HRDC v. Union County, AR, censorship, Complaint, 2017
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Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 1 of 12 PageID #: 2 FILED US DISTRICT COURT WESTERN DISTRICT OF ARKANSAS Oct 30, 2017 OFFICE OF THE CLERK Case 1:17-cv-01064-SOH Document 1 II. 3. Filed 10/30/17 Page 2 of 12 PageID #: 3 JURISDICTION AND VENUE This action is brought pursuant to 28 U.S.C. § 1331 (federal question), as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §1343 (civil rights), as this action seeks redress for civil rights violations under 42U.S.C.§1983. 4. Venue is proper under 28 U.S.C. §1391(b). On information and belief, at least one Defendant resides within this judicial district, and the events giving rise to the claims asserted herein occurred within this judicial district. 5. Plaintiff's claims for relief are predicated upon 42 U.S.C. §1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to the Plaintiff by the First and Fourteenth Amendments to the U.S. Constitution and laws of the United States. 6. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as nominal and compensatory damages, against all Defendants. 7. Plaintiff's claim for attorneys' fees and costs is predicated upon 42 U.S.C. §1988, which authorizes the award of attorneys' fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. §1983. 8. Plaintiff is informed, believes, and therefore alleges that in engaging in the conduct alleged herein, Defendants acted with the intent to injure, vex, annoy, and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs rights with the intention of causing Plaintiff injury and depriving it of its constitutional rights. 9. As a result of the forgoing, Plaintiff seeks compensatory and punitive damages against the individual Defendants. 2 Case 1:17-cv-01064-SOH Document 1 Ill. 10. Filed 10/30/17 Page 3 of 12 PageID #: 4 PARTIES The Human Rights Defense Center is a not-for-profit chruitable organization recognized under §501 (c)(3) ofthe Internal Revenue Code, incorporated in the state of Washington and with principal offices in Lake Worth, Florida. PLN is a wholly-owned project and the publishing arm of HRDC. The purpose of HRDC, as stated in its Articles of Incorporation, is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society. HRDC, through its publishing project, engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, prisoner health and safety, and prisoners' rights. Plaintiff's publications contain political speech and social commentary, which are core First Amendment rights and are entitled to the highest protection afforded by the U.S. Constitution. For more than 26 years, the focus of HRDC's mission has been public education, advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal redress for infringements of their constitutionally-guaranteed and other basic human rights. HRDC's mission, if realized, has a salutary effect on public safety. 11. Defendant Union County, Arkansas (the "County") is a unit of government organized and existing under the laws of the State of Arkansas. The County operates the UCDC, and is and was responsible for adopting and implementing mail policies governing incoming mail for prisoners at that facility. 12. Defendant Ricky Roberts is the Sheriff of Union County, Arkansas. Defendant Roberts is employed by and is an agent of the County. He is responsible for overseeing the management and operations of the UCDC, and for the hiring, screening, training, retention, supervision, discipline, counseling, and control of the personnel of the UCDC who interpret and 3 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 4 of 12 PageID #: 5 apply the mail policy for prisoners. As Sheriff, Defendant Roberts is a final policymaker with respect to the operations of the UCDC, including for policies governing incoming mail for prisoners. He is sued in his individual and official capacities. 13. Defendant Richard Mitcham is a Captain in the Union County Sheriffs Office, and is the Jail Administrator for the UCDC. Defendant Mitcham is employed by and is an agent of the County. He is responsible for overseeing the day to day management and operations ofthe UCDC, and for the hiring, screening, training, retention, supervision, discipline, counseling, and control of the personnel of the UCDC who interpret and apply the mail policy for prisoners. He is sued in his individual and official capacities. 14. Defendant Paul Kugler is a Lieutenant in the Union County Sheriffs Office, and is the Assistant Jail Administrator for the UCDC. Defendant Kugler is employed by and is an agent of the County. He is responsible for overseeing the day to day management and operations of the UCDC, and for the hiring, screening, training, retention, supervision, discipline, counseling, and control of the personnel of the UCDC who interpret and apply the mail policy for prisoners. He is sued in his individual and official capacities. 15. The true names and identities of Defendants DOES 1 through 10 are presently unknown to HRDC. Each of Defendants DOES 1 through 10 are or were employed by and are or were agents of Defendant County when some or all of the challenged prisoner mail policies and practices at the jail facilities were adopted and/or implemented. Each of Defendants DOES 1 tlu·ough 10 are or were personally involved in the adoption and/or implementation of the UCDC's mail policies for prisoners, and/or are or were responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or control of the UCDC staff who interpret and implement these prisoner mail policies. They are sued in their individual and official capacities. 4 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 5 of 12 PageID #: 6 HRDC will seek to amend this Complaint as soon as the true names and identities of Defendants DOES 1 through 10 have been ascertained. 16. At all times material to this action, the actions of all Defendants as alleged herein were taken under the authority and color of state law. IV. FACTUAL ALLEGATIONS A. HRDC's Mission and Outreach to the UCDC 17. HRDC, through its publication project, PLN, publishes and distributes an eponymously-named soft cover monthly magazine titled Prison Legal News: Dedicated to Protecting Human Rights, which contains news and analysis about prisons, jails and other detention facilities, prisoners' rights, court opinions, current events, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals. The monthly magazine is published on newsprint and is 72-pages long. 18. Prison Legal News has thousands of subscribers in the United States and abroad, including prisoners, attorneys, journalists, public libraries, judges, and members of the general public. HRDC distributes Prison Legal News to prisoners in approximately 2,600 correctional facilities across the United States, including death row units and institutions within the Federal Bureau of Prisons, such as the federal Administrative Maximum Facility ("ADX" or "Supermax") at Florence, Colorado - the most secure prison in the United States. Prison Legal News is distributed to prisons and jails within the correctional systems of all 50 states, including to dozens of prisoners housed in facilities in the State of Arkansas. 19. HRDC, through its publication project, PLN, also publishes and/or distributes approximately fifty different softcover books about the criminal justice system, legal reference books, and self-help books of interest to prisoners. These books are designed to foster a better 5 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 6 of 12 PageID #: 7 understanding of criminal justice policies and to allow prisoners to educate themselves about related issues, such as legal research, how to write a business letter, health care issues, and similar topics. Pertinent to this case, HRDC publishes and distributes The Habeas Citebook: Ineffective Assistance of Counsel ("Habeas Citebook"), which describes the procedural and substantive complexities of federal habeas corpus litigation with the goal of identifying and litigating claims involving ineffective assistance of counsel. 20. In addition to monthly magazine issues and books, HRDC also sends prisoners: (a) informational brochure packets - the packet contains a brochure and subscription order form, a book list, and a published books brochure (each of which is a single page); and (b) copies of judicial opinions of import to prisoners. 21. The UCDC is located in El Dorado and holds nearly 200 prisoners. A substantial number of the prisoners within the detention center have yet to stand trial or be sentenced for a crime. B. Defendants' Unconstitutional Policies and Practices 22. Defendants' mail policy requires all mail sent to prisoners be in the form of a postcard, effectively banning all enveloped corTespondence, books and magazines sent by HRDC and others to prisoners at the UCDC. 23. According to Defendants' mail policy as stated on their website, prisoners at the UCDC "may only receive 3x5 or 4x6 postcards as incoming mail." The policy further states that "[l]etters made out to inmates will not be opened and will be returned to sender." 24. Consequently, Defendants have censored the following materials sent by HRDC to prisoners held in the UCDC: (1) sample issues of Prison Legal News; (2) the Habeas Citebook; (3) informational brochure packets; and (4) court opinions. Defendants refused to deliver said 6 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 7 of 12 PageID #: 8 items to the intended prisoner-recipients, and, in many instances, returned items to HRDC's office via the "Return To Sender" service of the United States Postal Service. Some of these items were marked with the notation: "Union County Sheriffs Dept. Retwn to Sender Reason: Post Cards Only" 25. Altogether, since June 2017, HRDC can identify at least fifty-three (53) items of mail sent by HRDC to prisoners held in the UCDC which were censored by Defendants. This includes thirteen (13) issues of Prison Legal News, twelve (12) copies of the Habeas Citebook, fourteen (14) informational packets, and fourteen (14) court opinions. 26. In all ofthe above instances of censorship ofHRDC's communications, Defendants failed to explain the penological justification for their censorship decisions and otherwise failed to give meaningful notice of the censorship, violating HRDC's Fourteenth Amendment rights. 27. Defendants further failed to provide an opportunity for HRDC to challenge the censorship of its mail, also in violation ofHRDC's Fourteenth Amendment rights. 28. Defendants' policies, practices, and customs are unconstitutional both facially and as applied to HRDC. Such restrictions on written speech sent to prisoners at the UCDC are not rationally related to any legitimate penological interest and violate HRDC's First Amendment right to communicate its speech with prisoners. 29. Defendants' censorship policies, practices, and customs have a chilling effect on HRDC's future speech and expression directed toward prisoners held in the UCDC. 30. HRDC will continue to mail copies of its books, magazines and enveloped correspondence to subscribers, customers, and other individuals imprisoned at the UCDC, but 7 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 8 of 12 PageID #: 9 seeks the protection of this Court to ensure that the materials are delivered and, if not, that due process is afforded to the HRDC so it may challenge the basis for any censorship. Defendants' Unconstitutional Mail Policies and Practices are Causing HRDC Ongoing Harm 31. Due to Defendants' actions described above, HRDC has suffered damages, and will continue to suffer damages, including, but not limited to: the violation of the HRDC's constitutional rights; the impediment of HRDC's ability to disseminate its political message; frustration of HRDC' s non-profit organizational mission; diversion of resources; loss of potential subscribers and customers; an inability to recruit new subscribers and supporters; the loss of reputation; and the costs of printing, handling, mailing, and staff time. 32. Defendants' actions and inactions were and are motivated by ill motive and intent, and were and are all committed under color of law and with reckless indifference to HRDC's rights. 33. Defendants, and their agents, are responsible for or personally participated in creating and implementing these unconstitutional policies, practices, and customs, or for ratifying or adopting them. Further, Defendants are responsible for training and supervising the staff persons whose conduct has injured and continues to injure HRDC. 34. Defendants' unconstitutional policy, practices, and customs are ongoing, continue to violate HRDC's rights, and are the moving force behind the constitutional violations. Defendants' unconstitutional policy, practices, and customs will continue unless enjoined. As such, HRDC has no adequate remedy at law. 35. HRDC is entitled to injunctive relief prohibiting Defendants from refusing to deliver its monthly magazine Prison Legal News, books, informational brochure packets, and court 8 Case 1:17-cv-01064-SOH Document 1 Filed 10/30/17 Page 9 of 12 PageID #: 10 opinions without any legal justification, and prohibiting Defendants from censoring mail without due process of law. V. CLAIMS A. Count 1-42 U.S.C. §1983 Violation of the First Amendment 36. HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 35 of the Complaint as if fully set forth herein. 37. The acts described above constitute violations of HRDC's rights, the rights of other correspondents who have attempted to or intend to correspond with prisoners held in the UCDC, and the rights of prisoners confined at the U CDC, under the First Amendment of the United States Constitution. 38. HRDC has a constitutionally protected liberty interest in communicating with incarcerated individuals by sending books, magazines, information packets, and court opinions to them via U.S. Mail, a right clearly established under existing case law. 39. The conduct of Defendants was objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others. 40. HRDC's injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, and those policies were the moving force behind the violations. 41. The acts described above have caused damages to HRDC, and if not enjoined, will continue to cause damage to HRDC. 9 Case 1:17-cv-01064-SOH Document 1 42. Filed 10/30/17 Page 10 of 12 PageID #: 11 HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC further seeks punitive damages against the individual Defendants in their individual capacities. B. Count II-42 U.S.C. §1983 Violation of the Fourteenth Amendment 43. HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 42 of the Complaint as if fully set forth herein. 44. The acts described above constitute violations of HRDC's rights, the rights of other correspondents who have attempted to or intend to correspond with prisoners held in the UCDC, and the rights of prisoners confined at the UCDC, under the Fourteenth Amendment of the United States Constitution. 45. HRDC has a right under the Due Process Clause of the Fourteenth Amendment to receive notice and an opportunity to object and/or appeal Defendants' decisions to prevent HRDC's mail from reaching prisoners held in the UCDC. 46. Defendants' policy and practice of censoring HRDC's books, magazines, information packets, and court opinions fails to provide HRDC with individualized notice of the censorship or an opportunity to be heard. 47. The conduct of Defendants was objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others. 48. HRDC's injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, and which were the moving force behind the same. 10 Case 1:17-cv-01064-SOH Document 1 49. Filed 10/30/17 Page 11 of 12 PageID #: 12 The acts described above have caused damages to HRDC, and if not enjoined, will continue to cause damage to HRDC. 50. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC further seeks punitive damages against the individual Defendants in their individual capacities. VI. REQUEST FOR RELIEF WHEREFORE, the Plaintiff respectfully requests relief as follows: 1. A declaration that Defendants' policies and practices of limiting correspondence to postcards only, and effectively banning the delivery of books, magazines, and enveloped correspondence to prisoners violates the First Amendment to the U.S. Constitution; 2. A declaration that Defendants' policies and practices of denying due process notice and an opportunity to appeal any censorship decisions violates the Fourteenth Amendment to the U.S. Constitution. 3. A preliminary and permanent injunction preventing Defendants from continuing to violate the Constitution as provided herein , and providing other equitable relief; 4. Nominal damages for each violation ofHRDC's rights by the Defendants; 5. Compensatory damages in an amount to be proved at trial; 6. Punitive damages against the individual Defendants in an amount to be proved at trial; 7. Costs, including reasonable attorneys' fees, under 42 U.S.C. §1988 and under other applicable law; and 11 Case 1:17-cv-01064-SOH Document 1 8. Filed 10/30/17 Page 12 of 12 PageID #: 13 Any other such relief that this Court deems just and equitable. VII. JURY DEMAND Plaintiff, the Human Rights Defense Center, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable. Dated: October 27, 20 17 Respectfully submitted, es, Ark. Bar No. 83091 es, arter & Priebe, LLP 500 oadway, Suite 400 Little Rock, AR 72201 Telephone: (501) 372-1414 Facsimile: (501) 372-1659 email@example.com Bruce E.H. Johnson, Wa. Bar No. 7667* Davis Wright Tremaine LLP 1201 Third Avenue, Suite 220 Seattle, WA 98101 Telephone: (206) 757-8069 Facsimile: (206) 757-7069 firstname.lastname@example.org Sabarish Neelakanta, Fla. Bar #26623* sneelakanta@Ju·dc-law.org Masimba Mutamba, Fla. Bar #102772* email@example.com Daniel Marshall, Fla. Bar # 617210* dmarshall@Ju·dc-law.org HUMAN RJGHTS DEFENSE CENTER P.O. Box 1151 Lake Worth, FL 33460 Telephone: (561) 360-2523 Facsimile: (866) 735-7136 Attorneys for Plaintiff *Pro hac vice applications to be filed 12