTES") is the Chief Deputy Secretary,

Division of Adult Programs of the CDCR. Defendant MONTES is responsible for the

promulgation and implementation of policies, procedures, and practices at the CDCR. As to all

claims presented herein against her, Defendant MONTES is being sued in her individual capacity

for damages associated with clearly established federal rights, and in her official capacity for

injunctive and declaratory relief. At all relevant times, Defendant MONTES has acted under color

of state law.
FACTS

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13.

Plaintiff publishes a monthly magazine, "Prison Legal News," and also distributes

books and other materials pertaining to the legal rights of prisoners and the conditions affecting

them. PLN is comprised of writings from legal scholars, attorneys, inmates and news wire

services. Each issue of PLN contains articles on recent court decisions, as well as practical advice

for prisoners on how to litigate and otherwise protect their legal rights. PLN includes regular

columns designed to assist prisoners who are not represented by counsel, including "Habeas Hints"
-3COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

and "Pro Se Tips and Tactics." PLN consists of speech on matters of public concern and is thus

entitled to the highest degree of protection under the First Amendment.

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PLN has approximately 5,000 subscribers in all fifty states and abroad.

Approximately eighty (80) percent of PLN subscribers are state and federal prisoners, including

prisoners in the CDCR custody. CDCR prisoners constitute approximately twenty (20) percent of

PLN's prisoner subscribers. The purpose ofPLN, as stated in its Articles of Incorporation, Article

III, Part 6 is "to educate prisoners and the public about the destructive nature of racism, sexism,

and the economic and socialcosts of prisons to society."

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PLN contains content that is of particular interest to prisoners who are in disciplinary

segregation, including reports of court decisions on the rights of prisoners in disciplinary

proceedings. For example, the December 2004 issue ofPLN included an article on Piggie v.

Cotton, 344 F.3d 674 (7th Cir. 2003), holding that a prisoner facing disciplinary proceedings is

entitled to disclosure of exculpatory evidence.

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ptN consists of speech on matters of public concern, and is thus entitled to the

highest degree of protection under the First Amendment.
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PLN currently has, and at all relevanttimes has had, numerous paid subscribers who

are prisoners in the custody of the CDCR. By paying for their subscriptions, these prisoners have

expressed their desire to receive Plaintiffs legal journal.

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Until approximately January of2003, CDCR prisoners who subscribed to PLN or

ordered other publications from PLN received those publications without incident.
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In approximately January 2003, Defendants began refusing delivery ofPLN and

PLN's publications to inmate subscribers in the custody ofCDCR (hereinafter, the "censorship

policies"). CDCR institutions invoked censorship policies for a variety of reasons, all of which

violate PLN's Constitutional rights. Several institutions refused to deliver PLN to inmate

subscribers because they lacked the appropriate labels or because PLN was not an "approved

vendor" ofthe institutions. Other institutions refused to deliver PLN because the recipients were

housed in Reception Centers or Administrative Segregation units. Other institutions refused to

deliver hardcover books distributed by PLN due to hardcover bans in individual institutions. Still
-4COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.C. §1983 AND DAMAGES

other institutions refused to allow gift or donated subscriptions to CDCR inmates or refused

publications that exceeded two pounds in weight. Other institutions designated books and

periodicals as "special purchases" meaning that inmates could order them only on a quarterly 'basis.

Other institutions destroyed standard mail sent by PLN to its subscribers when the mail was not

deliverable to the addressee rather than return that mail to PLN or to the Post Office.

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Plaintiff is informed and believes, and thereon alleges, that at least twenty two (22)

CDCR institutions prohibit inmates from possessing, ordering, and/or receiving hardcover

publications, although there are obvious less restrictive means to achieve any legitimate

penalogical goal concerning prisoners' receipt or possession of hard cover books.

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There is no limit to how long a CDCR prisoner may be confined in Administrative

Segregation ("Ad Seg"). Some CDCR prisoners are confined in Ad Seg for many months or even

years. Similarly, prisoners can be housed in reception centers ("RC's") for many months or even

years.

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Since the censorship policies were implemented, PLN has received numerous

complaints from subscribers whose access to the subscriptions for which they have paid has been

blocked, or imminently will be blocked, pursuant to the censorship policies. Some CDCR

prisoners have expressed their intention not to subscribe or not to renew their current subscriptions

because of the censorship policies. Inmates also refuse to order other publications distributed by

PLN because they know that the prisons will ban them pursuant to censorship policies.

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On November 18,2003, the United States Court of Appeals for the Ninth Circuit

upheld the District Court's decision that a vendor label policy at Pelican Bay State Prison

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Corrections, et al. (9th Cir, 2003) 350 F.3d 917. The prison required that books and magazines

mailed to the prison have approved vendor labels affixed to them. Due to other protections in

place regarding contraband and security, the District Court and Ninth Circuit held that such a

policy was not rationally related to the prison's asserted interest in security and issued a permanent

injunction prohibiting state officials at PBSP from enforcing the policy. Plaintiff is informed and

believes, and thereon alleges, that at least three CDCR institutions still require that PLN books and
-5COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

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periodicals be mailed with approved vendor labels affixed to them.
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At various times,PLN and others have contacted the CDCR or particular institutions

regarding the unlawful censorship policies. For example, on April 3, 2003, the Prison Law Office

wrote a letter to Edward Alameida, the Director of CDCR (then "CDC") at that time. The letter

documented the practice by two CDCR institutions of denying books to prisoners housed in Ad

Seg units and RC's. For example, California Institution for Men ("CIM") refused to forward a law

dictionary and legal research book ordered from PLN to an inmate housed in the reception center

segregation unit. CIM staff returned the book to PLN with a notice stating "books not allowed

where inmate is housed." Plaintiffis informed and believes, and thereon alleges, that at least

thirteen (13) CDCR institutions impermissibly prohibit inmates in Ad Seg and/or RC's from

possessing, ordering, and/or receiving books, magazines and other publications.

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On March 19, 2004, PLN wrote to Jeanne Woodford, the Director ofCDCR at that

time. PLN complained that CDCR institutions failed to deliver PLN to inmates housed in Ad Seg

and failed to deliver PLN publications because PLN failed to utilize special labels required by the

prisons. PLN received only a cursory response to those concerns from a Facility Captain atthe

Institutions Division.

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On March 8, 2005, PLN wrote a letter to California State Prison, Los Angeles

County ("LAC") attempting to get on the "approved vendor" list of thatprison so that it could send

PLN publications to inmates housed at LAC. LAC never responded to that letter.

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On September 19, 2005, counsel for PLN sent yet another demand letter to CDCR

personnel, including Defendants named in this complaint. That letter outlined the various

censorship policies at CDCR institutions and demanded that the violations cease.

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Defendants have never provided PlaintiffPLN with notice that itsjournal or books

mailed to its subscribers in the CDCR have been withheld from those subscribers, nor any

opportunity to be heard. On information and belief, some issues of PLN that were sent to

subscribers in the CDCR have been forwarded to unknown destinations or destroyed by

Defendants without any notice to Plaintiff. CDCR institutions do not have uniform, or perhaps

any, procedures in place to notify publishers and distributors of the institutions' refusal to deliver
-6COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

publication to prisoners, nor do they have sufficient, or perhaps any, procedures in place that would

allow publishers and distributors to appeal such refusals.

29.

Defendants'vendor approval processes are arbitrary, ill-defined and haphazard.

Defendants have not promulgated a standardized means, mechanism or set of criteria for approving

book and magazine vendors atCDCR institutions. Many of the individual institutions appear to

have no vendor-approval processes at all while others implement unaccountable, discretionary

review without discernible guidelines. Where vendor approval procedures exist, there are no

uniform, or perhaps any procedures to notify or inform vendors of their requirements, no uniform,

or perhaps any procedures to notify or inform vendors of a timeframe within which a decision will

be made, and no uniform, or perhaps any procedures to notify or inform vendors how to appeal a

denial of approved vendor status. For instance, someCDCR institutions have apparently instituted

arbitrary approval processes that must go through prison chaplains with no apparent appeal

procedure. Despite many requests by the PLN regarding the vendor-approval processes in

individual institutions, Defendants have refused to provide Plaintiff with notice of the vendor-

approval processes and have failed to implement procedural safeguards regarding approved

vendors, including the opportunity to challenge denial of approved vendor status.

30.

PlaintiffPLN has an interest, protected by the First and Fourteenth Amendments, in

communicating with CDCR prisoners who have subscribed to its journal. Plaintiff has been

harmed and continues to be harmed by Defendants' interference with that communication.

Plaintiff has also been harmed and continues to be harmed by the loss of revenue as CDCR

prisoners are deterred and prevented from subscribing to PLN.

31.

Defendants continue to enforce the censorship policies as of the date of this

Complaint. Plaintiff PLN is suffering irreparable harm as a result of Defendants' ongoing

violations of its Constitutional rights, and therefore Plaintiff has no adequate remedy at law. These

violations are continuing and will continue until enjoined by this Court.

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-7COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42

u.s.c. §1983 AND DAMAGES

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

(For Violations of the First Amendment Under Color Of State Law; Section 1983)

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32.

Plaintiff realleges and incorporates herein by reference each of the allegations

contained in the preceding paragraphs of this Complaint.
33.

The censorship policies violate Plaintiffs right to freedom of expression as

guaranteed by the First Amendment to the United States Constitution, made applicable to the states

by the Fourteenth Amendment to the United States Constitution.

34.

As a direct and proximate result of Defendants' conduct in violation of Plaintiffs

First Amendment rights as set forth above, Plaintiff has suffered, and continues to suffer, lost

business income, lost business good will and emotional distress.

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35.

Defendants' actions and inactions are motivated by evil motive and intent and are

committed with reckless and callous indifference to Plaintiffs federally protected rights.
WHEREFORE, Plaintiff prays for: (a) judgment declaring that the acts, conduct and

omissions of Defendants violate the First Amendment to the United States Constitution; (b) an

order enjoining Defendants and their employees, agents, and any and all persons acting in concert

with them from further violation of Plaintiffs First Amendment rights; (c) damages against

Defendants subject to proof at trial; (d) an order awarding Plaintiffs reasonable attorney' fees,

litigation expenses, and costs pursuant to 42 U.S.C. § 1988 and any other applicable law.

SECOND CLAIM FOR RELIEF

(For Violations of Fourteenth Amendment Due Process Clause Under Color Of State Law;
Section 1983)

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Plaintiffrealleges and incorporates herein by reference each of the allegations

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contained in the preceding paragraphs of this Complaint.
37.

By failing to give Plaintiff notice of the censorship of its publications, and an

opportunity to be heard with respect to that censorship, Defendants have deprived and continue to
deprive Plaintiff ofliberty and property without due process oflaw, in violation of the Fourteenth

Amendment to the United States Constitution.
-8COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. § 1983 AND DAMAGES

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38.

Defendants' actions and inactions are motivated by evil motive and intent and are

committed with reckless and callous indifference to Plaintiffs federally protected rights.
WHEREFORE, Plaintiff prays for: (a) judgment declaring that the acts, conduct and

omissions of Defendants violate the First Amendment and Fourteenth Amendment due process

clause; (b) an order enjoining Defendants and their employees, agents, and any and all persons

acting in concert with them from further violation of Plaintiffs First Amendment and Fourteenth

Amendment due process rights; (c) damages against Defendants subject to proof at trial; (d) an

order awarding Plaintiffs reasonable attorneys' fees,

U.S.c.§ 1988 and any other applicable law.

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litiga~ion

expenses and costs pursuant to 42

PRAYER FOR RELIEF
The conduct previously alleged, unless and until enjoined by order of this Court, will cause

great and irreparable injury to Plaintiff. Further, a judicial declaration is necessary and appropriate

at this time so that all parties may know their respective rights and act accordingly.

WHEREFORE, Plaintiffprays for judgment as follows:

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A declaration that Defendants' actions, described herein, violate the First and

Fourteenth Amendments to the United States Constitution;
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An order enjoining all Defendants and their employees, agents, and any and all

persons acting in concert with them from further violation of Plaintiff s civil rights under the First

and Fourteenth Amendments to the United States Constitution;

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An order awarding actual damages in an amount to be proven at trial for violations of

federally protected rights that have been clearly established;
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An order awarding punitive damages in an amount to be proven at trial for violations

of federally protected rights that have been clearly established;
5.

An order awarding Plaintiff s reasonable attorneys' fees, litigation expenses and

costs pursuant to 42 U.S.C. § 1988 and any other applicable law;

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-9COMPLAINT FOR DECLARA TORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.C. § 1983 AND DAMAGES

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An order awarding such other and further relief as the Court deems just and proper.
Respectfully submitted,

Dated: April 12, 2007 .

ROSEN, BIEN & GALV

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DEMAND FOR JURY TRIAL
Plaintiff hereby demands a jury trial.

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Dated: April 12, 2007
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Respectfully submitted,
ROSEN, BIEN & GALVAN, LLP

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-10COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT,

42 U.S.c. §1983 AND DAMAGES