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Prison Legal News v. Cook, Complaint, Oregon DOC Censorship 1998

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ALISON HARDY , O SB 11 9 8060
Oregon Law Center
813 SW Alder Street
Portland, OR 91205
Tel. (503) 295-2760
FAX (503) 295-0676
MARC BLAC KMA.. l, OSB 1173033
Ransom Blackman
100 1 Fifth Avenue, Suite 1400
Portland, OR 97204
Te L (S03) 228-0487
FAX (S03) 227-5984

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Attorneys for Plaintiffs




A:-''O I:-.iJU:-':CTIVE RELIEF A\'1 )


(Civil RIghts)
DAVID S. COOK, Director of the Oregon
Departm ent of Corrections, DAVID
SCHIDfAC HER , Rules/Compliance Manager
ofme Oregon Depanment of Corrections, and
JA!'<'"E A>-ID JOH:-.i DOES 1- 10 , officers and
agents of the Oregon Department of
Corr ections,





OOROD! raiD'\{

I. The Oregon Department ot Correcncns censors certain subscriptio n publications. not
because their content represents a danger to security, but because: they are sen t via "standard"
mail. i.e.• the class of mail availab le 10 non -profit orgarW.atiOIlS . Because of this po licy. nonprofit organizations that publish scbscription n~slcttcn., inc luding Plaintiffs Prison Leg~ S ews
and Coalition for Prisoners' Rights. have been prevented from sending their pub lications 10

Oregon state prisoners subscribers. Plaintiffs Mark Wilson.


Tucker and Lc Hung ha\'e

been denied the oppommity to receive publications from the plaintiff-publishers and from the

Internationa l Prison Ministry.
2. Defendants' policy of censoring mail based upon the class of mai l used to send it
serves no legitimate penological purpose. Publisher plaintiffs Prison La..... News and the
Coalition for Prisoners' Rights, and the prisoner plaintiffs, Michael Tucker, Mark Wilson and Lc
Hung seck declara tory and injunctive relief and damages to enforce their First Amendm~ont rights
to send and receive information and ideas .

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3. This is a ci\il action see king declaratory and injuncti\ e relief and damag es is brought
pursu.ant to 42 USC section 1983. in that plaintiffs have and continue to be deprived o ftllci r
rights secured by the United States Constitulion under the First and Fourteenth Amendmen ts.
4. The jurisdiction of this cour1 is invoked pursuant to 28 esc section 1331 and
J)43(a)(3 ). Plaintiffs seek declaratory relief under 28 U.S.c.. section 2201 and injuRCth 'e relief
under 28 V.S.C. section 1343 .



5. Venue is proper under 28 USC section 139 1(b), in that one or more of tbe de fendants
reside in the District of Oregon, and plaintiffs' claims for reli ef arose in this district.
6. PlaintiITPrisoner' s Lega l News, a non- profit Washington corporation with office. in

Seattle, publishes and distributes nation-wide a monthly magazine known as Prison Legal News

7. Plaintiff Coalition for Prisoners ' Righ ts ('·CPR''), a non-profit New Mexico

corpor ation with offices in Santa Fe, publishes and distributes nation-wide a mon thly newsletter

8. Plainti ff Mark J Wilson, is a prisoner committed to the legal and physical cus tody of
the O regon Department o f Corre ctions ("ODOe) He is presently confined at the Oregon State
Penitenti ary (" a SP) ..

9. Plaintiff Michael Tucker is a prisoners com mitted to the legal and physical custody o f
the O DOe. He


presen tly confined at the OSP.

10. PlaintiffLe Hung is a prisoner committed to the legal and phys ical custody of the
ODOC . He is presently confined at the OSP .
11. Defendant David S. Cook is the Director of the eDOC with responsibility for final
review and appro val of department rules concerning inmate mail. Defendant Cook also has
supervisory responsibility for the operation, rules and adminis tration of the department and its
facilities. ORS 423 .075(1 ) and ( 5). See also ORS 423 .020 and 423.030. He is sued in his
individual and official capacities .
12. Defendant Da vid Schumacher is the Rules/Compl ian ce Manager for the ODO C. Mr.
Schumacher is an agent of Defendant Cook. He




sued in his indiv idual and official capacities.

13. Defendants John and Jane Does I - X are officers and agents of the ODOe. The;r full
and correct names are unknown to plaintiffs at this time. When plaintiffs discover the full, true
and correct nameS of these defendants, plaintiffs will amend thetr comp laint in this action, These
defendants and each of them are involved in the receipt and processing of bulk-rate mail at the
Oregon State Penitentiary ("O SP") sent by plaintiffs PLN and CPR and to be received by
plaintiffs Tucker, Wilson, Le and other inmates of the ODOC. They enforce the bulk-rate policy
on a day-to-day basis at the a SP . They are sued in their official and individual capacities.
14. Defendants have acted, and continue to act, lInder color of state law at all times
relev ant to this complai nt.

RegllM jons and Proccdm cs Restrict jng thc Receipt ofPJlbl jcations

15, Defendants and their officers and agents in contro l of the asp and ODOC have
enacted and arc enforcing rules and regulations governing distribution of and access to certain
16. OAR 291-131-0025(6) provides: "Mai l shall be required to be sent by first or second
class postage. Bulk rate, third and fourth class mail is proh ibIted." (As of December I, 1998,
this section will be amended to read: "Mail shall be sent by express mail, priority mail, first class
mail or periodicals mail (ava ilable for authonzed pllblications only). All other forms of US
Postal Service mail shall be prohib ited."]
17. OAR 291-131-0037(4) provides: ··Bulk rate, third and fourth class mail shall be
refused and returned to the U.S. Postal Service:" (As of December I, 1998, this secllOn will be



ame nded to read: " Mail with un authorized or insuffic ient postage shall be re fused and (e!Urned to
the US Postal Service.")
18. T hird class non -profi t mail is no w called " standard mail" by the Unite d State s Postal
19. ODOC inmates are nOI given noti ce when bu lk rate , third class and fourth class mail
are refused.

The App lic at io n n i lbe Procedures [0 the pla jntiffs
plain t jffs Coa lit jon for Prison ers ' Rights and M jch ae l Tucker

20. Plaintiff Coalition for Pri soners Rights p llbhshes a monthly eight page newsletter

that covers news o f recent court rulings as well as brief news articles on subjects of interesl to
prisoners and their families . CPR has been publishi ng and distributing their newslener smee
1977 and curren tly has 3500 subscribers throughout the co untry. Th e newsletter has no pai d staff
and is produce sole ly by vo lunteers.
21. As a non-profi t organizat ion, CPR has been granted IRS secli on 50 1(c)(3) status by
the Internal Revenue Service. Based in part upon tha t st atus , CP R has been au tho rized by the
Uni ted States Postal Service 10 sen d pub licat ions by mall under a spec ial mailing status for non pro fit orgamzations tha t is subsidized by the federal government. That special mailing rate was

formerly referred to by the Unite d States Po stal Service as " third" or "fourt h" class mai l; that
mailing rate or cl ass is often referred to by the pub lic as "bu lk-rate" mai l.
22. Each issues of the CPR news letter sent to prison subscri bers is addres sed individually
to the inmate subscriber and includes the inmate's proper address, com m itted name and state
ident ification number.



23. C PR uses its bulk m ailing permit to mai l subscnption newsletter to state prisoners
around the country. CPR has in the pas t accommodated Oregon state prisoners by send ing their
newsletters via first class ma il. However, in 1998, CPR determined that it could no longer afford
to conti nue this pr act ice, and it has sinc e stopped sendin g the news letter direc tly to Oregon slate
24. In Febru ary , 1998 , plaintiff Michael Tucker received notice from plaintiff CP R thai
CPR would no longer be able to send him the CPR newsletter because the newsletter could no
longer afford to send via first class m ail. Since then, plainti ff has not received his CPR
25. Before CPR discontinued its first class maili ngs 10 Oregon priso ners due to
defendants " mai l po licy, CPR had approximately 80 subsc ribers in ODOC prisons.
Plajn tjffs Prisoo [e gal News aud.Mark Wilson
26 . Plaintiff PLN publishes and distribut es a mon thly m agazme which contains news
articles and other materials of interest to inmate s and correctional officia ls with regar d to
litigation affecti ng inmates. PLN has been di strib uting its magazi ne for more th an mne years .
27. PLN reports on developments in prisoner legal actions across the countries and
includes articles co ncern ing issues of interest to prisoners.

28. As a non-profit organization , PLN has also been granted IRS section 50 1(c)(3) stalus
by the Internal Revenue Service. Based in part upon that sta tus, PLN has been authorized by the
United States Po sta l Service to send publications by stand ard mail.



19. Eac h issu e of the PLN tha t is sent to prisoner subscribers is addressed individually to
the inmate subscriber and includes their proper addres s, committed name and State Iden tlficatlO n
number (SID) .
30. PLN's bulk mailing contractor complies with postal serv ice regu lations to send the
publication 10 its subscribers.
31. On September 24, 1998 PLN had the ir October issue sent from their bulk mai hn g
service in Be llmawr, New Je rsey.
32. Plain titT Wi lson is a current subsc riber to P LN. He did not receive his Oc tober, 1998
edition of PLN. Wilson did not receive notice that his news letter had been w ithhel d from him .
33_ Several editions ofP LN have been retu rned from Oregon sta te prisons to Pc-,,'s
office in Washington . Plaintiff Wilson's was not am ong them.
PloinlilII e H lmg
34. Plaimiff' Le H U req ues led religious material from International Prison Ministry
(IPM). IPM pub lishes and distributes Bibles to prisoners who request them .
35. On August II, 1998, Mr. Hung received a leiter from IP\-f notifying him that, in
order to.maintain their ab ility to disseminate their materials wid ely, IPM must send their
publications using the subsi dized bulk rate for non-pro fit orgallizations . IPM indicated they
wou ld not be able to fulfil l Mr. Hung's request because of O OOC's ban on third class mail.
36. Mr. Hung submitted a grievance asking w heth er asp woul d censor his ma il based
upo n the fact thaI IPM used third class ma il.
37. On August 28, 1998 Mr. Hung received a response confirming that his Bible wou ld
be delivered on ly if it was sent via first or second cl ass mall .



C al rS FS OF ACUO'S'

First Claim for Relief
38. Plaintiffs reallege paragraphs 1 thro ugh 37.

39 . Defendants' bulk-rate policy violates the free expression rights of the plaintiffs
protected by the First Amendment of the United Slates Co nstitution and Article I, Sec tion 8 of

the Oregon Constitution.
Second O aim for Reli ef

40. Plaintiffs reallege parngraphs I through 37.
41. Defendants, pursu ant to thei r bulk-rate policy, have deprived plaintiffs Wilson,
Tuc ker and Hung o f property witho ut d uc process through defendants ' summary rejection of the
publications sent to tho se plaintiffs at their request, with out notice to the inmate pla intiffs.
42 . Defendants" bul k-rate policy vio lates the due process protections afforded the
plaintiffs by the Fourteenth Amendm ent of the United States Constitution and Article I, SL'Ction
10 oflhe Oregon Con stitut ion.


Plai ntiffs have suffered. are suffering and wi ll continue to suffer harm as a result o f

defendants' enforeement o f defendants' bulk-rate policy.
Ikm~ nd

for Relief

44 . W HEREFORE, the plaintiffs demand thc following re lief:
1. A jury ni21;

2. A determinat ion and dcc lar.uOl)' judgmenllhal the defendanls ' bul k-rolle policy
\i olales the United States and the Orego n Constitutions;




3. A temp orary restraini ng: order and a pre lim inary inju nct ion duri n g the pendency of this
action cnjoi ning defendants from co ntinuing to enfo rce their bulk-rate policy at aSP;md all
G DGC facihties;
4. A permanent and final order enjo ining defendants henceforth from enfor cing their
bulk-rate policy at any facility ofOOOC;

5. Damages of at leas t one dol lar ($1) each per day (or as determined by the Court) for
each day plaintiffs Tucker, Wi lson and H ung were subjected to defe ndants' hulk -ra.!e policy;
6. Dam ages to CPR and PLN in an amount to be dete r mined at trial but the sum of at
leas! five hundred doll ars (5500) each;
7. An award ofplai mitTs' attorneys fees under 42 USC section 1988;
8. An award of plaint iffs' court costs; and
9. For such other and further eq uitable and moneta'}' relie f as the court deems just and

thi~f1;v of C~1998