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Preliminary injunction granted in PLN suit against Upshur County, TX

Longview News-Journal, Jan. 1, 2013.
Preliminary injunction granted in PLN suit against Upshur County, TX - Longview News-Journal 2013

Upshur County jail suit: Court OKs preliminary injunction

Posted: Friday, October 4, 2013 4:00 am

By Christina Lane

A federal court entered a preliminary injunction against Upshur County and Sheriff Anthony Betterton in a lawsuit regarding unconstitutional censorship of mail being delivered to prisoners in the Upshur County Jail.

The court Wednesday also denied an emergency motion for continuance filed by the county’s attorney.

Prison Legal News, which publishes a monthly magazine distributed nationwide to inmates, lawyers, judges and law libraries, filed a lawsuit Nov. 1 against Upshur County and Betterton, complaining that some of its publications had been returned from the Gilmer lockup. The lawsuit claims jail officials violated prisoners’ First Amendment rights by rejecting publications and marking them “refused,” “returned to sender” or “no newspaper.”

Though the Upshur County Jail revised its mail policy a month ago and while U.S. District Judge Rodney Gilstrap acknowledged that it was an “improvement,” he stated in his Monday ruling for a preliminary injunction, “the evidence suggests that at least some of PLN’s correspondence with prisoners has been withheld from its intended recipients, depriving plaintiff of its First Amendment rights without due process of law.”

The preliminary injunction requires Upshur County to abide by its new jail mail policy with modifications that include ensuring that both the recipient and sender receive notice of rejected mail within 72 hours stating the reason the mail was rejected, an opportunity for an appeal, and procedures for requesting an appeal. An appeal may be filed within 21 days of the rejection notice, and the sheriff shall, when possible, make a decision on an appeal within 72 hours, per terms of the injunction.

Attorney S. Cass Weiland, who is representing Upshur County in the case, said the injunction came as a surprise to him and county officials.

“We had just filed something in court indicating we were negotiating with the plaintiff over the lawsuit, then the injunction came,” Weiland said.

He noted the Upshur County Jail had been in the process of changing its mail policy for months and had involved the Texas Jail Standards Commission in revising it.

The new policy, which took effect last month, “was improved,” Weiland said.

Prison Legal News Editor Paul Wright said the injunction was a step in the right direction for the lawsuit.

“As a law enforcement official, the sheriff has an obligation to uphold the Constitution, including the First Amendment rights of people who want to communicate with those held in his jail,” Wright said in a prepared statement. “When he fails to meet his responsibilities to protect free speech, lawsuits are the only way to hold him accountable and to vindicate the Constitution.”

Following Monday’s preliminary injunction, Gilstrap on Wednesday denied an emergency motion for continuance in the case filed by Upshur County and denied a joint motion to extend deadlines related to the case. He granted a motion for a jury trial filed by Upshur County, setting the case for trial in Marshall on the Dec. 9 docket.