Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 1 of 17

CLERK'S OFFICE US. OIST. COllA

AT CHARlOTTQVI.lE Ua T

F1f ~

, .."

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA

OCT 08 2009

CHARLOTTESVILLE DIVISION ......................................., .. .. .. .. ..

JOH~ CORCORAN ~K

BY: ,
.

E.PWUTY1~CCIlEeR"yK:j'

J

: /
v

PRISON LEGAL NEWS, INC., Plaintiff,
vs.

COMPLAINT AND JURY DEMAND

ocxJv Civil Action No.3 :09cv

<6

GENE M. JOHNSON, JOHN M. JABE, W.D. JENNINGS, BENJAMIN WRIGHT, JOHN DOE 1-5, SUSAN WHEELER, TONI COX, SAMUEL PRUETT, and R.W. JAMISON,

Defendants.

INTRODUCTION 1. This is a civil action brought pursuant to 42 U.S.C. § 1983 to vindicate the Plaintiffs
rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff seeks declaratory and injunctive relief to order Defendants to cease their unconstitutional conduct as outlined below. Plaintiff also seeks nominal, compensatory and punitive damages, and an award of reasonable attorney's fees and costs. 2. Defendants have engaged in censorship of the publication "Prison Legal News" ("PLN") even though the publication contains non-sexual and non-violent articles and advertisements that do not implicate legitimate security concerns. Additionally, Defendants' censorship policy and practices do not provide for timely and adequate notice and a meaningful opportunity for the publisher to provide comments before a final decision to ban an issue of PLN from entry into the Virginia prison system. These

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 2 of 17
policies and practices deprive Plaintiff and its subscribers of their First and Fourteenth Amendment rights and serve no neutral, legitimate penological purpose. 3. Defendants also currently prohibit prisoners from receiving gift books and gift subscriptions to magazines from Plaintiff and other publishers, requiring instead that payment for these items comes from prisoners' prison accounts and that orders be placed through prison staff. Under Defendants' policies and practices, prisoners, many of whom are indigent, may not receive purchases on their behalf by family members, friends, or charitable organizations. This policy and practice deprives Plaintiff, as well as its subscribers, of its First Amendment rights and serves no neutral, legitimate penological purpose. 4. Defendants have also prohibited receipt by prisoners of PLN information packets, which contain information about subscriptions, renewals and other publications and books that may be of interest to its subscribers and other prisoners. This policy and practice deprives Plaintiff of its First Amendment rights and serves no neutral, legitimate, penological purpose.
JURISDICTION 5. This action arises under the First and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. § 1983. This Court has jurisdiction over this action under 28 U.S.C. §§1331 and 1343(a)(3) and (a)(4) and 28 U.S.C. §§2201 and 2202.
VENUE 6. Venue properly lies in this District pursuant to 28 U.S.C. §§ 1391 (b)(2) because ofthe
more than 35 prison institutions in Virginia, Plaintiff has narrowed and directed the focus
2

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 3 of 17
of a number of its specific factual claims to two institutions as representative of their grievances; both prison institutions are located in the Charlottesville Division of the Western District of Virginia.
PARTIES 7. Plaintiff Prison Legal News ("PLN") is a project of the Human Rights Defense Center
("HRDC"), a Washington State 501 (c)(3) non-profit corporation. Plaintiff is headquartered in the State of Washington, located at 2400 NW 80th Street, PMB #148, Seattle, Washington 98117. PLN publishes a monthly journal entitled "Prison Legal News" which reports on criminal justice news and issues. PLN also publishes, sells and distributes books on a variety of criminal justice, human rights and self-help issues. PLN also operates a website (www.prisonlegalnews.org) containing an extensive database of case law, verdicts, settlements, commentary, and other material related to these topics. 8. Defendant Gene M. Johnson is the Director of the Virginia Department of Corrections ("VDOC"). He is responsible for the implementation and enforcement of all VDOC policies and procedures. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 9. Defendant John M. Jabe is the Deputy Director, Division of Operations of the Virginia Department of Corrections and has been so at all times relevant to this complaint. Appeals from the decisions of the Publication Review Committee disapproving publications are taken to his office. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 10. Defendant W.D. Jennings has been, at times relevant to this Complaint, Chairman of the
3

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 4 of 17
Publications Review Committee ("PRC"), which committee is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. He has also been, at times relevant to this Complaint, the person within the Office of the Deputy Director of Operations to hear appeals from the final decisions of the Publication Review Committee. At all times relevant to this Complaint he was acting under color of state law. He is sued in his individual and official capacities. 11. Defendant Benjamin A. Wright has been, at times relevant to this Complaint, Chairman of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 12. Defendants John Doe 1 though 5 have been, at times relevant to this Complaint, members of the Publication Review Committee. Each of them is a voting member of the Committee for the purpose of approving or disapproving publications sent to prisoners at VDOC facilities. At all times relevant to this Complaint, they were acting under color of state law. Each is sued in his individual and official capacities. 13. Defendant Susan Wheeler has been, at times relevant to this Complaint, the Warden at Fluvanna Correctional Center. As such she is charged with the responsibility to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Complaint, she was acting under color of state law. She is sued in her individual and official capacities.
4

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 5 of 17
14. Defendant Toni Cox is the Operations Officer at Fluvanna Correctional Center. At times relevant to this Complaint, she has been delegated the authority to make initial decisions to disapprove publications sent to prisoners at that facility and has exercised authority to deny prisoners possession of publications to which they have subscribed. At all times relevant to this Complaint, she was acting under color of state law. She is sued in her individual and official capacities.
15. Defendant Samuel Pruett has been, at all times relevant to this Complaint, the Warden at Coffeewood Correctional Center. As such he is charged with the responsibility to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities.
16. Defendant R.W. Jamison is the Operations Officer at Coffeewood Correctional Center. At times relevant to this Complaint, he has been delegated the authority to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities. FACTS
17. PLN is a legal journal that reports on news and litigation concerning detention facilities. 18. PLN has published monthly since 1990 and has approximately 7,000 subscribers in alISO
states and abroad. PLN's subscribers include lawyers, journalists, judges, courts, public libraries, universities and prisoners. The estimated actual readership is 70,000 per month. PLN also maintains a website that receives more than 100,000 visitors a month.
5

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 6 of 17
19. PLN currently has, and at all times relevant to this Complaint, has had, numerous paid subscribers who are prisoners in the custody of the VDOC, including subscribers at Fluvanna Correctional Center and Coffeewood Correctional Center.
20. PLN engages in protected speech on matters of public concern. 21. Defendant Johnson has promulgated and all of the Defendants have implemented VDOC
Operating Procedure 803.2, "Incoming Publications" ("OP 803.2"). 22. Pursuant to OP 803.2, all prisoners must secure permission from the VDOC Facility Unit
head or his or her designee prior to ordering, subscribing to or otherwise receiving a publication. 23. OP 803.2 also contains a list of criteria for disapproving receipt of a publication. Some of the criteria are specific, such as the criteria for disapproving publications with sexual content, while other criteria are vague such as "Material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." 24. Prisoners may only receive publications from a "legitimate source" and publications must be prepaid from the prisoner's prison account. "Gift" subscriptions are prohibited. For example, Christine Acker, a prisoner incarcerated at Fluvanna Correction Center, was advised by Defendant Cox that she could no longer receive PLN because it was paid for by a third party, even though she had been receiving PLN as a result of that third party payment. Ms. Acker was able to secure a short subscription from the limited funds available to her in her prison account, even though her friend had already paid for a two year subscription for her.
6

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 7 of 17
25. Each permitted pUblication received at a VDOC facility is reviewed prior to distribution to the prisoner.
26. The Warden at each facility or his or her designee may disapprove a publication. 27. No notice is provided to the publisher that disapproval is being considered and therefore,
Plaintiff has no opportunity to oppose the proposed ban. 28. If disapproved by the facility, the prisoner to whom the publication is addressed receives
notice of disapproval. No notice is provided to the publisher. 29. For example, Thomas Littek, who is a subscriber to PLN and incarcerated at Coffeewood
Correctional Center, received notice from Defendant Jamison that he had disapproved possession of the April and May 2009 issues ofPLN pending review by the PRC. The notice to Littek simply identified OP 803.2, Section L 12, "Material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." However, neither Mr. Littek, nor other prisoners, receive any information as to the content of the artic1e(s) and/or advertisement(s) that prompted the decision to disapprove the pUblication or an explanation of how the artic1e(s) and/or advertisement(s) at issue meet the criteria identified. 30. Unless waived by the prisoner to whom it is addressed, the disapproved publication is submitted to the Publication Review Committee ("PRC") for final decision. 31. When a publication is disapproved at the facility level, the warden is required to make a record of hislher reasons for disapproving the publication, which record is forwarded to the PRC. At no time is the publisher provided with this record.
7

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 8 of 17
32. The PRC need only meet quarterly to review publications submitted to it from the various facilities within the VDOC. No limit is placed on the Committee as to the time within which it must consider a particular publication or make a decision with respect to that pUblication.
33. If the PRC makes a final decision to disapprove a publication, only then is the publisher notified. Such notifications include only the page(s) disapproved without specifying the article(s) and/or advertisement(s) which prompted the disapproval. In some instances, Plaintiff has received notice that the content of the entire publication is disapproved. Thus, for example, the notice received by PLN with respect to disapproval of the March 2009 issue states that the entire publication violates criteria #12 in that it "could be detrimental to the security and good order of the institution and the rehabilitation of offenders." No other information is provided.
34. The notice merely identifies by number the criteria upon which the disapproval is based, typically, as noted above, "Materials whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." No information is given as to how the disapproved material meets the criteria identified by the Committee.
35. The only time PlaintiffPLN received specific information as to why a particular publication was disapproved came in response to an appeal to Defendant Jabe in which he upheld a PRC decision because the material in question "presents information geared toward a negative perception of law enforcement that could be deemed detrimental to the security of the facility or offender rehabilitation efforts."
8

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 9 of 17
36. Notices to publishers are often delayed and therefore a publisher, such as PLN, may only receive notice months after the publication was disapproved at the facility level and, in some instances, months after a final disapproval decision was made by the PRC. For example, the May 2009 issue was disapproved by the PRC on April 24, 2009, yet notice was not received by PLN until August 19,2009.
37. In some instances, Plaintiff has received no notice of decisions by the PRC to disapprove one of its publications.
38. OP 803.2 provides that a publisher may appeal the decision of the PRC to the Deputy Director for Operations. All of the appeals filed by Plaintiff have been denied.
39. Since 2007, approximately fourteen issues ofPLN have been disapproved by the PRC. The censorship decisions are statewide and serve to ban PLN from all VDOC facilities.
40. Since 2007, even more issues were disapproved by facilities within VDOC. 41. From time to time, Plaintiff sends information packets to its subscribers and other
prisoners, which include instructions on how to subscribe and describing books and other printed materials that are available for sale. Defendants have banned such information from distribution asserting that prisoners must seek pre-approval of all such material.
CAUSES OF ACTION FIRST CAUSE OF ACTION (Lack of Timely and Adequate Notification to Publisher) 42. Plaintiff realleges and incorporates by reference paragraphs 1-41 herein. 43. Neither the publisher nor the subscribing prisoner is given notice that a facility head or his or her designee is considering disapproval of a publication.
9

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 10 of 17
44. The subscribing prisoner is given notice that the facility has disapproved the publication. However, a prisoner has no right to provide any information to the PRC, is not informed as to the article(s) and/or advertisement(s) at issue, and does not have a copy of the censored publication. Thus, only the publisher could make a meaningful challenge to a decision to censor a publication.
45. However, no notification is provided to the publisher that its publication has been disapproved until after a final decision has been made by the PRC. Thus PLN is prevented from providing information or otherwise contesting a disapproval decision before the PRC. The publication is effectively banned without input until a decision is made by the PRC. This is a binding, statewide decision that results in the publication being banned in all VDOC facilities.
46. As noted, no notice was received by Plaintiff as to some of the decisions of the PRC to disapprove a publication and when Plaintiff does receives notices, it is often months after the final decision has been made.
47. Moreover, if the PRC upholds the disapproval decision of the facility, the Notice sent to publishers does not specify the article(s) and/or advertisement(s) upon which the disapproval decision was made nor does the notice state how the article(s) and/or advertisement(s) violate the identified criteria.
48. Thus, PlaintiffPLN is prevented from being able to meaningfully refute or otherwise rebut any decision of the PRC in its appeal to the Deputy Director for Operations.
49. The failure to provide timely notification and adequate reasons for disapproval decisions, without adequate penological justification, violates Plaintiff s First Amendment and due
10

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 11 of 17
process rights. 50. As a direct and proximate result of the conduct of Defendants, Plaintiff has suffered
financial injury. SECOND CAUSE OF ACTION (Lack of Timely Decision)
51. Plaintiff realleges and incorporates by reference paragraphs 1-50 herein. 52. OP 803.2 does not set any limit on when a review of a facility censorship decision must
be considered and completed by the PRC. 53. In addition, the delay in providing notice to the publisher of the decisions of the PRC
further delays the ability of the Plaintiff to take the limited appeal available to it and effectively bans the publication even longer. 54. The failure of Defendants to expeditiously consider and resolve the proposed ban ofa publication, especially without notice to the publisher and without adequate penological justification, violates Plaintiffs First Amendment and due process rights.
THIRD CAUSE OF ACTION (Arbitrary and Capricious Decisions) 55. Plaintiffrealleges and incorporates by reference paragraphs 1-54 herein. 56. Since 2007, Defendants have disapproved numerous issues of PLN. On information and belief, some of these issues were censored based on advertisements, such as an advertisement allowing a prisoner to purchase items by the use of postage stamps for currency. 57. Similar advertisements have been included in every issue ofPLN since approximately 1995 and Defendants have not censored all of the issues that contain such advertisements.
11

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 12 of 17
58. Defendants have also disapproved issues ofPLN based on the assertion that some of the articles put law enforcement in a negative light and that these articles therefore "could be detrimental to the security and good order of the institution and the rehabilitation of offenders."
59. Most of these articles are summaries of reported court decisions or of the public record of the court proceedings taken from court records or mainstream newspapers. However, while censoring PLN, Defendants have not banned the public source materials for those articles.
60. Moreover, Defendants have not provided a rationale for concluding that truthful reporting of court proceedings and decisions "could be detrimental to the security and good order of the institution and the rehabilitation of offenders," thus preventing Plaintiff from responding to such claims.
61. The vague criteria described above has led to arbitrary and capricious decisions at the facility level as well as the at PRC, particularly since the practice of the PRC has not provided adequate guidance on the meaning of that criteria.
62. The arbitrary and capricious conduct of Defendants as described above, without adequate penological justification, violates Plaintiff s First Amendment and due process rights.
63. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered financial injury. FOURTH CAUSE OF ACTION (Censorship of Constitutionally Protected Speech)
64. Plaintiff realleges and incorporates by reference paragraphs 1-63 herein.
12

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 13 of 17
65. Defendants have disapproved publications that contain constitutionally protected speech. For example, issues have been disapproved based on articles about court proceedings merely because the proceeding or decision puts law enforcement in a negative light. Thus, issues of PLN that contain articles based upon court decisions related to law enforcement officials engaging in illegal and unconstitutional acts will likely result in that issue being banned from receipt by any prisoner confined in facilities under the direction and control of Defendants.
66. Other issues have been disapproved because of an article that describes the conditions of prisons and the daily drudgery and cruelties of prison life.
67. The aforesaid conduct by Defendants, without adequate penological justification, violates Plaintiffs First Amendment rights.
68. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered financial injury. FIFTH CAUSE OF ACTION (Refusal to Allow Gift Subscriptions)
69. Plaintiffrealleges and incorporates by reference paragraphs 1-68 herein. 70. OP 803.2 and the practice of Defendants prohibits prisoners in facilities under their
direction and control from receiving gift subscriptions and gift books. 71. The policy and practice of Defendants in refusing to allow gift subscriptions and gift
books, without adequate penological justification, violates Plaintiff s First Amendment rights. 72. As a direct and proximate result of the conduct of Defendants, Plaintiff has suffered
13

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 14 of 17
financial injury. SIXTH CAUSE OF ACTION
(Refusal to allow information packets) 73. Plaintiff realleges and incorporates by reference paragraphs 1-72 herein. 74. Prohibiting the receipt by Plaintiffs subscribers and others of information on how to
subscribe to the magazine and about books and other publications for sale by Plaintiff, without adequate penological justification, violates Plaintiff s First Amendment rights. 75. As a direct and proximate result of the conduct of Defendants, as described above, Plaintiff has suffered financial injury.
WHEREFORE, Plaintiff requests the following relief: a. Declaratory judgment that the failure to provide adequate and timely notice of decisions
to disapprove a publication and to provide Plaintiff a timely and adequate opportunity to be heard violates Plaintiffs First Amendment and due process rights; b. Preliminary and permanent injunction requiring that facilities under the control and direction of Defendants provide notice to the Plaintiff of any proposed decision to disapprove a PLN publication prior to a decision and that the notice indicate what specific article(s) and/or advertisement(s) are at issue and if a book, what pages, and an explanation of how the article(s) andlor advertisement(s) or pages in question may violate the criteria listed in OP 803.2; c. Preliminary and permanent injunction requiring that facilities under the control and direction of Defendants provide notice to the Plaintiff of any facility decision to
14

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 15 of 17
disapprove a PLN publication, that the notice indicate what specific article(s) and/or advertisement(s) are disapproved and if a book, what pages, and an explanation of how the article(s) andlor advertisement(s) or pages in question violate the criteria listed in OP 803.2; d. Preliminary and permanent Injunction directing that the Publications Review Committee
consider any and all information submitted to it by Plaintiff prior to deciding whether to uphold a facility decision to disapprove or ban a PLN publication; e. Preliminary and permanent injunction directing that the PRC determine whether to uphold a ban imposed by a facility under the control of Defendants within 10 business days of receiving a publication that has been disapproved at the facility level; f. Preliminary and permanent injunction requiring that the PRC provide notice to the Plaintiff of any decision to uphold a facility decision to disapprove a publication within 7 days of that decision and to provide notice as to the specific article(s) and/or advertisement(s) at issue and if a book, what pages, and an explanation of how the article(s) andlor advertisement(s) or pages in question violate the criteria listed in OP 803.2; g. Declaratory judgment that an article that presents a negative perception of law enforcement without more cannot be the basis of a censorship decision either by a facility under the direction and control of Defendants or the Publication Review Committee. h. Declaratory judgment that the policy that prohibits prisoners in facilities under the direction and control of Defendants from receiving gift subscriptions and gift books violates the First Amendment; 1. Preliminary and permanent injunction prohibiting Defendants from enforcing the policy prohibiting gift subscriptions to PLN and the purchase of gift books by third parties;
15

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 16 of 17

j.

Declaratory judgment that the policy that prohibits prisoners from receiving information

packets (or comparable information) in facilities under the direction and control of

Defendants violates the First Amendment;

k. Preliminary and permanent injunction prohibiting Defendants from enforcing its policy

prohibiting prisoners from receiving information packets (or comparable information)

fromPLN;

1.

Awarding Plaintiff nominal, compensatory and punitive damages;

m. Awarding attorney's fees and costs to Plaintiff;

n. Awarding such other and further relief as the Court may deem just and proper.

JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable.

y E. Fogel, VSB #75643 eyatLaw 913 E. Jefferson Street Charlottesville, VA 22902 434-984-0300 (Tel) Email: jeff.fogel@gmai1.com
Steven D. Rosenfield, VSB #16539 Attorney at Law 913 E. Jefferson Street

Respectfully submitted, PRISON LEGAL NEWS, INC. By Counsel
16

Case 3:09-cv-00068-nkm-bwc Document 1 Filed 10/08/09 Page 17 of 17 Charlottesville, VA 22902 434-984-0300 (Tel) Email: attyrosen@aol.com Daniel E. Manville General Counsel for the Human Rights Defense Center P.O. Box 20321 Ferndale, MI 48220 248-890-4720 (Tel) Email: daniel.manville@gmail.com Application to proceed pro hac vice to be filed Attorneys for Plaintiff
17

 
 Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 1 of 19

CLERK'S OFFICE U.S. DIST COURT

AT CHARLOTTESVILLE, VA

UNITED STATES DISTRICT COURT

FILED

FOR THE WESTERN DISTRICT OF VIRGINIA CHARLOTTESVILLE DIVISION

MAY 07 2010

..................................................

ByJOHN__~.~}~. eCOW~tCv~~&AfN-,~-9"L-W----,."."~"L).I/

PRISON LEGAL NEWS, INC., Plaintiff,

AMENDED COMPLAINT AND JURY DEMAND

vs.

Civil Action No. 3:09cv00068

GENE M. JOHNSON, JOHN M. JABE, W.D. JENNINGS, BENJAMIN WRIGHT, BARBARA WHEELER, TONI COX, SAMUEL PRUETT, R.W. JAMISON, LARRY COLLINS, BARBARA GENTRY, LINDA LEATHERWOOD, TAMMY BROWN, RITA BIBBINS and LOIS FEGAN

Defendants.
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..

INTRODUCTION

1. This is a civil action brought pursuant to 42 U.S.c. § 1983 to vindicate the Plaintiffs

rights under the First and Fourteenth Amendments to the United States Constitution.

Plaintiff seeks declaratory and injunctive relief to order Defendants to cease their

unconstitutional conduct as outlined below. Plaintiff also seeks nominal, compensatory

and punitive damages, and an award of reasonable attorney's fees and costs.

2, Defendants have engaged in censorship of the publication "Prison Legal News" ("PLN")

even though the publication contains non-sexual and non-violent articles and

advertisements that do not implicate legitimate security concerns. Additionally,

Defendants' censorship policy and practices do not provide for timely and adequate

notice and a meaningful opportunity for the publisher to provide comments before a final

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 2 of 19
decision to ban an issue of PLN from entry into the Virginia prison system. These policies and practices deprive Plaintiff and its subscribers of their First and Fourteenth Amendment rights and serve no neutral, legitimate penological purpose. 3. Defendants also currently prohibit prisoners from receiving gift books and gift subscriptions to magazines from Plaintiff and other publishers, requiring instead that payment for these items comes from prisoners' prison accounts and that orders be placed through prison staff. Under Defendants' policies and practices, prisoners, many of whom are indigent, may not receive purchases on their behalf by family members, friends, or charitable organizations. This policy and practice deprives Plaintiff, as well as its subscribers, of its First Amendment rights and serves no neutral, legitimate penological purpose. 4. Defendants have also prohibited receipt by prisoners ofPLN information packets, which contain information about subscriptions, renewals and other publications and books that may be of interest to its subscribers and other prisoners. This policy and practice deprives Plaintiff of its First Amendment rights and serves no neutral, legitimate, penological purpose.
JURISDICTION 5. This action arises under the First and Fourteenth Amendments to the United States
Constitution and 42 U.S.c. § 1983. This Court has jurisdiction over this action under 28 U.S.c. §§1331 and 1343(a)(3) and (a)(4) and 28 U.S.c. §§2201 and 2202.
VENUE 6. Venue properly lies in this District pursuant to 28 U.S.c. §§ 1391(b)(2) because of the
2

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 3 of 19
more than 35 prison institutions in Virginia, Plaintiff has narrowed and directed the focus of a number of its specific factual claims to two institutions as representative of their grievances; both prison institutions are located in the Charlottesville Division of the Western District of Virginia.
PARTIES 7. Plaintiff Prison Legal News ("PLN") is a project of the Human Rights Defense Center
("HRDC"), a Washington State 501(c)(3) non-profit corporation. Plaintiff is headquartered in the State of Washington, located at 2400 NW 80th Street, PMB #148, Seattle, Washington 98117. PLN publishes a monthly journal entitled "Prison Legal News" which reports on criminal justice news and issues. PLN also publishes, sells and distributes books on a variety of criminal justice, human rights and self-help issues. PLN also operates a website (www.prisonlegalnews.org) containing an extensive database of case law, verdicts, settlements, commentary, and other material related to these topics. 8. Defendant Gene M. Johnson is the Director of the Virginia Department of Corrections ("VDOC"). He is responsible for the implementation and enforcement of all VDOC policies and procedures. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 9. Defendant John M. Jabe is the Deputy Director, Division of Operations of the Virginia Department of Corrections and has been so at all times relevant to this Amended Complaint. Appeals from the decisions of the Publication Review Committee disapproving publications are taken to his office. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and
3

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 4 of 19
official capacities. 10. Defendant W.O. Jennings has been, at times relevant to this Amended Complaint,
Chairman of the Publications Review Committee ("PRC"), which committee is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. He has also been, at times relevant to this Complaint, the person within the Office of the Deputy Director of Operations to hear appeals from the final decisions of the Publication Review Committee. At all times relevant to this Amended Complaint he was acting under color of state law. He is sued in his individual and official capacities. 11. Defendant Benjamin A. Wright has been, at times relevant to this Amended Complaint, Chairman of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 12. Defendant Larry Collins has been, at times relevant to this Amended Complaint, Chairman of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 13. Defendant Barbara Gentry has been, at times relevant to this Amended Complaint, the staff secretary to the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia
4

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 5 of 19
Department of Corrections. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities. 14. Linda Leatherwood has been, at times relevant to this Amended Complaint, a member of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities. 15. Tammy Brown has been, at times relevant to this Amended Complaint, a member of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities. 16. Rita Bibbins has been, at times relevant to this Amended Complaint, a member of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities. 17. Lois Fegan has been, at times relevant to this Amended Complaint, a member of the Publication Review Committee, which as noted above, is responsible for making final decisions to disapprove publications sent to prisoners within the Virginia Department of Corrections. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities.
5

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 6 of 19
18. Barbara Wheeler has been, at time relevant to this Amended Complaint, the Warden at Fluvanna Correctional Center. As such she is charged with the responsibility to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities.
19. Defendant Toni Cox is the Operations Officer at Fluvanna Correctional Center. At times relevant to this Amended Complaint, she has been delegated the authority to make initial decisions to disapprove publications sent to prisoners at that facility and has exercised authority to deny prisoners possession of publications to which they have subscribed. At all times relevant to this Amended Complaint, she was acting under color of state law. She is sued in her individual and official capacities.
20. Defendant Samuel Pruett has been, at all times relevant to this Amended Complaint, the Warden at Goffeewood Correctional Center. As such he is charged with the responsibility to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and official capacities.
21. Defendant R.W. Jamison is the Operations Officer at Coffeewood Correctional Center. At times relevant to this Amended Complaint, he has been delegated the authority to make initial decisions to disapprove publications sent to prisoners at that facility. At all times relevant to this Amended Complaint, he was acting under color of state law. He is sued in his individual and official capacities.
6

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 7 of 19
FACTS 22. PLN is a legal journal that reports on news and litigation concerning detention facilities.
PLN has published monthly since 1990 and has approximately 7,000 subscribers in all 50 states and abroad. PLN's subscribers include lawyers, journalists, judges, courts, public libraries, universities and prisoners. The estimated actual readership is 70,000 per month. PLN also maintains a website that receives more than 100,000 visitors a month. 23. PLN currently has, and at all times relevant to this Amended Complaint, has had, numerous paid subscribers who are prisoners in the custody of the VDOC, including subscribers at Fluvanna Correctional Center and Coffeewood Correctional Center. 24. PLN engages in protected speech on matters of public concern. 25. Defendant Johnson has promulgated and all of the Defendants have implemented VDOC Operating Procedure 803.2, "Incoming Publications" ("OP 803.2"). 26. Pursuant to OP 803.2, all prisoners must secure permission from the VDOC Facility Unit head or his or her designee prior to ordering, subscribing to or otherwise receiving a publication. 27. OP 803.2 also contains a list of criteria for disapproving receipt of a publication. Some of the criteria are specific, such as the criteria for disapproving publications with sexual content, while other criteria are vague such as "Material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." 28. Prisoners may only receive publications from a "legitimate source" and publications must be prepaid from the prisoner's prison account. "Gift" subscriptions are prohibited. For
7

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 8 of 19
example, Christine Acker, a prisoner incarcerated at Fluvanna Correction Center, was advised by Defendant Cox that she could no longer receive PLN because it was paid for by a third party, even though she had been receiving PLN as a result of that third party payment. Ms. Acker was able to secure a short subscription from the limited funds available to her in her prison account, even though her friend had already paid for a two year subscription for her. 29. Each permitted publication received at a VDOC facility is reviewed prior to distribution to the prisoner. 30. The Warden at each facility or his or her designee may disapprove a publication. 31. No notice is provided to the publisher that disapproval is being considered and therefore, Plaintiff has no opportunity to oppose the proposed ban. 32. If disapproved by the facility, the prisoner to whomthe publication is addressed receives notice of disapproval. No notice is provided to the publisher. 33. For example, Thomas Littek, who is a subscriber to PLN and incarcerated at Coffeewood Correctional Center, received notice from Defendant Jamison that he had disapproved possession of the April and May 2009 issues of PLN pending review by the PRe. The notice to Littek simply identified OP 803.2, Section L 12, "Material whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." However, neither Mr. Littek, nor other prisoners, receive any information as to the content of the article(s) and/or advertisement(s) that prompted the decision to disapprove the publication or an explanation of how the article(s) and/or advertisement(s) at issue meet the criteria
8

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 9 of 19
identified. 34. Unless waived by the prisoner to whom it is addressed, the disapproved publication is
submitted to the Publication Review Committee ("PRC") for final decision. 35. When a publication is disapproved at the facility level, the warden is required to make a
record ofhislher reasons for disapproving the publication, which record is forwarded to the PRe. At no time is the publisher provided with this record. 36. The PRC need only meet quarterly to review publications submitted to it from the various facilities within the VDOe. No limit is placed on the Committee as to the time within which it must consider a particular publication or make a decision with respect to that publication. 37. If the PRC makes a final decision to disapprove a publication, only then is the publisher notified. Such notifications include only the page(s) disapproved without specifying the article(s) and/or advertisement(s) which prompted the disapproval. In some instances, Plaintiff has received notice that the content of the entire publication is disapproved. Thus, for example, the notice received by PLN with respect to disapproval of the March 2009 issue states that the entire publication violates criteria #12 in that it "could be detrimental to the security and good order of the institution and the rehabilitation of offenders." No other information is provided. 38. The notice merely identifies by number the criteria upon which the disapproval is based, typically, as noted above, "Materials whose content could be detrimental to the security, good order, discipline of the facility, or offender rehabilitative efforts or the safety or health of offenders, staff, or others." No information is given as to how the disapproved
9

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 10 of 19
material meets the criteria identified by the Committee. 39. The only time PlaintiffPLN received specific information as to why a particular
pUblication was disapproved came in response to an appeal to Defendant Jabe in which he upheld a PRC decision because the material in question "presents information geared toward a negative perception of law enforcement that could be deemed detrimental to the security of the facility or offender rehabilitation efforts." 40. Notices to publishers are often delayed and therefore a publisher, such as PLN, may only receive notice months after the publication was disapproved at the facility level and, in some instances, months after a final disapproval decision was made by the PRe. For example, the May 2009 issue was disapproved by the PRC on April 24, 2009, yet notice was not received by PLN until August 19,2009. 41. In some instances, Plaintiff has received no notice of decisions by the PRC to disapprove one of its publications. 42. OP 803.2 provides that a publisher may appeal the decision of the PRC to the Deputy Director for Operations. All of the appeals filed by Plaintiff have been denied. 43. Since 2007, approximately fourteen issues ofPLN have been disapproved by the PRC. The censorship decisions are statewide and serve to ban PLN from all VDOC facilities. 44. Since 2007, even more issues were disapproved by facilities within VDOC. 45. From time to time, Plaintiff sends information packets to its subscribers and other prisoners, which include instructions on how to subscribe and describing books and other printed materials that are available for sale. Defendants have banned such information from distribution asserting that prisoners must seek pre-approval of all such material.
10

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 11 of 19
CAUSES OF ACTION FIRST CAUSE OF ACTION (Lack of Timely and Adequate Notification to Publisher) 46. Plaintiff realleges and incorporates by reference paragraphs 1-45 herein. 47. Neither the publisher nor the subscribing prisoner is given notice that a facility head or his or her designee is considering disapproval of a publication. 48. The subscribing prisoner is given notice that the facility has disapproved the publication. However, a prisoner has no right to provide any information to the PRC, is not informed as to the artic1e(s) and/or advertisement(s) at issue, and does not have a copy of the censored publication. Thus, only the publisher could make a meaningful challenge to a decision to censor a publication. 49. However, no notification is provided to the publisher that its publication has been disapproved until after a final decision has been made by the PRe. Thus PLN is prevented from providing information or otherwise contesting a disapproval decision before the PRe. The publication is effectively banned without input until a decision is made by the PRe. This is a binding, statewide decision that results in the publication being banned in all VDOC facilities. 50. As noted, no notice was received by Plaintiff as to some of the decisions of the PRC to disapprove a publication and when Plaintiff does receives notices, it is often months after the final decision has been made. 51. Moreover, if the PRC upholds the disapproval decision of the facility, the Notice sent to publishers does not specify the artic1e(s) and/or advertisement(s) upon which the
11

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 12 of 19
disapproval decision was made nor does the notice state how the artic1e(s) and/or advertisement(s) violate the identified criteria. 52. Thus, PlaintiffPLN is prevented from being able to meaningfully refute or otherwise rebut any decision of the PRC in its appeal to the Deputy Director for Operations. 53. The failure to provide timely notification and adequate reasons for disapproval decisions, without adequate penological justification, violates Plaintiffs First Amendment and due process rights. 54. As a direct and proximate result of the conduct of Defendants, Plaintiff has suffered financial injury.
SECOND CAUSE OF ACTION (Lack of Timely Decision)
55. Plaintiffrealleges and incorporates by reference paragraphs 1-55 herein. 56. OP 803.2 does not set any limit on when a review of a facility censorship decision must
be considered and completed by the PRC. 57. In addition, the delay in providing notice to the publisher of the decisions of the PRC
further delays the ability of the Plaintiff to take the limited appeal available to it and effectively bans the publication even longer. 58. The failure of Defendants to expeditiously consider and resolve the proposed ban of a publication, especially without notice to the publisher and without adequate penological justification, violates Plaintiffs First Amendment and due process rights.
THIRD CAUSE OF ACTION (Arbitrary and Capricious Decisions) 59. Plaintiffrealleges and incorporates by reference paragraphs 1-58 herein.
12

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 13 of 19
60. Since 2007, Defendants have disapproved numerous issues ofPLN. On information and belief, some of these issues were censored based on advertisements, such as an advertisement allowing a prisoner to purchase items by the use of postage stamps for currency.
61. Similar advertisements have been included in every issue of PLN since approximately 1995 and Defendants have not censored all of the issues that contain such advertisements.
62. Defendants have also disapproved issues ofPLN based on the assertion that some of the articles put law enforcement in a negative light and that these articles therefore "could be detrimental to the security and good order of the institution and the rehabilitation of offenders."
63. Most of these articles are summaries of reported court decisions or of the public record of the court proceedings taken from court records or mainstream newspapers. However, while censoring PLN, Defendants have not banned the public source materials for those articles.
64. Moreover, Defendants have not provided a rationale for concluding that truthful reporting of court proceedings and decisions "could be detrimental to the security and good order of the institution and the rehabilitation of offenders," thus preventing Plaintiff from responding to such claims.
65. The vague criteria described above has led to arbitrary and capricious decisions at the facility level as well as the at PRe, particularly since the practice of the PRe has not provided adequate guidance on the meaning of that criteria.
13

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 14 of 19
66. The arbitrary and capricious conduct of Defendants as described above, without adequate penological justification, violates Plaintiff's First Amendment and due process rights.
67. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered financial injury. FOURTH CAUSE OF ACTION (Censorship of Constitutionally Protected Speech)
68. Plaintiff realleges and incorporates by reference paragraphs 1-67 herein. 69. Defendants have disapproved publications that contain constitutionally protected speech.
For example, issues have been disapproved based on articles about court proceedings merely because the proceeding or decision puts law enforcement in a negative light. Thus, issues of PLN that contain articles based upon court decisions related to law enforcement officials engaging in illegal and unconstitutional acts wi11likely result in that issue being banned from receipt by any prisoner confined in facilities under the direction and control of Defendants. 70. Other issues have been disapproved because of an article that describes the conditions of prisons and the daily drudgery and cruelties of prison life. 71. The aforesaid conduct by Defendants, without adequate penological justification, violates Plaintiff's First Amendment rights. 72. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered financial injury.
FIFTH CAUSE OF ACTION (Refusal to Allow Gift Subscriptions) 73. Plaintiff realleges and incorporates by reference paragraphs 1-72 herein.
14

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 15 of 19
74. OP 803.2 and the practice of Defendants prohibits prisoners in facilities under their direction and control from receiving gift subscriptions and gift books.
75. The policy and practice of Defendants in refusing to allow gift subscriptions and gift books, without adequate penological justification, violates Plaintiffs First Amendment rights.
76. As a direct and proximate result of the conduct of Defendants, Plaintiff has suffered financial injury. SIXTH CAUSE OF ACTION (Refusal to allow information packets)
77. Plaintiff realleges and incorporates by reference paragraphs 1-76 herein. 78. Prohibiting the receipt by Plaintiffs subscribers and others of information on how to
subscribe to the magazine and about books and other publications for sale by Plaintiff, without adequate penological justification, violates Plaintiffs First Amendment rights. 79. As a direct and proximate result of the conduct of Defendants, as described above, Plaintiff has suffered financial injury.
WHEREFORE, Plaintiff requests the following relief: a. Declaratory judgment that the failure to provide adequate and timely notice of decisions
to disapprove a publication and to provide Plaintiff a timely and adequate opportunity to be heard violates Plaintiffs First Amendment and due process rights; b. Preliminary and permanent injunction requiring that facilities under the control and direction of Defendants provide notice to the Plaintiff of any proposed decision to
15

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 16 of 19

disapprove a PLN publication prior to a decision and that the notice indicate what specific

article(s) and/or advertisement(s) are at issue and if a book, what pages, and an

explanation of how the article(s) and/or advertisement(s) or pages in question may violate

the criteria listed in OP 803.2;

c. Preliminary and permanent injunction requiring that facilities under the control and

direction of Defendants provide notice to the Plaintiff of any facility decision to

disapprove a PLN publication, that the notice indicate what specific article(s) and/or

advertisement(s) are disapproved and if a book, what pages, and an explanation of how

the article(s) and/or advertisement(s) or pages in question violate the criteria listed in OP

803.2;

d. Preliminary and permanent Injunction directing that the Publications Review Committee

consider any and all information submitted to it by Plaintiff prior to deciding whether to

uphold a facility decision to disapprove or ban a PLN publication;

e. Preliminary and permanent injunction directing that the PRC determine whether to

uphold a ban imposed by a facility under the control of Defendants within 10 business

days ofreceiving a publication that has been disapproved at the facility level;

f.

Preliminary and permanent injunction requiring that the PRC provide notice to the

Plaintiff of any decision to uphold a facility decision to disapprove a publication within 7

days of that decision and to provide notice as to the specific article(s) and/or

advertisement(s) at issue and if a book, what pages, and an explanation of how the

article(s) and/or advertisement(s) or pages in question violate the criteria listed in OP

803.2;

16

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 17 of 19

g. Declaratory judgment that an article that presents a negative perception of law

enforcement without more cannot be the basis of a censorship decision either by a facility

under the direction and control of Defendants or the Publication Review Committee.

h. Declaratory judgment that the policy that prohibits prisoners in facilities under the

direction and control of Defendants from receiving gift subscriptions and gift books

violates the First Amendment;

1.

Preliminary and permanent injunction prohibiting Defendants from enforcing the policy

prohibiting gift subscriptions to PLN and the purchase of gift books by third parties;

j.

Declaratory judgment that the policy that prohibits prisoners from receiving information

packets (or comparable information) in facilities under the direction and control of

Defendants violates the First Amendment;

k. Preliminary and permanent injunction prohibiting Defendants from enforcing its policy

prohibiting prisoners from receiving information packets (or comparable information)

fromPLN;

1.

Awarding Plaintiff nominal, compensatory and punitive damages;

m. Awarding attorney's fees and costs to Plaintiff;

n. Awarding such other and further relief as the Court may deem just and proper.

JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable.

17

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 18 of 19
Respectfully submitted, PRISON LEGAL NEWS, INC. By Counsel
Jeffrey E. Fogel, VSB #75643 Attorney at Law 913 E. Jefferson Street Charlottesville, VA 22902 434-984-0300 (Tel) Steven D. Rosenfield, VSB #16539 Attorney at Law 913 E. Jefferson Street Charlottesville, VA 22902 Daniel E. Manville General Counsel for the Human Rights Defense Center P.O. Box 20321 Ferndale, MI 48220 248-890-4720 (Tel) Attorneys for Plaintiff
18

Case 3:09-cv-00068-nkm-bwc Document 29 Filed 05/07/10 Page 19 of 19

CERTIFICATE I hereby certify that on the 27th day of April, 2010, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system which will send information of such filing to the following:

1. Michael Parsons, VSB #68520 Assistant Attorney General Public Safety & Enforcement Division Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-6115 (804) 786-4239 (Fax)

Mark Davis, VSB # Senior Assistant Attorney General Public Safety & Enforcement Division Office of the Attorney General 900 East Main Street Richmond, VA 23219 (804) 786-5631 (804) 786-4239 (Fax)

s/Jeffrey E. Fogel

 
 Case 3:09-cv-00068-nkm-bwc Document 38 Filed 11/22/10 Page 1 of 2

IN THE UNITED STATES DISTRlCT COURT FOR THE WESTERN COURT OF VIRGINIA
Charlottesville Division

PRlSON LEGAL NEWS, INC.,
Plaintiff,
-vGENE M. JOHNSON, Director, Virginia Department of Corrections, JOHN JABES, Deputy Dircctior, BENJAMIN WRIGHT, Chairman, Publication Review Committee, W.D. JENNINGS , Member, Publication Review Committee, BARBAR4. \-VHEELER, Warden, Fluvanna Correctional Center (or Women, SAMUEL PRUITT, Warden, Coffccwood Correctional Center; lll1 sued in their individmtl :tnd offichll capacities,
Defendants.

Case No. 3:09-ev-00068 CONSENT ORDER

The panies, acting by and through their counsel, informed the Court that a settlement has been reached and ask that the Court dismiss this case with prejud ice. The Court has given due consideration to this matter, and hereby DISMISSES this case with prejudice. The Court shall retain jurisdiction in order to enforce the two agreements reached by the parties.
The clerk is directed to send certified copies of this Order to counsel of reco rd. Entered this _ _ day of September, 20] O.

Senior U.S. District Court

Case 3:09-cv-00068-nkm-bwc Document 38 Filed 11/22/10 Page 2 of 2
Seen and agreed to:
"
Steven D. Rosenfield , S8 #16539 Attorney at Law 913 E. Jefferson Street Charlottesville, VA 22902 Jeffrey E. Fogel, VSB #75643 A nomey at Law 913 E. Jefferson Street Charlottesville, VA 22902 Counsel for Prison Legal Nev,,'s
Y?1euA £.~=.-
Mark Davis, Senior AAG, VSB # 18830 Office of the Attorney General
900 E. Main Street
Richmond, VA 23219 Counsel for All Named Defendants
2

 
 CLOSED, CASREF, MEDIATION
U.S. District Court Western District of Virginia (Charlottesville) CIVIL DOCKET FOR CASE #: 3:09−cv−00068−nkm−bwc

Prison Legal News, Inc. v. Johnson Assigned to: Judge Norman K. Moon Referred to: Magistrate Judge B. Waugh Crigler Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Prison Legal News, Inc.

Date Filed: 10/08/2009 Date Terminated: 11/23/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Adam K. Cook HUMAN RIGHTS DEFENSE CENTER P O BOX 2420 WEST BRATTLEBORO, VT 05303 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jeffrey Edward Fogel JEFFREY E. FOGEL LAW OFFICE 913 E. JEFFERSON STREET CHARLOTTESVILLE, VA 22902 434−984−0300 Fax: 220−4852 Email: jeff.fogel@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven David Rosenfield ROSENFIELD &WAYLAND 913 EAST JEFFERSON STREET CHARLOTTESVILLE, VA 22902 434−984−0300 Fax: 434−220−4852 Email: attyrosen@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Edward Manville DANIEL E. MANVILLE, P.C. P. O. BOX 20321 FERNDALE, MI 48220 248−890−4720 Fax: 556−5598 Email: daniel.manville@gmail.com TERMINATED: 06/24/2010 PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Gene M. Johnson

represented by Mark Ralph Davis OFFICE OF THE ATTORNEY GENERAL 900 EAST MAIN STREET RICHMOND, VA 23219 804−786−5631 Fax: 804−786−4239 Email: mark.davis@oag.state.va.us

Defendant John M. Jabe
Defendant W. D. Jennings
Defendant Benjamin Wright
Defendant John Doe 1−5 TERMINATED: 05/07/2010 Defendant Barbara Wheeler
Defendant Toni Cox

LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons OFFICE OF THE ATTORNEY GENERAL 900 EAST MAIN STREET RICHMOND, VA 23219 804−786−8115 Fax: 804−786−4239 Email: jparsons@oag.state.va.us ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by John Michael Parsons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address)

Defendant Samuel Pruett
Defendant R. W. Jamison
Defendant Larry Collins
Defendant Barbara Gentry
Defendant Linda Leatherwood
Defendant Tammy Brown
Defendant Rita Bibbins
Defendant Lois Fegan

LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Michael Parsons (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Ralph Davis (See above for address)

Date Filed 10/08/2009
10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009 10/08/2009
10/08/2009 10/09/2009 10/12/2009 01/08/2010 01/08/2010 01/08/2010
02/01/2010

LEAD ATTORNEY ATTORNEY TO BE NOTICED
# Docket Text
1 COMPLAINT against Susan Wheeler, Toni Cox, Samuel Pruett, R. W. Jamison, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright, John Doe 1−5 (Filing fee $ 350.), filed by Prison Legal News, Inc.. 100 Day Notice due by 1/19/2010 120 Day Service due by 2/8/2010 (Attachments: # 1 Civil Cover Sheet)(hnw)
Filing Fee Received: $ 350.00, receipt number 1441 (hnw)
2 Summons Issued as to Gene M. Johnson.(hnw)
3 Summons Issued as to John M. Jabe.(hnw)
4 Summons Issued as to W. D. Jennings.(hnw)
5 Summons Issued as to Benjamin Wright.(hnw)
6 Summons Issued as to Susan Wheeler.(hnw)
7 Summons Issued as to Toni Cox.(hnw)
8 Summons Issued as to Samuel Pruett.(hnw)
9 Summons Issued as to R. W. Jamison.(hnw)
10 Notice of Filing Deficiency − Lack of Corporate Disclosure Statement as to Prison Legal News, Inc. − Pursuant to Standing Order dated May 15, 2000, and the adoption of Rule 7.1 of the Federal Rules of Civil Procedures, effective December 1, 2002, nongovernmental corporate parties are now directed to file the above statement with their first appearance, pleading, motion or response. We ask that you comply with this rule change in the future. The corporate disclosure statement form is available on our public website at www.vawd.uscourts.gov. The form is located under forms on this web page. This form should be electronically filed in this matter within three (3) business days. (hnw)
11 MOTION to Appear Pro Hac Vice by Prison Legal News, Inc.. (Rosenfield, Steven)
12 ORDER granting 11 MOTION to Appear Pro Hac Vice; Daniel Manville. Signed by Judge Norman K. Moon on 10/09/2009. (mab)
13 Positive Corporate Disclosure Statement by Prison Legal News, Inc.. (Rosenfield, Steven)
14 NOTICE of Appearance by Mark Ralph Davis on behalf of Barbara Wheeler, Toni Cox, Samuel Pruett, R. W. Jamison, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright (Davis, Mark)
15 NOTICE of Appearance by John Michael Parsons on behalf of Toni Cox, Samuel Pruett, R. W. Jamison, Barbara Wheeler, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright (Parsons, John)
16 WAIVER OF SERVICE Returned Executed by Toni Cox, Samuel Pruett, R. W. Jamison, Barbara Wheeler, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright. Toni Cox waiver sent on 1/8/2010, answer due 3/9/2010; Samuel Pruett waiver sent on 1/8/2010, answer due 3/9/2010; R. W. Jamison waiver sent on 1/8/2010, answer due 3/9/2010; Barbara Wheeler waiver sent on 1/8/2010, answer due 3/9/2010; Gene M. Johnson waiver sent on 1/8/2010, answer due 3/9/2010; John M. Jabe waiver sent on 1/8/2010, answer due 3/9/2010; W. D. Jennings waiver sent on 1/8/2010, answer due 3/9/2010; Benjamin Wright waiver sent on 1/8/2010, answer due 3/9/2010.(Davis, Mark)
17 ANSWER to 1 Complaint, by Toni Cox, Samuel Pruett, R. W. Jamison, Barbara Wheeler, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright.(Davis, Mark)

02/16/2010 02/23/2010 02/23/2010 02/23/2010 03/05/2010 03/05/2010
03/08/2010 03/09/2010 04/27/2010
05/07/2010 05/07/2010
05/13/2010
06/23/2010 06/24/2010
07/23/2010 07/26/2010
07/26/2010 08/24/2010 08/24/2010 11/22/2010
11/23/2010

18 MOTION to Amend/Correct Name of Barbara Wheeler by Prison Legal News, Inc.. (Rosenfield, Steven)
19 ORDER granting 18 Motion to Amend/Correct. Signed by Judge Norman K. Moon on 2/23/10. (hnw)
20 Magistrate's Notice to counsel. (hnw)
21 PRETRIAL ORDER. Signed by Judge Norman K. Moon on 2/23/10. (hnw)
23 Rule 26(f) Agreed Written Plan by Plaintiff Prison Legal News, Inc.. (Rosenfield, Steven)
24 NOTICE of Hearing: Jury Trial set for 12/1/2010 09:30 AM in Charlottesville before Judge Norman K. Moon for two days, and further such deadlines as set forth in said notice.(hnw)
25 MOTION to Amend/Correct 21 Pretrial Order by Prison Legal News, Inc..Motions referred to B. Waugh Crigler. (Rosenfield, Steven)
26 ORDER granting 25 Motion to Amend/Correct. Signed by Judge B. Waugh Crigler on 3/9/10. (hnw) Modified on 3/9/2010 to correct Judge Association (hnw).
27 MOTION to Amend/Correct 1 Complaint, by Prison Legal News, Inc..Motions referred to B. Waugh Crigler. (Attachments: # 1 Exhibit Proposed Amended Complaint)(Fogel, Jeffrey)
28 ORDER granting 27 Motion to Amend/Correctand setting answer due deadline to 5/14/10. Signed by Magistrate Judge B. Waugh Crigler on 5/7/10. (hnw)
29 AMENDED COMPLAINT against Larry Collins, Barbara Gentry, Linda Leatherwood, Tammy Brown, Rita Bibbins, Lois Fegan, Barbara Wheeler, Toni Cox, Samuel Pruett, R. W. Jamison, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright, filed by Prison Legal News, Inc..(hnw)
30 ANSWER to 29 Amended Complaint, by Larry Collins, Barbara Gentry, Linda Leatherwood, Tammy Brown, Rita Bibbins, Lois Fegan, Barbara Wheeler, Toni Cox, Samuel Pruett, R. W. Jamison, Gene M. Johnson, John M. Jabe, W. D. Jennings, Benjamin Wright.(Davis, Mark)
31 First MOTION to Withdraw as Attorney by Prison Legal News, Inc..Motions referred to B. Waugh Crigler. (Rosenfield, Steven)
32 ORDER granting 31 Motion to Withdraw as Attorney. Attorney Daniel Edward Manville terminated and attorney Adam K. Cook substituted as counsel, pro hac vice. Signed by Magistrate Judge B. Waugh Crigler on 6/24/10. (hnw)
33 ORDER REFERRING CASE to Mediation.. Signed by Judge Norman K. Moon on 7/23/10. (hnw)
34 ORDER ( Confidential mediation statements due by 8/19/2010., Mediation Hearing set for 8/24/2010 10:00 AM in Charlottesville before Magistrate Judge B. Waugh Crigler.). Signed by Magistrate Judge B. Waugh Crigler on 7/26/10. (hnw)
35 NOTICE of Hearing: Mediation Hearing set for 8/24/2010 10:00 AM in Charlottesville before Magistrate Judge B. Waugh Crigler. (hnw)
36 Minute Entry for proceedings held before Magistrate Judge B. Waugh Crigler: Settlement Conference / Mediation held on 8/24/2010. (hnw)
37 ORDER /REPORT regarding the mediation proceedings held on 8/24/10. Signed by Magistrate Judge B. Waugh Crigler on 8/24/10. (hnw)
38 NOTICE of Settlement by Rita Bibbins, Tammy Brown, Larry Collins, Toni Cox, Lois Fegan, Barbara Gentry, John M. Jabe, R. W. Jamison, W. D. Jennings, Gene M. Johnson, Linda Leatherwood, Prison Legal News, Inc., Samuel Pruett, Barbara Wheeler, Benjamin Wright (hnw)
39 ORDER DISMISSING CASE with prejudice. Signed by Judge Norman K. Moon on 11/23/10. (hnw)

11/23/2010 11/23/2010

40 Letter dated 11/22/10 from Barry Albert Requesting copies of disposition of case. (hnw)
41 Letter from Clerk's Office in response to copy request. (hnw)

 
 SETTLEMENT AGREEMENT

This Agreement is entered into by parties PRISON LEGAL NEWS, INC. (“PLN”) and
GENE M. JOHNSON, JOHN M. JABE, W.D. JENNINGS, BENJAMIN WRIGHT, BARBARA WHEELER, TONI COX, SAMUEL PRUETT, R.W. JAMISON, LARRY COLLINS, BARBARA GENTRY, LINDA
LEATHERWOOD, TAMMY BROWN, RITA BIBBINS and LOIS FEGAN (hereinafter “Defendants”) in their respective individual capacities and is for the purpose of effecting settlement of the monetary relief claims in Prison Legal News, Inc. v. Gene Johnson, et al., Civil Action No. 3:09cv00068 (W.D. Va. 2009)(J. Moon) (“the lawsuit”). This Settlement Agreement resolves all related monetary claims.

PLN and Defendants agree as follows:

.

1. The Defendants shall cause to be paid to Prison Legal News, Inc. the sum of Forty Thousand

Dollars ($40,000) representing a compromise of the claims made by PLN for damages. The Defendants

shall also cause to be paid to PLN, pursuant to 42 U.S.C. section 1988, $83,370.00 in legal fees

and $ 1,880.00 in costs and expenses.

The combined payment to PLN, through their counsel, shall be $ 125,250.00.

2. The Court in which the lawsuit originated shall retain jurisdiction in order to enforce this Agreement and this shall be reflected in the Court’s Order.

3. This is the entire Agreement between PLN and GENE M. JOHNSON, JOHN M. JABE,
W.D. JENNINGS, BENJAMIN WRIGHT, BARBARA WHEELER, TONI COX, SAMUEL PRUETT, R.W. JAMISON, LARRY COLLINS, BARBARA GENTRY, LINDA LEATHERWOOD, TAMMY BROWN, RITA
BIBBINS and LOIS FEGAN in their respective individual capacities.

4. PLN and Defendants voluntarily enter into this SettlementAgreement. No
promises have been made by or to either PLN or GENE M. JOHNSON, JOHN M. JABE, W.D.
JENNINGS, BENJAMIN WRIGHT, BARBARA WHEELER, TONI COX, SAMUEL PRUETT, R.W. JAMISON, LARRY COLLINS, BARBARA GENTRY, LINDA LEATHERWOOD, TAMMY BROWN, RITA
BIBBINS and LOIS FEGAN, except as stated herein. The parties understand that this resolution of
the damages claim, attorneys fees, expenses and costs, settles completely the claims set forth
against the Defendants in PLN’s complaint as filed in the lawsuit. PLN and all Defendants and
GENE M. JOHNSON, JOHN M. JABE, W.D. JENNINGS, BENJAMIN WRIGHT, BARBARA WHEELER, TONI COX, SAMUEL PRUETT, R.W. JAMISON, LARRY COLLINS, BARBARA GENTRY, LINDA
LEATHERWOOD, TAMMY BROWN, RITA BIBBINS and LOIS FEGAN do hereby release and forever
discharge each other from any and all claims and demands set forth in the Complaint. The parties
further understand that this Settlement resolves all claims that have arisen up to and including
the date of the settlement and that PLN is not forfeiting its right to sue over issues not raised in the complaint and/or that occur after signing.

5. If an agreement as to all issues is reached, upon receipt of the executed Settlement Agreement, counsel for PLN and counsel for defendants shall jointly move for voluntary dismissal of the lawsuit.

ENTERED into the date set forth when executed below: Plaintiff Prison legal News, Inc.:

__________________________________

By counsel

Date

All Defendants and VDOC:

By the Assistant Attorney General

Date

 
 SETTLEMENT AGREEMENT

This Agreement is entered into by parties Prison Legal News, Inc. (“PLN”) and Gene Johnson in his official capacity as Director for the Virginia Department of Virginia (“VDOC”) and is for the purpose of effecting settlement of the non-monetary relief claims in Prison Legal News, Inc. v. Gene Johnson, et al., Civil Action No. 3:09cv00068 (W.D. Va. 2009)(J. Moon) (“the lawsuit”) as between PLN and VDOC. This Settlement Agreement resolves all injunctive relief and related non-monetary claims. PLN agrees that no individual defendant remains liable for any non-monetary relief claims. Nothing in this Agreement shall be construed to affect any liability that the defendants may have for damages in their individual capacity.

PLN and VDOC agree as follows:

.

1. VDOC has removed any references to all previously disapproved issues of PLN from its

Disapproved Publications List. VDOC agrees not to revisit and disapprove any of those issues.

2. VDOC shall revise their publisher notice procedure as to PLN. VDOC will communicate to all state correctional facility Wardens/Superintendents that the Director and Deputy Director have reviewed PLN issues previously disapproved for receipt into VDOC facilities and determined that none of those issues contained material that violates agency publication policy. This communication shall further state that the Director and Deputy Director have concluded that PLN does not appear to be a publication that contains material that violates agency publication policy. This communication shall further instruct the Wardens/Superintendents to make sure that this information is shared with those facility persons responsible for review of incoming publications. This communication will also instruct that if there is a facility determination that a future issue of PLN contains material that appears to violate agency publications policy, that particular PLN issue is to be sent without undue delay directly to the Office of the Deputy Director, with an explanation as to what particular material is thought to violate agency publications policy.

3. Should the Deputy Director or his designee conclude that a future issue of PLN contains material that violates agency publications policy, the Deputy Director or his designee shall promptly send notice to PLN. That notice shall identify with specificity what article(s) and/or advertisement(s) violate agency publications policy, and specifically inform PLN of how that article or advertisement violates any of the publications criteria contained in VDOC Operating Procedure 803.2. The Deputy Director or his designee shall also inform PLN of its right to appeal the Deputy Director’s decision to the VDOC Director within 30 days of receipt by PLN of the notice. The Director shall render his decision on the appeal within 14 days and provide notice to PLN of the reason(s) for his decision.

4. VDOC will no longer require that all incoming publications can only be purchased with funds maintained in a prisoner’s institutional account. VDOC instead will allow periodicals (including PLN) and books to be purchased by third parties for prisoners. VDOC may maintain its existing policy to the effect that incoming publications will only be allowed for receipt into state correctional facilities so long as the publication comes from an approved source. PLN is an approved source.
The VDOC specifically reserves the right to return to court to seek modification of this provision any time should its experience with this provision result in unforeseen consequences;
5. VDOC shall permit PLN to continue to send its “Information Packet” (which contains information about subscriptions and books offered by PLN) in envelopes addressed to individual prisoners. VDOC shall communicate to the Wardens/Superintendents of all state correctional facilities that the PLN “Information Packet” does not require prior approval;
6. VDOC agrees to coordinate with PLN concerning the individual PLN issues which have previously been disapproved for receipt into VDOC facilities. DOC and PLN will work
together to identify those VDOC facilities where PLN subscribers are currently housed, and VDOC will
place the past issues at those facilities. PLN will provide sufficient copies of those issues or electronic versions thereof to be printed at VDOC expense. PLN will advise each of its subscribers of the availability of the previously disapproved issues. Such issues of PLN as are identified in accordance with this provision of the Settlement Agreement will be maintained for inmates to access for a period of not fewer than six months after the individual facility receives such issue. VDOC accepts no responsibility for inmate removal, defacement, or destruction of any PLN issue and does not agree to replace any issues so removed, defaced or destroyed.
7. The VDOC agrees to post on existing bulletin boards of each state correctional facility for a period of one year a notice (1) that all previously disapproved issues of Prison Legal News have been removed from the Disapproved Publications List and are now approved for receipt into Virginia state correctional facilities; (2) that third parties may now order publications, including periodicals and books from publishers and vendors for prisoners, subject to the other provisions of OP 803.2; (3) advising that subscriptions or ordering information from Prison Legal News may be obtained by writing to Prison Legal News, Post Office Box 2420, West Brattelboro, VT 05303; and (4) that any problems with access to Prison Legal News may be addressed to Prison Legal News, Post Office Box 2420, West Brattelboro, VT 05303. Such notice will be published on facility bulletin boards (or like places for communication of information to the inmate population) so as to allow inmates a reasonable opportunity to access the information contained in the notice. VDOC accepts no responsibility for inmate removal, defacement or destruction of such notices, and does not agree to replace any notices inmates remove, deface or destroy; All inmates who do not have access to the referenced bulletin boards shall be provided with individual copies of the notices.
8. The parties agree to continue negotiations to attempt to resolve the issue of damages. The issue of damages is reserved for trial in the event that settlement is not reached.

9. The Court in which the lawsuit originated shall retain jurisdiction in order to enforce this Agreement and this shall be reflected in the Court’s Order.
10. VDOC agrees for purposes of attorneys fees, that PLN is the prevailing party under 42 U.S.C. § 1988. VDOC agrees to pay to counsel for PLN reasonable fees, expenses and costs in attaining this Settlement Agreement. If the parties cannot agree on an appropriate sum to compensate for attorneys fees, expenses and costs as allowed under 42 U.S.C. § 1988, then this issue shall be submitted to the Court for final determination. The parties agree that any resolution of attorneys fees, expenses and costs will not be determined until all aspects of this lawsuit, including damages, is resolved. PLN agrees that no attorneys fees, expenses or costs incurred subsequent to the date of the execution of this Settlement Agreement will be apportioned to any claim for attorneys fees, expenses and costs associated with obtaining nonmonetary relief, subject to the provision in paragraph 11;
11. In the event PLN believes VDOC, its officials or employees have not complied with any provision of this Settlement Agreement, PLN shall notify the VDOC Director personally of its concerns in this regard and allow the VDOC Director 45 days within which to investigate and if necessary come into compliance. No action for enforcement shall be initiated any sooner than 45 days after the VDOC Director has received notice under this provision. In such an action, PLN agrees not to seek attorney’s fees, expenses or costs incurred that are not incidental to the initiation of the enforcement action and VDOC on behalf of itself and its agents and employees agrees not to defend any such request for attorney’s fees, expenses or costs on the grounds of mootness or related defenses. PLN agrees that relief in an enforcement action will be limited to a judicial order directing VDOC to come into compliance with the terms of the Settlement Agreement.
If after three years, VDOC and PLN agree that PLN has experienced no difficulties with receiving notices of disapprovals or receipt into VDOC facilities, then the VDOC will continue to provide notice to PLN consistent with the method then ion place for providing all other publishers notice. In order to allow the relief granted by this Agreement to be fully implemented, unless mutually agreed to by the parties, the parties agree not to seek to modify or terminate or otherwise challenge the Agreement for a period of three years, except pursuant to paragraph 4 of this Agreement, VDOC may be allowed to return to court (or otherwise revisit the issue with PLN) in the event of unforeseen consequences.
12. If this case settles on the remaining monetary issues, upon receipt of the executed Settlement Agreement and entry of the Dismissal Order of the lawsuit, this payment will be made in the ordinary course of Commonwealth of Virginia business.
13. This is the entire Agreement between PLN and Gene Johnson in his official capacity as Director for the Virginia Department of Virginia
14. PLN and VDOC voluntarily enter into this SettlementAgreement. No promises have been made by or to either PLN or VDOC, except as stated herein. The parties understand that upon resolution of the damages claim, attorneys fees, expenses and costs, this Settlement Agreement settles completely the claims set forth against Gene Johnson and the other defendants

in PLN’s complaint as filed in the lawsuit. PLN and all defendants and VDOC do hereby release and forever discharge each other from any and all claims and demands set forth in the Complaint, except for any and all claims and demands relating to enforcement of this Settlement Agreement, as set out in Paragraph 11 above. The parties further understand that this Settlement
resolves all claims that have arisen up to and including the date of the settlement and that PLN is not forfeiting its right to sue over issues not raised in the complaint and/or that occur after signing.
15. If an agreement as to all issues is reached, upon receipt of the executed Settlement Agreement, counsel for PLN and counsel for defendants shall jointly move for voluntary dismissal of the lawsuit.

ENTERED into the date set forth when executed below:

Plaintiff Prison legal News, Inc.:

_____________________________________

By counsel

Date

All Defendants and VDOC:

By the Assistant Attorney General

Date