Case 2:12-cv-00699-JRG Document 1 Filed 11/01/12 Page 1 of 8 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

PRISON LEGAL NEWS,

§

PLAINTIFF

§

§

v.

§

§

ANTHONY BETTERTON, individually and §

in his official capacity as Sheriff of Upshur §

County; JILL MCCOY, individually and in §

her official capacity as Lieutenant of Upshur §

County Jail, and UPSHUR COUNTY,

§

DEFENDANTS §

CIVIL ACTION NO. 2:12-cv-699

COMPLAINT

Prison Legal News (“PLN”) is non-profit organization that educates prisoners about their

legal rights. Defendants are wrongfully censoring PLN’s communication with prisoners

incarcerate at the Upshur County Jail.

STATEMENT OF CLAIMS

1. PLN brings this action to stop Defendants from censoring its mail in violation of its

rights to free speech and due process. PLN seeks injunctive and declaratory relief, along with

nominal, compensatory, and punitive damages.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 (federal

question), §1343 (civil rights), and §2201 (Declaratory Judgment Act). This Court has

supplemental jurisdiction to consider Plaintiffs’ state law claims pursuant to 28 U.S.C. §1367(a).

3. Venue is proper in this district pursuant to 24 U.S.C. §1391(b), as the events

complained of occurred in this district and division.

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PARTIES 4. PLN is a wholly owned subsidiary of the Human Rights Defense Center (HRDC), a non-profit, tax-exempt corporation. HRDC’s mission is centered on public education, prisoner education, and advocacy in support of basic human rights. PLN’s primary offices are in Brattleboro, Vermont. PLN publishes a monthly magazine distributed across the nation to prisoners, attorneys, judges, law libraries, and other subscribers. PLN also distributes books, specializing in self-help materials regarding prisoner’s rights and issues related to the criminal justice and corrections systems. 5. Defendant Anthony Betterton, Sheriff of Upshur County, is responsible for the policies, procedures, and operation of the Upshur County Jail. All his acts and omissions complained of herein were under color of state law. Betterton is the final policymaker for Upshur County. He is sued in his official capacity for injunctive and declaratory relief, and in his individual capacity for nominal, compensatory, and punitive damages. He can be served with process at 405 North Titus, Gilmer, TX 75644. Service is requested. 6. Defendant Jill McCoy is a lieutenant at the Upshur County Jail. All her acts and omissions complained of herein were under color of State law. She is a final policymaker for the Upshur County Jail. She is sued in her official capacity for injunctive and declaratory relief, and in her individual capacity for nominal, compensatory, and punitive damages. She can be served with process at the Upshur County Jail, 405 North Titus, Gilmer, TX 75644. Service is requested. 7. Upshur County is a political subdivision of the State of Texas. The County funds and operates the jail, employs and compensates the jail staff, and is charged with ensuring that, at all times, the jail remains in compliance with federal and state law. Upshur County can be served
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through its county judge, Dean Fowler at Uphsur County Courthouse 3rd Floor, 100 West Tyler St., Gilmer, TX 75644. Service is requested.
STATEMENT OF FACTS PLN Educates Prison and Jail Inmates 8. PLN publishes and distributes a 56-page legal information magazine addressing the rights of incarcerated people. The magazine has been published continuously since 1990. PLN has approximately 7,000 subscribers nationwide, including prisoners, attorneys, judges, public libraries, and members of the general public. PLN distributes the magazine to prisoners in approximately 2,200 correctional facilities across the United States. 9. The magazine is core-protected speech; it is not objectionable on security or other grounds. Each monthly issue of the magazine provides information about important legal issues, such as access to courts and counsel, disciplinary hearings, prison conditions, excessive force, mail censorship, jail litigation, visitation, access to telephones, religious freedom, prison rape, and the death penalty, among other topics. 10. PLN also distributes approximately fifty (50) books regarding the criminal justice system by other publishers. These books foster a better understanding of criminal justice policies and issues and allow prisoners to educate themselves about related issues. Defendants’ Censorship Policy is Not Narrow, Objective, or Definite 11. Upshur County Jail’s written inmate handbook contains no written criteria explaining when a publication will be rejected. It merely states: All periodicals, magazines, newspapers, and other similar items will be individually inspected. This inspection will be conducted to ensure these items do not contain restricted information and will be rejected on a case-by-case basis. All such materials must have prior approval to be received and must be mailed from the publisher to the inmate.
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12. The policy does not provide a sender any notice or explanation when Defendants
censor a book. Only a prisoner may file a written appeal of a censorship decision, not the sender.
Defendants Censor PLN’s Mail to Inmates
13. Beginning July 2011 and continuing to the present, PLN has been mailing its
magazine to inmates in the Upshur County Jail.
14. Subscribers to the magazine at Upshur County Jail are also sent copies of the
paperback book, Protecting Your Health and Safety: Prisoners’ Rights, published by the
Southern Poverty Law Center (SPLC). The book gives inmates information about their right to
medical care and protections against inhumane treatment.
15. Since July 2011, PLN has received returned copies of its monthly magazine and
books from the Upshur County Jail. Out of approximately 223 issues of PLN’s magazine sent
since July 2011, at least 86 issues were rejected and sent back. Many books have been returned s
the same way.
• In July 2011, PLN received eight returned copies of the magazine sent to prisoners at Upshur County Jail. Each magazine was officially stamped “Refused,” “Return To Sender” and “No Newspaper.” PLN also received one returned copy of Protecting Your Health and Safety, which was marked “RTS” (Return To Sender).
• In October 2011, PLN received a returned copy of the magazine sent to one of the prisoners at Upshur County Jail. The packaging was stamped with “Refused,” “Return To Sender” and “No Newspaper.”
• In January 2012, PLN received eighteen returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” PLN also received two returned copies of Protecting Your Health and Safety marked “RTS,” “Returned to Sender,” and “Refused.”
• In February 2012, PLN received seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused.”
• In March 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” Plaintiff also received three returned copies of Protecting Your Health and Safety. Each copy of the book was marked “RTS” and “Not Approved by Chief.”
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• In April 2012, PLN received twenty-seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused,” “Return To Sender” and/or “No Newspaper.”
• In June 2012, PLN received nine returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
• In July 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
• In August 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.” 16. After suspecting the books and magazines were being censored, PLN’s in-house
counsel sent personally addressed letters to individual prisoners to ask if they were receiving the magazine and books. These letters, despite being sent in envelopes marked “Special Mail: Legal Mail,” were returned to PLN, unopened, though the prisoners were still incarcerated at the Upshur County Jail.
PLN is not Given Due Process for Censorship Decisions 17. Defendants do not provide PLN with constitutionally adequate notice of the censorship of the magazine and books, 18. Likewise, Defendants do not provide PLN an opportunity to be heard or to contest Defendants’ censorship decisions. 19. On information and belief, Upshur County Jail officials, including Defendants, are not making individualized determinations about the content of each publication before censoring and excluding the material, in violation of the First Amendment. 20. Defendants’ censorship and exclusion of PLN magazine by Upshur County Jail officials, is arbitrary and void of any constitutionally valid standards or criteria.
Defendants’ Censorship Violates Free Speech Guarantees 21. Defendants know their policies and practices unconstitutionally violate PLN’s rights to free speech.
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22. Due to Defendants’ actions, PLN has suffered pecuniary loss of potential subscribers, customers, correspondents and supporters; diversion of resources; loss of reputation; and other damages to be shown at trial.
23. Due to Defendants’ actions, as described herein, PLN has suffered and will continue to suffer irreparable harm for which there is no adequate remedy at law.
CAUSE OF ACTION I – UNITED STATES CONSTITUTION FIRST AMENDMENT FREEDOM OF SPEECH
24. PLN has a constitutionally protected liberty interest in communicating with incarcerated people. This right is clearly established under existing case law.
25. Defendants’ censorship of PLN’s reading material is arbitrary, unrelated to any legitimate penological interest, and without any individualized determination based on content, in violation PLN’s free speech rights secured by the First and Fourteenth Amendments.
26. PLN’s right to communicate with prisoners through the mail is clearly established. Thus, Defendants Betterton and McCoy are not entitled to qualified immunity.
CAUSE OF ACTION II – TEXAS CONSTITUTION FREEDOM OF SPEECH 27. The Texas Constitution offers greater free speech protections than the U.S. Constitution. Article I, Section 8 guarantees: Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press… 28. Defendants’ policy requiring official approval of materials before they are passed on to inmates is an unconstitutional prior restraint on speech.
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CAUSE OF ACTION III – DUE PROCESS OF LAW 29. PLN has a right under the Fourteenth Amendment to receive notice when Defendants prevent PLN’s magazine and books from reaching prisoners, and to be given the opportunity to object. 30. Defendants’ policy does not provide notice or an opportunity to be heard before Defendants deprive PLN of its free speech rights, in violation of the Due Process Clause of the Fourteenth Amendment. 31. The right to due process before censorship is clearly established under decades of well-settled case law. As such, Betterton and McCoy are not entitled to qualified immunity.
DAMAGES 32. PLN seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech and due process rights under the First and Fourteenth Amendments for suppression of its political message; diversion of its resources; frustration of its organizational mission; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF 33. PLN requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF 34. PLN requests the Court enjoin Defendants from continuing to violate its free speech and due process rights. 35. Plaintiffs seek permanent injunctive relief requiring Defendants to provide written notice to senders and an opportunity to respond before censoring their mail, and requiring the adoption of specific guidelines delineating what materials may be delivered to prisoners though the mail, as well as any other appropriate injunctive relief.
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ATTORNEYS’ FEES AND COSTS 36. Pursuant to 42 U.S.C. § 1988, PLN is entitled to recover attorneys’ fees and litigation costs and expenses.
PRAYER FOR RELIEF THEREFORE, Prison Legal News requests the Court:
1. Declare that Defendants’ censorship policies and practices are unconstitutional; 2. Grant a preliminary and permanent injunction ordering Defendants to stop violating
Plaintiff’s rights to due process and free speech; 3. Award nominal, compensatory, and punitive damages against Defendants; 4. Grant reasonable attorneys’ fees, litigation expenses, and court costs pursuant to 42
U.S.C. §1988; and 5. Grant all other and further relief as appears reasonable and just, to which Plaintiffs may
be entitled. Dated: November 1, 2012.
Respectfully submitted, /s/ Brian McGiverin Brian McGiverin Texas Bar. No. 24067760 Scott Medlock Texas Bar No. 24044783 James C. Harrington Texas Bar No. 09048500 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Tel. (512) 474-5073 Fax (512) 474-0726 ATTORNEYS FOR PLAINTIFF
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 Case 2:12-cv-00699-JRG Document 2 Filed 11/01/12 Page 1 of 10 PageID #: 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

PRISON LEGAL NEWS,

§

PLAINTIFF

§

§

v.

§

§

ANTHONY BETTERTON, individually §

and in his official capacity as Sheriff of

§

Upshur County; JILL MCCOY,

§

individually and in her official capacity as §

Lieutenant of Upshur County Jail, and

§

UPSHUR COUNTY,

§

DEFENDANTS §

CIVIL ACTION NO. 2:12-cv-00699

PRISON LEGAL NEWS’ MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Prison Legal News (“PLN”) requests a preliminary injunction to stop

Defendants from censoring books and magazines PLN mails to inmates in the Upshur County

Jail. Defendants should be enjoined from violating PLN’s right to due process and underlying

rights to free speech under the First Amendment to the U.S. Constitution and Article I, Section 8

of the Texas Constitution.

I. DEFENDANTS CENSOR PLN’S PROTECTED COMMUNICATION WITH INMATES A. PLN Educates Prisoners – Core Protected Speech.

Communicating with prisoners is the core of PLN’s charitable mission. PLN publishes a

monthly 56-page educational magazine (“the magazine”) about the legal rights of incarcerated

people. The publication provides information about prison conditions, excessive force, prison

rape, etc. The magazine is core protected speech, which is not objectionable on security or other grounds.1 It has been published continuously since 1990.

1 A copy of the July 2011 issue, the first issue censored by the Upshur County jail, is attached as Exhibit A. The content of each issue is substantially similar. If the Court would benefit from examining each issue that was censored, PLN can supply copies to the court.

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PLN also distributes books about prisoners’ constitutional rights. PLN has approximately
7,000 subscribers nationwide, including subscribers incarcerated in Upshur County Jail.
B. Upshur County Jail Routinely Censors PLN’s mail.
Since July 2011, PLN has been sending the magazine, books and informational brochures
to prisoners in the Upshur County Jail. Each item of mail is individually addressed with postage
pre-paid.
Upshur County Jail routinely censors PLN’s mail. Since July 2011, PLN has received
returned copies of its monthly magazine and books from the Upshur County Jail. Out of
approximately 223 issues of PLN’s magazine sent since July 2011, at least 86 issues were
rejected and sent back. Many books have been returned the same way.
• In July 2011, PLN received eight returned copies of the magazine sent to prisoners at Upshur County Jail. Each magazine was officially stamped “Refused,” “Return To Sender” and “No Newspaper.” PLN also received one returned copy of Protecting Your Health and Safety, which was marked “RTS” (Return To Sender).
• In October 2011, PLN received a returned copy of the magazine sent to one of the prisoners at Upshur County Jail. The packaging was stamped with “Refused,” “Return To Sender” and “No Newspaper.”
• In January 2012, PLN received eighteen returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” PLN also received two returned copies of Protecting Your Health and Safety marked “RTS,” “Returned to Sender,” and “Refused.”
• In February 2012, PLN received seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused.”
• In March 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” Plaintiff also received three returned copies of Protecting Your Health and Safety. Each copy of the book was marked “RTS” and “Not Approved by Chief.”
• In April 2012, PLN received twenty-seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused,” “Return To Sender” and/or “No Newspaper.”
• In June 2012, PLN received nine returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
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• In July 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
• In August 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
C. Upshur County’s Mail Censorship Policy is Not Narrow, Objective, or Definite. Upshur County Jail’s inmate handbook contains no criteria to explain why a publication
will be rejected. It merely states:
All periodicals, magazines, newspapers, and other similar items will be individually inspected. This inspection will be conducted to ensure these items do not contain restricted information and will be rejected on a case-by-case basis. All such materials must have prior approval to be received and must be mailed from the publisher to the inmate.2
Upshur County Jail’s policy on incoming mail does not guarantee any notice to the
sender or any explanation when a book is censored. At most, returned items are stamped with a
brief notation on the front that says “Refused,” “Return to Sender,” “No Newspaper,” “Unable to
Forward,” or “Not Approved by Chief.” Only a prisoner may file a written appeal, not the sender.3
II. PLN IS ENTITLED TO A PRELIMINARY INJUNCTION
PLN is entitled to a preliminary injunction against Defendants’ censorship. A
preliminary injunction should be granted when a movant proves:
(1) Substantial likelihood of prevailing on the merits. (2) Substantial threat of suffering irreparable injury if the injunction is not granted. (3) The threatened injury to Plaintiff outweighs the threatened harm to the Defendants. (4) Granting the preliminary injunction will not disserve the public interest. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011).4 PLN satisfies all four elements.
2 Exhibit B, pp. 3-4, para 3. 3 Exhibit C, Upshur County Jail, Prisoner Rules of Conduct and Handbook. pp. 17-18 (as labeled in the footers). 4 Because Defendants are public actors, the third and fourth elements are properly considered together. See Speigel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. 1981).
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A. PLN is Substantially Certain to Prevail on Its Due Process and Free Speech Claims. PLN is substantially certain to prevail on the merits of its three claims.5 Defendants’
written policy offers PLN no due process before censoring its mailing, making it facially unconstitutional under the Fourteenth Amendment.
Further, PLN’s underlying First Amendment rights are being violated. Upshur County has instituted either a wholesale ban on PLN’s mail or created an ad hoc, wholly arbitrary custom and practice of rejecting random PLN mailings. Either method of censorship is unconstitutional.
B. PLN is Substantially Certain to Prevail on the Merits of Its Due Process Claim. PLN, as a publisher, has a well-established right to due process when jail authorities
reject its publications. At minimum, it is entitled to be notified that a publication will not be delivered and given an opportunity to respond. Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004); Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996); Prison Legal News v. Lehman, 397 F.3d 692, 701, (9th Cir. 2005) (“prison officials must provide minimum procedural safeguards to protect inmates’ interest in receiving mail by notifying inmates of their decision not to deliver letters”).
Upshur County Jail’s policy lacks any procedural safeguards to protect the First Amendment rights of those sending mail to inmates. The policy is devoid of any procedure by which the sender of censored mail will be notified. In practice, Defendants only provide notice of censorship if and when a censored magazine or book is returned to sender. When that happens, Defendants give no explanation of any purported justification for the censorship. Further,
5 For the Court to grant a preliminary injunction, PLN need only show a likelihood of success on the merits, not conclusively demonstrate it will prevail at trial. See Texas v. Camenisch, 451 U.S. 390, 395 (1981). The “likelihood of success” analysis is considerably less formal and is not binding on parties at trial. Id.
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Defendants’ written policy offers no appeal process for publishers and other outsiders whose mail has been censored.
Failure to provide constitutionally adequate notice, an opportunity to respond, and an opportunity to appeal violates PLN’s right to due process. The practice should be enjoined.
C. PLN is Substantially Certain to Prevail on the Merits of Its First Amendment Claim. The Supreme Court recognizes publishers have a First Amendment interest in access to
incarcerated people through the mail. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Courts around the country have held that PLN’s publications and mailings are deserving of First Amendment protection.6
PLN’s correspondence with prisoners addresses issues of corrections policy and other social and political matters of public concern. It is “core political speech.” Prison Legal News v. Cook, 238 F.3d 1145, 1146, 1149 (9th Cir. 2001) (“[PLN’s speech] is core protected speech, not commercial speech or speech whose content is objectionable on security or other grounds”). This type of speech “occupies the highest rung on the hierarchy of First Amendment values,” and is entitled to special protection. Connick v. Myers, 461 U.S. 138, 145 (1983) (internal citation omitted). Either a total ban of its mail, or the arbitrary exclusion of items of mail, would be unconstitutional.
(a) Total Bans on Mail are Unconstitutional A jail may not limit the Constitutional rights of an inmate except to the limited extent it is necessary to achieve a valid penological goal. Therefore, it may not institute wholesale exclusion of the types of publications inmates may receive (e.g. all magazines or all books)
6 See Prison Legal News v. Cook, 238 F.3d 1145, 1146, 1149 (9th Cir. 2001) (PLN’s monthly magazine, categorized as “subscription non-profit organization mail”, is protected speech under the First Amendment); Prison Legal News v. Lehman, 397 F.3d 692, 699-701 (9th Cir. 2005) (PLN’s “nonsubscription bulk mail and catalogs” are protected speech under the First Amendment); Prison Legal News v. Livingston, 683 F.3d 201, 213 (5th Cir. 2012) (unsolicited books sent by PLN are protected speech under the First Amendment).
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because wholesale bans are neither limited to publications actually warranting censorship nor do they offer publishers like PLN an alternative means to exercise their First Amendment rights.7
In both prisons and jails, many courts issue injunctions halting wholesale bans. See, e.g. Prison Legal News v. Lehman, 397 F.3d 692, 699-700 (9th Cir. 2005) (prison’s ban on nonsubscription bulk mail and catalogs unconstitutional); Mann v. Smith, 796 F.2d 79, 82 (5th Cir. 1986) (county jail’s policy of banning newspapers and magazines violated pretrial detainee's First Amendment rights); Jacklovich v. Simmons, 392 F.3d 420, 428 (10th Cir. 2004); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982).
(b) Arbitrary Censorship of Mail is Unconstitutional To the extent a prison or jail may enact policies limiting First Amendment rights, those policies must be rational. See Mayfield v. Tex. Dep’t of Criminal Justice, 529 F.3d 599, 607 (5th Cir. 2008) (“[R]ationality is the controlling factor”). Upshur County’s arbitrary rejection of PLN’s mail is not rational. Out of approximately 200 issues of PLN’s magazine sent over the course of one year, at least sixty-two issues were rejected and sent back to PLN, along with other books and letters. The issues of PLN’s magazine are all substantially the same – though the content of each issue is different, the magazine largely addresses the same issues and themes each month. Rejecting random magazines – or rejecting a book one day and permitting it another – is arbitrary censorship. It is not a rational restriction of First Amendment rights for the achievement of a penological goal and is therefore unconstitutional. D. PLN is Substantially Certain to Prevail on the Merits of its Texas Constitutional Claim.
7 “In assessing the ‘reasonableness’ of a prison regulation that infringes on First Amendment interests, a court must consider four factors: (1) whether the regulation is ‘rationally related’ to a legitimate penological goal; (2) whether alternative means of exercising First Amendment rights remain open; (3) the impact that accommodating the asserted right will have on other prisoners and prison employees; and (4) whether there are easy and obvious alternative means of accommodating the asserted right” See Prison Legal News v. Livingston, 683 F.3d 201, 214 (5th Cir. 2012).
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The Texas Constitution provides greater protection for free speech than the U.S. Constitution. Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex. 1992). Under the Texas Constitution, prior restraints on speech are presumptively unconstitutional. Id.
A law or policy that limits speech by requiring government permission before expression is a prior restraint. Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 131 (1992). Accord Kaczmarek v. State, 986 S.W.2d 287, 290 (Tex.App.–Waco 1999) (no pet.) (an ordinance granting an administrator authority to grant or deny a permit for expressive conduct, without standards limiting discretion, is a form of prior restraint).
Defendants’ policy to inspect all “periodicals, magazines, newspapers” mailed to inmates, and requiring they be approved before an inmate may receive them, is a prior restraint.
Prior restraints fall on speech with a brutality and a finality all their own.... [T]he violator of a statute punishing speech criminally knows that he will go before a jury, and may be willing to take his chance, counting on a possible acquittal. A prior restraint, therefore, stops more speech more effectively. A criminal statute chills, prior restraint freezes. Davenport, 834 S.W.2d at 9 n. 14 (citing Alexander M. Bickel, The Morality of Consent 61 (1975)). It is unconstitutional for Defendants to exercise prior restraint without narrow, objective, or definite criteria to restrain administrators’ discretion. III. PLN Will Suffer Irreparable Injury Without an Injunction PLN will suffer immediate and irreparable injury if this Court does not prevent Defendants from censoring its mailings while denying PLN the opportunity to respond or appeal. For harm to be “imminent,” there must be “a reasonable probability that a real injury... will occur if the injunction is not granted.” See United States v. Emerson, 270 F.3d 203, 262 n.64 (5th Cir. 2001) (internal quotations omitted). For a harm be “irreparable,” it must be an injury that cannot be undone through monetary damages. Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981).
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A. PLN’s Harm is Imminent The harm that Defendants are causing PLN is not just imminent, but ongoing. Defendants have censored PLN’s mail without due process since July 2011. Pursuant to their written policies, they will continue to do so.
B. PLN’s Harm is Irreparable PLN’s loss of due process is an irreparable harm. Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992) (plaintiffs established irreparable injury by demonstrating their rights to Fourth and Fifth Amendment protection were violated). Defendants have censored PLN’s mail since at least July 2011, if not earlier. At no time have they given PLN due process. Further, PLN relies on its ability to send its publications through the mail to communicate with inmates. By actively censoring mail sent by PLN to inmates, Defendants have effectively cut off PLN’s only line of communication to people housed in Upshur County Jail. “The loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction.” Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009). A preliminary injunction is necessary to stop the continuing violation of PLN’s constitutional rights to free speech and due process. Every day this preliminary injunction is not granted, PLN suffers irreparable injury. IV. Granting an Injunction Would Serve the Public Interest; Injury to PLN Outweighs Harm to Defendants. Because Defendant Upshur County is a public institution and Defendants Sheriff Betterton and Lieutenant McCoy are public servants, the third and fourth elements are properly considered together. See Speigel v. City of Houston, 636 F.2d 997, 1002 (5th Cir. 1981). When evaluating the balance of harm between parties for the purposes of a preliminary injunction, a defendant government entity must show a quantifiable harm, not just a generalized
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interest in exercising its police power.8 Defendants cannot show they would suffer a quantifiable harm from a preliminary injunction.
The issuance of a preliminary injunction would not adversely affect the public interest, either. “No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.” ACLU v. Reno, 929 F.Supp. 824, 851 (E.D.Pa. 1996). “Concomitantly, there can be no irreparable harm to a municipality when it is prevented from enforcing an unconstitutional statute because it is always in the public interest to protect First Amendment liberties.” Joelner v. Village of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)).
The public has a strong interest in assuring that constitutional rights are respected. Cohen v. Coahoma County, Miss., 805 F.Supp. 398, 408 (N.D.Miss. 1992). The public interest would be protected, not harmed, by a preliminary injunction. V. PLN Should Not Be Required to Post More Than a Minimal Bond.
PLN requests it not be required to post bond if the preliminary injunction is granted. It is within the Court’s discretion to require posting security for a preliminary injunction. City of Atlanta v. The Metropolitan Area Rapid Transit Authority, 636 F.2d 1084, 1094 (5th Cir. 1981); BellSouth Telecommunications, Inc. v. MCIMetro Access Transmission Services, LLC, 425 F.3d 964, 971 (11th Cir. 2005).
PLN is a nonprofit organization dedicated to the charitable mission of education. Its financial means are limited. Furthermore, the purpose of posting a bond is to “pay the costs and
8 Compare Villas at Parkside Partners v. City of Farmers Branch, 496 F.Supp.2d 757, 776-77 (N.D. Tex. 2007) (noting that the city had failed to identify any specific, quantifiable harm that it would suffer as a result of the preliminary injunction) with Lee v. Commissioners' Court of Jefferson County, 81 F.Supp.2d 712, 717 (E.D. Tex 2000) (finding that defendant city would suffer significant harm from the preliminary injunction in the form of rising construction costs, increased financing costs, and the cost required to arrange the bond issue a second time).
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damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. Rule Civ. Proc. 65(c). City of Atlanta, 636 F.2d at 1094. As noted above, Defendants do not stand to suffer any quantifiable costs or damages if the preliminary injunction is issued, and would therefore receive no benefit if a bond were posted.
PLN respectfully requests the Court exercise its discretion and not require posting a bond. CONCLUSION
PLN requests the Court issue a preliminary injunction against Defendants, prohibiting them from continuing to enforce the publication ban at the Upshur County Jail during the pendency of this case. Dated: November 1, 2012.
Respectfully submitted, /s/ Brian McGiverin Brian McGiverin Texas Bar. No. 24067760 Scott Medlock Texas Bar No. 24044783 James C. Harrington Texas Bar No. 09048500 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Tel. (512) 474-5073 Fax (512) 474-0726 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been served on all counsel of record through the Electronic Case Files System of the Eastern District of Texas. /s/ Brian McGiverin Brian McGiverin
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 Case 2:12-cv-00699-JRG Document 69 Filed 10/07/13 Page 1 of 11 PageID #: 869

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

PRISON LEGAL NEWS,

§

§

Plaintiff,

§

§

v.

§

§

ANTHONY BETTERTON, individually §

and in his official capacity as Sheriff of

§

Upshur County; JILL McCAULEY,

§

individually and in her official capacity as §

Lieutenant of the Upshur County Jail; and §

UPSHUR COUNTY, TEXAS,

§

§

Defendants.

§

Case No. 2:12-CV-699-JRG JURY

PLAINTIFF’S SECOND AMENDED COMPLAINT Prison Legal News (“PLN”) is non-profit organization that educates prisoners about their legal rights. Defendants are wrongfully censoring PLN’s communication with prisoners incarcerated at the Upshur County Jail, violating PLN’s First Amendment right to freedom of speech and the press, and provide no notice or any method for appealing this censorship in violation of PLN’s Fourteenth Amendment due process rights.
STATEMENT OF CLAIMS 1. PLN brings this action to stop Defendants from censoring its mail in violation of its rights to free speech, freedom of the press, and due process, to change Upshur County’s policy to comply with constitutional guarantees, and to compensate PLN for past damages. PLN seeks injunctive and declaratory relief, along with compensatory, nominal, and punitive damages.

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JURISDICTION AND VENUE 2. This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 (federal question), §1343 (civil rights), and §2201 (Declaratory Judgment Act). This Court has supplemental jurisdiction to consider Plaintiffs’ state law claims pursuant to 28 U.S.C. §1367(a). 3. Venue is proper pursuant to 24 U.S.C. §1391(b), as the events complained of occurred in this district and division.
PARTIES 4. PLN is a wholly owned subsidiary of the Human Rights Defense Center (“HRDC”), a non-profit, tax-exempt corporation. HRDC’s mission is centered on public education, prisoner education, and advocacy in support of basic human rights. PLN’s primary offices are in Lake Worth, Florida. PLN publishes a monthly magazine distributed across the nation to prisoners, attorneys, judges, law libraries, and other subscribers. PLN also distributes books, specializing in self-help materials regarding prisoner’s rights and issues related to the criminal justice and corrections systems. 5. Defendant Anthony Betterton, Sheriff of Upshur County, is responsible for the policies, procedures, and operation of the Upshur County Jail. All his acts and omissions complained of herein were under color of state law. Betterton is the final policymaker for Upshur County. He is sued in his official capacity for injunctive and declaratory relief, and in his individual capacity for compensatory, nominal, and punitive damages. The official policy of the Upshur County Jail, along with the custom and practices of the Jail Staff persons pursuant to Defendant Betterton’s command and instruction, were the moving force that caused the constitutional violations alleged herein. 6. Defendant Jill McCauley is a lieutenant at the Upshur County Jail. All her acts and omissions complained of herein were under color of State law. She is a final policymaker
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for the Upshur County Jail. She is sued in her official capacity for injunctive and declaratory relief, and in her individual capacity for compensatory, nominal, and punitive damages. The official policy of the Upshur County Jail, along with the custom and practices of the Jail Staff persons pursuant to Defendant McCauley’s command and instruction, were the moving force that caused the constitutional violations alleged herein.
7. Upshur County is a political subdivision of the State of Texas. The County funds and operates the jail, employs and compensates the jail staff, and is charged with ensuring that, at all times, the jail remains in compliance with federal and state law. Upshur County is sued for compensatory damages as well as injunctive and declaratory relief.
STATEMENT OF FACTS PLN Educates Prison and Jail Inmates 8. PLN publishes and distributes Prison Legal News, a 64-page legal information magazine addressing the rights of incarcerated people. The magazine has been published continuously since 1990. PLN has approximately 7,000 subscribers nationwide, including prisoners, attorneys, judges, public libraries, and members of the general public. PLN distributes the magazine to prisoners in approximately 2,200 correctional facilities across the United States, including institutions within the Federal Bureau of Prisons and prisons and jails in all 50 states. Prison Legal News also is distributed to prisoners housed in death row units and “supermax” prisons, including the federal Administrative Maximum Facility (“ADX” or “Supermax”) at Florence, Colorado, the most secure prison in the United States. More than 1 million copies of Prison Legal News have been distributed over the past 23 years. 9. The magazine is core-protected speech; it is not objectionable on security or other grounds. Each monthly issue of the magazine provides information about important legal issues, such as access to courts and counsel, disciplinary hearings, prison conditions, excessive force,
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mail censorship, jail litigation, visitation, access to telephones, religious freedom, prison rape, and the death penalty, among other topics.
10. PLN also distributes approximately fifty different books regarding the criminal justice system by a variety of publishers. These books foster a better understanding of criminal justice policies and issues and allow prisoners to educate themselves about the law and related issues.
Defendants’ Censorship Policy is Not Narrow, Objective, or Definite 11. Prior to revisions adopted in September 2013, Upshur County Jail’s written inmate handbook contained no written criteria explaining when a publication will be rejected. It merely stated: All periodicals, magazines, newspapers, and other similar items will be individually inspected. This inspection will be conducted to ensure these items do not contain restricted information and will be rejected on a case-by-case basis. All such materials must have prior approval to be received and must be mailed from the publisher to the inmate. 12. The policy does not provide a sender any notice or explanation when Defendants censor a publication. Only a prisoner may file a written appeal of a censorship decision, not the sender.
Defendants Censor PLN’s Mail to Inmates 13. Beginning in July 2011 and continuing to the present, PLN has been mailing its magazine to inmates in the Upshur County Jail. 14. Individual detainees at Upshur County Jail were also sent copies of the paperback book, Protecting Your Health and Safety: A Litigation Guide for Inmates, published by the Southern Poverty Law Center. The book gives inmates information about their rights to medical care and protection against inhumane treatment.
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15. Since July 2011, PLN has received returned copies of its individually addressed
monthly magazine, letters to prisoners, renewal subscription letters, brochures, books and other
mail from the Upshur County Jail. Many other issues were never delivered and never returned.
Many books have been returned the same way. In sum, as many as 350 items of mail sent by
PLN to Upshur County inmates were wrongfully rejected and not delivered to inmates.
 In July 2011, PLN received eight returned copies of the magazine sent to prisoners at Upshur County Jail. Each magazine was officially stamped “Refused,” “Return To Sender” and “No Newspaper.” PLN also received one returned copy of Protecting Your Health and Safety, which was marked “RTS” (Return To Sender).
 In October 2011, PLN received a returned copy of the magazine sent to one of the prisoners at Upshur County Jail. The packaging was stamped with “Refused,” “Return To Sender” and “No Newspaper.”
 In January 2012, PLN received eighteen returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” PLN also received two returned copies of Protecting Your Health and Safety marked “RTS,” “Returned to Sender,” and “Refused.”
 In February 2012, PLN received seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused.”
 In March 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each issue was stamped “Refused.” Plaintiff also received three returned copies of Protecting Your Health and Safety. Each copy of the book was marked “RTS” and “Not Approved by Chief.”
 In April 2012, PLN received twenty-seven returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was stamped “Refused,” “Return To Sender” and/or “No Newspaper.”
 In June 2012, PLN received nine returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
 In July 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
 In August 2012, PLN received five returned copies of the magazine sent to prisoners at Upshur County Jail. Each of these issues was marked “Refused.”
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This pattern of rejection is ongoing. Copies of Prison Legal News mailed in July 2013 were rejected and returned to PLN in August and September 2013.
16. After suspecting the books and magazines were being censored, PLN’s in-house counsel sent personally addressed letters to individual prisoners to ask if they were receiving the magazine and books. These letters, despite being sent in envelopes marked “Special Mail” and “Legal Mail,” were returned to PLN, unopened, though the prisoners were still incarcerated at the Upshur County Jail.
17. Defendants censored PLN’s mailings under a blanket “no newspapers” policy, prohibiting the delivery of any newspaper to inmates. This policy rejects all newspapers mailed to inmates, as well as all other publications printed on newsprint. Defendants make no individualized determination regarding the contents of the publications before arbitrarily rejecting them.
PLN is not Given Due Process for Censorship Decisions 18. Defendants do not provide PLN with constitutionally adequate notice of the censorship of the magazine and books. 19. Likewise, Defendants do not provide PLN an opportunity to be heard or to contest Defendants’ censorship decisions. 20. On information and belief, Upshur County Jail officials, including Defendants, are not making individualized determinations about the content of each publication before censoring and excluding the material, in violation of the First Amendment. 21. Defendants’ censorship and exclusion of PLN magazine by Upshur County Jail officials is arbitrary and void of any constitutionally valid standards or criteria.
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Defendants’ Censorship Violates Free Speech and Press Guarantees 22. Defendants know their policies and practices unconstitutionally violate PLN’s rights to free speech. 23. Due to Defendants’ actions, PLN has suffered pecuniary loss of potential subscribers, customers, correspondents and supporters; diversion of resources; frustration of mission; loss of reputation; suppression of its political message and other damages to be shown at trial. 24. Due to Defendants’ actions, as described herein, PLN has suffered and will continue to suffer irreparable harm for which there is no adequate remedy at law. Defendants’ Revised September 2013 Correspondence Plan Continues to Violate Free Speech
and Press Guarantees and Fails to Give Due Process for Censorship Decisions 25. In September 2013, Defendants claimed that they adopted a revised “Correspondence Plan.” The revised Correspondence Plan, while an improvement on Defendants’ former policies, still falls short of the Constitutional requirements for several reasons, including, but not limited to: (1) the blanket “no newspaper” policy still exists; (2) Defendants continue to enforce an unconstitutional pre-approval requirement for publications; and (3) the revised Correspondence Plan lacks sufficiently detailed appeal procedures.
FIRST CAUSE OF ACTION – UNITED STATES CONSTITUTION FIRST AMENDMENT – FREEDOM OF SPEECH
26. PLN has a constitutionally protected liberty interest in communicating with incarcerated people. This right is clearly established under existing case law.
27. Defendants’ censorship of PLN’s reading material is arbitrary, unrelated to any legitimate penological interest, and without any individualized determination based on content, in violation PLN’s free speech and press rights secured by the First and Fourteenth Amendments.
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28. PLN’s right to communicate with prisoners through the mail is clearly established, as are the constitutional deficiencies in Defendants’ prior and current mail policies. Thus, Defendants Betterton and McCauley are not entitled to qualified immunity.
SECOND CAUSE OF ACTION – TEXAS CONSTITUTION FREEDOM OF SPEECH
29. The Texas Constitution offers greater free speech protections than the U.S. Constitution. Article I, Section 8 guarantees:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press... 30. Defendants’ policy requiring official approval of materials before they are passed on to inmates is an unconstitutional prior restraint on speech.
THIRD CAUSE OF ACTION– DUE PROCESS OF LAW 31. PLN has a right under the Fourteenth Amendment to receive notice when Defendants prevent PLN’s magazine and books from reaching prisoners, and to be given the opportunity to object. 32. Defendants’ policy does not provide notice or an opportunity to be heard before Defendants deprive PLN of its free speech and press rights, in violation of the Due Process Clause of the Fourteenth Amendment. 33. The right to due process before censorship is clearly established under decades of well-settled case law, as are the constitutional deficiencies in Defendants’ mail policies. As such, Betterton and McCauley are not entitled to qualified immunity.
DAMAGES 34. PLN seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech, press, and due process rights under the First and Fourteenth
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Amendments for suppression of its political message; diversion of its resources; frustration of its organizational mission; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF 35. PLN requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF 36. PLN requests the Court permanently enjoin Defendants from continuing to violate its free speech and due process rights. 37. PLN seeks permanent injunctive relief requiring Defendants to provide written notice to senders and an opportunity to respond before censoring their mail, and requiring the adoption of specific, constitutionally sufficient guidelines delineating what materials may be delivered to prisoners though the mail, as well as any other appropriate injunctive relief.
ATTORNEYS’ FEES AND COSTS 38. Pursuant to 42 U.S.C. § 1988, PLN is entitled to recover attorneys’ fees and litigation costs and expenses.
JURY DEMAND 39. In accordance with Federal Rule of Civil Procedure 38(b), PLN demands a trial by jury on all issues so triable.
PRAYER FOR RELIEF THEREFORE, Prison Legal News requests the Court:
1. Declare that Defendants’ censorship policies and practices are unconstitutional; 2. Grant a permanent injunction ordering Defendants to stop violating Plaintiff’s rights to due process and free speech and press, requiring Defendants to provide written notice to senders and an opportunity to respond before censoring their mail, and requiring the adoption of
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specific, constitutionally sufficient guidelines delineating what materials may be delivered to

prisoners though the mail;

3. Award compensatory, nominal, and punitive damages against Defendants;

4. Grant reasonable attorneys’ fees, litigation expenses, and court costs pursuant to

42 U.S.C. §1988; and

5. Grant all other and further relief as appears reasonable and just, to which PLN

may be entitled.

Dated: October 7, 2013

Respectfully submitted,

/s/ Sean W. Kelly Thomas S. Leatherbury
Texas Bar No. 12095275 Sean W. Kelly
Texas Bar No. 24065550 Kimberly R. McCoy
Texas Bar No. 24079492 Marissa A. Wilson
Texas Bar No. 24075626 VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2975 Telephone: 214.220.7720 Facsimile: 214.999.7720 tleatherbury@velaw.com skelly@velaw.com kmccoy@velaw.com mwilson@velaw.com

Scott Medlock Texas Bar No. 24044783
Brian McGiverin Texas Bar No. 24067760
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Telephone: 512.474.5073 Facsimile: 512.474.0726 smedlock@texascivilrightsproject.org brian@texascivilrightsproject.org

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Lance T. Weber Admitted Pro Hac Vice
HUMAN RIGHTS DEFENSE CENTER P.O. Box 1151 Lake Worth, FL 33460 Telephone: 561.360.2523 Facsimile: 866.228.1681 lweber@hrdc-law.org Attorneys for Plaintiff Prison Legal News CERTIFICATE OF SERVICE I hereby certify that on the 7th day of October, 2013, a true and correct copy of the foregoing document was served by the notice of electronic filing generated by the Court’s CM/ECF system. /s/ Sean W. Kelly
US 2121201.1
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 Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 1 of 15 PageID #: 810

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

PRISON LEGAL NEWS, Plaintiff,
v. ANTHONY BETTERTON, et al.,
Defendants

§ § § § § § CASE NO. 2:12-CV-00699-JRG § § § §

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintif f Prison Legal News’s (“PLN”) Motion f or Prelim inary

Injunction (Dkt. No. 2), filed November 1, 2012. The Court havi ng fully considered the sam e

finds that the Motion should be GRANTED IN P ART AN D DE NIED IN PART for t he

reasons set forth below.

I. BACKGROUND

Plaintiff alleges ongoing violations of its rights under the First and Fourteenth

Amendments to the United States Constitu tion as well as its rights under Ar ticle I, Section 8 of

the Texas Constitution. The underlying facts are as follows:

Plaintiff publishes Prison Legal News , a m onthly m agazine about the legal rights of

incarcerated persons, as well as books about pr isoners’ rights. Defendant s adm inister or are

otherwise responsible for the Upshur County Jail (“UC J” or the “Jail”). In the past, PLN has sent

its publications to inm ates at UCJ and intends to continue sending its publications there in the

future.

Some portion of PLN’s m ail to UCJ inm ates does not reach its intended recipients. PLN

claims that since July 2011, PL N has received return ed copies of its m agazines and books,

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variously stamped with phrases such as “Refus ed,” “Returned to Sender,” “No Newspaper,” and
“RTS” (Dkt. No. 23, at 6). The reaso ns for these returns are unclear. PLN claims that the returns
evince a po licy of eith er total pro hibition of communications, content- based censorship, or
arbitrary censorship (Dkt. No. 2, at 4-6). Defen dants con tend that they “have nev er rejected a
PLN publication due to its conten t, or otherwise censored P LN’s publications in any way” (Dkt.
No. 26, at 3). They claim that they routinely deliver PLN publications to UCJ inm ates, but
suggest inherently that P LN publications are often retu rned because the recip ients either refuse
delivery or, given the transient nature of jail populations, no longer reside in the UCJ. Id., at 4.
Prior to Septem ber 2013, PLN’s corres pondence with UCJ inm ates was governed
according to the following written Jail policy:
All other mail will be censored and inspected by correctional staff. Should any of these contain inflammatory writings, plans of escape, manufacture of drugs, weapons, or explosives, that would encourage deviant crim inal sexual behavior, or otherwise lessen jail se curity, the inf ormation will be f orwarded to the Ja il Adm inistrator. In the even t this m aterial c ontains restric ted information, the Sheriff will be advised as well as possible intervention by the Disciplinary Board. All per iodicals, m agazines, newsp apers, and other s imilar item s will be individually inspected. This inspection will be conducted to ensure these items do not contain restricted inform ation and will b e rejected o n a case by case basis. All such materials must have prior approval to be r eceived and must be mailed from the publisher to the inmate. (Dkt. No. 2-2, at 3-4). T he UCJ Prisoner Rule s of Conduct and Handbook further specifies that
“[t]he final say as to what will and will not be accepted lies with the Jail Adm inistrator in
conjunction with the jail’s legal counsel. Sh ould you wish to appeal the Jail Lieutenant’s
decision, you may do so by filing a written requ est” (Dkt. No. 2-3, at 13). The Jail’s policy prior
to Septem ber 2013 contained no provision for notice to either the sender or the recipient of
censored mail, and no suggestio n of a process by which the se nder of m ail (rath er than the
recipient) could appeal the Jail official’s decisions. 2

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In September 2013, and after the present reque st for a prelim inary injunction was filed,

UCJ a mended its Correspondence Policy. The new policy provides som ewhat more detailed

standards for censoring m ail’s con tent and sk etches p rocedures for notice and appeal with

respect to both senders and recipients:

Some correspondence may be rejected, on a case-by-case basis, provided it falls under one of the following definitions:

a. Material th at con tains inform ation regarding the m anufacture of explosives, weapons, or drugs;

b. Material that a reasonab le person would constru e as written solely f or the purpose of communicating inform ation designed to achieve the breakdown of jails through inmate disruption such as strikes or riots;

c. Material for which a specific factual determination has been made that it is de trimental to inm ate’s rehabilitation because it would e ncourage deviant, crim inal, or sexual behavi or or otherwise be adverse to legitimate penological interests.

The Sheri ff, Chi ef Dep uty, or Jail Ad ministrator will be the autho rity to consider appeals or rejected mail listed under c.

The inmate and the sender will b e informed of any re jection of mail and the reason for rejection. A ny rejected m ail will be retained and filed in the inmate’s personal property file. Each publication will be acc epted or r ejected individually.

. . . .

. . . . All m ail coming from or being sent to the general publ ic can be opened and read. If contraband is found it may be confiscated and th e inmate advised of this action. . . .

Outgoing and incom ing non-privileged correspondence m ay be censored provided a legitim ate penological intere st exists. A copy of the original correspondence should be retained.

(Dkt. No. 42-1, at 6-7). UCJ officials have

agreed to “abide by and enfor ce” the new

Correspondence Plan, and have no pl ans to revive the previous policies (Dkt. No. 42-1, at 3).

Defendants claim that the new Correspondence Plan moots Plaintiff’s Motion for a Prelim inary

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Injunction; Plaintiffs contend th at their m otion remains meritorious eve n despite th e change in Jail policy. II. LEGAL STANDARDS
The Court may grant a preliminary injunction to prevent imminent harm to a party. In order to m erit a prelim inary in junction, a plaintiff m ust prove: (1) a substantial likelihood of success on the m erits, (2) a substan tial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that th e grant of an injunction will not disserve the public interest. Janvey v. Alguire , 647 F.3d 585, 595 (5th Cir. 2011). W hen the injunction is sought against “public institutions and public serv ants” the third and fourth prongs of this test m ay blend into a single public interest analysis. Spiegel v. City of Houston , 636 F.2d 997, 1002 (5th Cir. Unit A Feb. 1981).
The First Amendment to the United States Constitution guarantees freedom of speech and of the press. U.S. CONST., amend. I. “Publishers who wish to comm unicate with those who, through subscription, w illingly seek their point of view have a legitim ate First Am endment interest in a ccess to pr isoners.” Thornburgh v. Abbott , 490 U.S. 401, 408 (1989). Regulations affecting the sending of a publication are analy zed under a deferential but “not toothless” reasonableness standard. Id. at 413-14 (citing Turner v. Safley , 482 U.S. 78, 89 (1987). Restrictions on these rig hts must be “reasonably related to legitimate penological interests,” and those interests m ust be “unrelated to the supp ression of expression.” Id. at 404, 415 (quoting Turner, 482 U.S. at 89, and Procunier v. Martinez, 416 U.S. 396, 413 (1974)).
Under the Fourteen th Am endment to the Un ited S tates Constitu tion, no Sta te m ay “deprive any person of life, liberty, or property, without due process of law.” U .S. CONST.,
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amend. XIV. Here, where both send ers’ and recipients’ First Am endment rights are at stake, the Fifth Circuit has recognized due process requi rements for “notice and an opportunity to be heard” with respect to each. Prison Legal News v. Livingston, 683 F.3d 201, 222 (5th Cir. 2012); accord Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004); Prison Legal News v. Cook , 238 F.3d 1145, 1152-53 (9th Cir. 2001); Montcalm Publ’g Co. v. Beck , 80 F.3d 105, 109 (4th Cir. 1996). These procedural protections need not extend to dupl icative determinations of parties’ rights, but m ay require that parties objecting to censorship be allowed to participate in any appeals process. See Livingston, 683 F.3d at 223-24.
The Texas Constitution’s free speech provisions extend further than the First Amendment to the United States Constitu tion. See Davenport v. Garcia , 834 Sw.2d 4, 10 ( Tex. 1992). Plaintiff suggests that the Jail’s Corresponden ce Plan effects a prior restraint on speech, presumptively prohibited by the Texa s Constitution (Dkt. N o. 2, at 7) . No authority known to the Court suggests that such a result would be c onsistent with Texas law. In the absence of authority to the con trary, it s eems only reasonable to as sume that the provisions of the United States and Texas Constitu tions sh ould be in terpreted in parallel; which this Court now undertakes to do. III. ANALYSIS
The evidence suggests that at least som e of PLN’s corresponden ce with prisoners has been withhe ld f rom its intended re cipients, dep riving Plain tiff of its F irst Am endment rights without due process of law. Though a clear im provement over the past, the Court believes that UCJ’s revised Correspondence Plan still falls short of establishing th e m inimum procedural safeguards c onstitutionally requir ed to protec t PLN’s First and Fourtee nth Am endment rights.
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Accordingly, in the Court’s view, PLN is likely to prevail on the merits of its case; UCJ’s current policy threatens imm inent and irreparable harm ; and the balance of equitie s tilts c learly toward an injunction. Such being the case, the Court finds that a preliminary in junction is appropriate here.
A. Likelihood of Prevailing on the Merits 1. Due Process Arguments
Plaintiff claim that Defendants dep rived th em of their First Am endment rights without due process of law. The Court finds that for purposes of this prelim inary injunction, PLN has carried its burden with respect to these claims.
PLN has introduced into the record UC J’s written policies gove rning correspondence prior to Sep tember 2013 (Dkt. No. 2-2, 2-3). Thes e policies are unco nstitutional, in that they allowed Jail employees to censor PLN’s correspondence without notifying PLN or allowing PLN an opportunity to be heard. See Livingston, 683 F.3d at 222. Even the inmates’ right to appeal such censorship was tenuous at be st, since no then-existing pol icy required prisoners to be notified when their mail was withheld. Under these policies, any interference with PLN’s right to communicate with inm ates worked an unconstitu tional deprivation of PLN’s rights under the First Amendment and the Due Process Clause of the Fourteenth Amendment.
PLN avers that it has of ten sent mailings to UCJ inm ates that have never reached their intended recipients (Dkt. No. 23, at 5-6). To substantiate its cl aim that UCJ policies prevented PLN from communicating with inm ates, it of fers the declaration of Devadus Nelson (Dkt. No. 29-1),1 an inm ate at UCJ, who subscribes to PL N but at least four tim es has not received
1 Defe ndants s ee a “stark c ontrast” bet ween the “whole sale v iolation[s]” alleg ed by Plain tiff and th e “on e declaration” offered as evide nce before the Court (D kt. No. 30, at 2). However, Plaintiff apparently sought to take more declarations but was refused access by jail officials (Dkt. No. 29, at 5 n.3).
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requested issues. 2 Moreover, som e PLN publi cations have been returned to PLN bearing markings such as “No Newspaper”—a stam p th at clearly suggests the interpos ition of UCJ policy between communicating parties (Dkt. No. 23, at 6). These facts are sufficient to establish, to the Court’s satisfaction, that UCJ has deprived PLN of its First Amendment rights without due process of law.
To counter this evidence, Defendants offer the declaration of Defendant McCauley, who claims that “no copy of Prison Legal News has been rejected by the Ja il due to its content, and neither I no r the Sher iff’s Office has made any determination that Prison Legal News should be rejected as a prohibited publication” (Dkt. No. 26-1, at 2). This declaration, however, is not inconsistent with depriv ations of PLN’s rights: the issue, from a Due Pr ocess standpoint, is not why PLN’s publications were rejected—the issue is whether UCJ rejected PLN publications at all, and, if so, under what pro cedures. Any rejection of prisone rs’ m ail—even rejections not based on content—requires adequate procedural safeguards under the Constitution.
McCauley further suggests, but does not declare, that PLN’s mail was rejected for benign reasons. Id. However, her explanations are wholly conjectural. That alone is enough for the Court to find for Plaintiffs here. Additionally, when McCauley’s explanations are read in light of Nelson’s declaration, they are even more wanting. First, Nelson’s declaration directly casts doubt on the idea that prisoners are refusing delivery of Prison Legal News en masse. Nelson avers that he affirmatively subscribed to PLN, and wanted to read the publication, but did not receive his copy (Dkt. No. 29-1, at 2). Second, PLN claims th at m any of its returned publications were stamped “No Newspapers” (Dkt. No. 23, at 6). Th is stamp, though cryptic, suggests a policy that
2 Defendants suggest that either Mr. Nelson is lying or that PLN might not have sent Nelson his missing issues (Dkt. No. 30, at 2-3). Given the volume of mail returned to PLN and the inadequacy of UCJ’s correspondence procedures, the Cou rt fi nds it more lik ely th at UCJ failed to d eliver Prison Lega l News to Mr. Nelson th an that PLN—a company in the business of delivering its mail to readers—failed to mail it. Moreover, it sees no reason not to credit Mr. Nelson’s sworn statement in the absence of any evidence in contradiction.
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Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 8 of 15 PageID #: 817

goes beyon d m ere pris oner unava ilability or r efusal and r eveals m ovement by UCJ into th e

territory of material interference with communicative rights. In ligh t of this evidence, the Court

finds it p robable that P laintiff will p revail on its Due Process claims, at least with r espect to its

actions before September of 2013.

Without doubt, UCJ’s recently p romulgated Correspon dence Plan is a significant

improvement on the Jail’s previous policies. It explicitly requires that both “[t]he inmate and the

sender will be inform ed of any re jection of mail and the reason fo r rejection” (Dkt. No. 42-1, at

6). The new policy also seem s to make room fo r an appeals process, though its provisions are

lacking in s pecific de tail. Such rig ht of appea l, however, extends on ly to m ail r ejected f or

“detriment[] to inm ate’s rehabilitation.” The righ t of appeal appears, by negative implication, to

be inapplicable to m ail withheld be cause it “co ntains information regarding the manufacture of

explosives, weapons, or drugs,” or m ail “desig ned to achieve the breakdown of jails through

inmate disruption” ( Id. at 7). Of further concern, there a ppear to be two separate bases for

censorship written into the Corr espondence Plan: a set of conten t-based standards contained in

Section IV, where an appeal is implied; and

a blanket provision in Section V I allowing

censorship “provided a legitim ate penological inte rest ex ists.” No appeal is provided or even

suggested for censorship in Section VI. The Cour t views these as const itutionally based defects

in the Correspondence P lan, especially since the Pl an anticipates avenues of censorship with no

attendant procedural protections.

Finally, the current language in the Corres pondence Plan is im permissibly vague about

the required procedures. In the abse nce of timelines, clearly defined roles, or guidelines as to the

form of an appeal, the prom ised procedural safeguards are, as a pr actical m atter, under the

unilateral control of the im plementing official. Such open-en ded discretion is incompatib le with

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Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 9 of 15 PageID #: 818
traditional notions of due process. Cf. Wolff v. McDonnell , 418 U.S. 529 (1974) (holding prison procedures acceptable in part b ecause its aut hority was “not left at large with unlim ited discretion,” but operated acco rding to standards includin g m andatory tim es and places of meeting and principles of decision).
As long as UCJ continues to operate under c onstitutionally defective procedures for handling correspondence, PLN is potentially sub ject to unconstitutional deprivations of its rights under the First and Fourteeenth A mendments. Th e Court finds that PLN has established a likelihood of success on the merits with respect to its ongoing claims for injunctive relief.
2. First Amendment Claims In addition to its Due Process claims, Plaintiff has alleged vi olations o f its subs tantive First Am endment rights—that UCJ has delib erately censored PLN’s comm unications with prisoners on the basis of either prejudice agai nst PLN content or an imperm issibly arbitrary discretion. Defendants deny these alleg ations. Un fortunately, because Defendants’ procedures for handling inm ate correspondence have been deficien t, there is very little in the way of actual evidence with respect to Plaintiff’s substant ive First Am endment claim s. No reasonablenes s analysis under Turner v. Safley is possible, since no record of of ficial censorship or its rationale is available to the Court. See 482 U.S. 78, 89 (1987).3 There is, however, evidence of at least som e substantive First Amendment harms. A “No Newspaper” policy, eve n inconsistently applied, would be an unconstitu tional First Amendment harm. See Mann v. Smith, 796 F.2d 79, 81 (5th C ir. 1986). Also, th e Jail’s inconsistent record of delivery by itself suggests an unc onstitutionally arbitrary policy. See City of Lakewood v. Plain
3 The Court notes that Defendant McCauley’s declaration that “no c opy of Prison Legal News has been rejected by the Jail due to its content” is fully consistent with unconstitutional policies that are overbroad but not content-based (e.g., a loosely enforced “No Newspapers” policy) or with policies that are unconstitutionally arbitrary (Dkt. No. 261, at 2).
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Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 10 of 15 PageID #: 819
Dealer Publ’g Co. , 486 U.S. 750, 759 (1988). While m uch of the evidence—packages sim ply marked “Refused” or “Return to S ender”—might plausibly have been refused for the benign reasons Defendant Mc Cauley suggests ( see Dkt. No. 23, at 6; Dkt. No . 26-1, at 2 ), becau se UCJ’s policy required n o notice, hearing, or reco rd when a piece of m ail was censored, there is no easy way from the record to distinguish betw een the m ost insidious F irst Amendment harms and the most ordinary and sensible jail practices . However, what evidence does exist suggests at least some violations of PLN’s substantive First Amendment rights. Plaintiff has demonstrated a likelihood of success on the m erits with respect to its First Am endment claim s prior to September 2013.
In the absence of further injunctive relief, Plaintiff could expect continuing impingements on its First Am endment rights. As explained above, even Defe ndants’ September 2013 policy is constitutionally flawed from a due process standpoint. Defects in process can foster violations of substantive rights—indeed, perhaps the m ost crucia l reason for requiring process is that it is necessary to protec t underlying rights. See Matthews v. Eldridge , 424 U.S. 319, 334-35 (1976). Even the Jail’s im proved 2013 policy allows signifi cant latitude for uncons titutional censorship from which PLN is entitled to be protected. Plai ntiff has thus established a likelihood of success on the m erits of its claim f or injunctive relief with resp ect to its subs tantive First Amendment Claims.
B. Substantial Threat of Irreparable Injury For Plaintiff to be entitled to a prelim inary injunction, it must establish not only a likelihood of success on the merits but also a substantial threat of irreparable injury. Janvey, 647 F.3d at 595. For the purposes of the present m otion, a harm is irreparable if it cannot be undone through money damages. Dennis Melancon, Inc. v. City of New Orleans , 703 F.3d 262, 279 (5th
10

Case 2:12-cv-00699-JRG Document 59 Filed 09/30/13 Page 11 of 15 PageID #: 820
Cir. 2012). “The ‘los s of First Am endment freedom s for even minim al periods of time constitutes irrepa rable injury ju stifying the g rant of a prelim inary injunction. ’” Palmer ex re l. Palmer v. Waxahachie Indep. Sch. Dist. , 579 F.3d 502, 506 (5th Cir. 2009) (quoting Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981).4
Though Defendants’ new Correspondence Plan is an im provement over the prior policy, it does not rem ove the t hreat of irreparable harm, for at least two reasons. First, as noted above, the Correspondence Plan is constitutionally flaw ed, and any future censorship is likely to violate Plaintiff’s rights. This Plan effe ctively invite s violations of Plain tiff’s substantive Firs t Amendment rights. Second, althoug h UCJ’s Correspondence Plan sugges ts reform, it outlines a “voluntary cessation” of unconstitutional con duct, which “does not preclude a finding of irreparable injury.” Doe v. Duncanville Indep. Sch. Dist. , 994 F.2d 160, 166 (5th Cir. 1993). “The crucial test” in such circumstances “is whether it can be said with assurance that there is no reasonable expectation that the wro ng will be r epeated.” Id. The burden of persuading the court that the Correspondence Plan establishes that assu rance lies with Defendants, and they have not met it in the Court’s view. See U.S. v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968).5
Indeed, Plaintiff has objectiv e reasons to exp ect continuing violations of its rights. F irst among these is basic hum an nature: Plaintiff has started a fight with Defendants by bringing this lawsuit ag ainst them in this Court. From that the Court ca n antic ipate at lea st so me degree of
4 Pl aintiff cl aims t hat vi olations of due process rights are i n themselves i rreparable (Dkt. No. 2, at 8 ). It a ppears, though, that courts usually examine violations of due process through the irreparability of the underlying harm. See, e.g., Advocacy Ctr. for Elderly and Disabled v. La . Dept. of Health and Hosps., 731 F.Supp. 2d 603, 625-26 (E.D. La. 2010). Thus in this case the irreparable due process harm is the deprivation of Plaintiff’s First Amendment rights without due process of law. Plaintiff also faces irreparable substantive First Amendment harms. The Court need not and does not reach the issue of whether a violation of due process in the abstract is irreparable. 5 A nother Di strict C ourt has f ound t hat c hanged p olicies o f a si milar nat ure do ass uage any t hreat o f i rreparable harm. See Prison Legal News v. Lindsey, No. 3:07-CV-00367-P, Dkt. No. 23, at 9 (N.D. Tex., June 18, 2007). That case addressed a somewhat different policy, however, which that court appears to have found adequately protective of inmates’ constitutional rights. Id. at 7.
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resentment toward Plaintiff that might—if left unchecked—interfere with Plaintiff’s rights. Such resentment is a natural reaction to the kind of provocation that Plaintiff has initiated through this action. Though the Court is anxiou s to reaffirm its faith in the dedicatio n, skill, and impartiality of Upshur County officials, it sees merit in a “trust but verify” approach.
Despite its improvements, Defendants’ new Correspondence Plan leaves the door open to suspect that, absent an injunction, more consti tutional violations m ight be in the offing. The Correspondence Plan is clear in it s m ention of appeals only as to one of three categories of content that m ight justify censorship. It also pr ovides for appeal, but do es not specify whether both senders and recipients of censored mail have a right of appeal (Dkt. No. 42-1, at 5-7). These drafting inadequacies should not be overlooked.
Finally, the most obvious reason to find a substantial threat of imm inent harm is past practice. The Defendants’ adoption of this new Correspondence Plan communicates to anyone paying attention that life under the prior (pre-S eptember 2013) practice at UCJ was not what it should have been. Nelson’s declaration confirm s this. These prior wrongs ra ise a realistic threat of imminent harm in the future.
C. Balance of Harms and Public Interest Without a preliminary injunction, the Court is persuaded that Plaintiff would likely suffer irreparable harm to its First Am endment rights. Defendants, however, will not be har med by the injunction the Court orders today. This Court is particularly m indful of the com ity due loca l officials in the dom ain of their exp ertise; of th e substantial difficulty of Defendants’ duties; of the benefit to public safety Defendants provide; and the cost to the public of additio nal burdens on Def endants. In orde r to m inimize any addition al burd en, the Court has ele cted to use Defendants’ Correspondence Plan as the basis for its injunctive relief. Th e Court believes that
12

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Defendants will be subject only to a slight modification of a Plan it is cu rrently in the process of implementing. These alterations—which the Court finds are the m inimum necessary to satisfy the requ irements of the Constitu tion—should not harm Defendants or burden their ability to carry out their already difficult duties. The Court finds that its injunction weighs strongly in the public interest—rem edying consti tutional defects in a public institution while intruding only minimally, if at all, on the local governm ent at hand. T he Court specifi cally finds that its injunction will have n o adverse ef fect on p ublic saf ety, since the Jail m ay censor (with appropriate process) any communications that legitimately threaten safety either inside or outside the Jail. IV. CONCLUSION
Having carefully considered the pleading s of the partie s, the Court f inds tha t a preliminary injunction is warrant ed. Modifications to UCJ’s Co rrespondence Plan are necessary in order to meet the minimum standards guaranteed by the First and Fourteenth Amendments to the Constitution of th e United S tates. The C ourt f inds that the Constitu tion requir es th e injunctive r elief be low, tha t th e r elief is n arrowly drawn, and that it ex tends no further than necessary to rem edy the threat of imm inent and irreparable harm . See 18 U.S.C. § 3626. Accordingly, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Motion (Dk t. No. 2) as follows:
V. INJUNCTION The Court hereby ORDERS AND ENJOINS Defendants as set forth hereafter: 1) Defendants shall abide by the terms of its Cor respondence Plan (Dkt. No. 42-1, at 5-7), except with respect to Sections (IV) and (VI) of said plan.
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2) In lieu of Section (IV) of the Corresponde nce Plan above cited, the Defendants shall
implement and abide by the following terms:
Section (IV)
Some correspondence may be rejected, on a case-by-case basis, provided it falls under one of the following definitions:
a. Material th at conta ins inf ormation regarding the m anufacture of explosives, weapons, or drugs;
b. Material that a reasonable person would construe as written solely f or the purpose of communicating information designed to achieve the breakdown of jails through inmate disruption such as strikes or riots;
c. Material for which a specific factual determination has been made that it is detrimental to inmate’s rehabilitation because it would encourage deviant, criminal, or sexual behavior or ot herwise be adverse to legitim ate penological interests.
The inm ate and the sender will be inform ed within 72 hours of any rejection of mail pursuant to (a), (b), or (c) above, or Section (VI), below . Notice to th e inmate and the sender shall in clude the rea son for rejection; notice of the opportunity for appeal; and procedures for requesting an appeal. Notice to the sender shall be d eemed to be given three days after such is postmarked as first-class mail, postage prepaid, properly addressed and placed within th e care of the Unite d States Postal Serv ice. Notice to the inmate shall be deemed to be given when hand-delivered to the inm ate while incarcerated in the Upshur County Jail, or, if the inmate is no longer held in the Upshur Count y Jail, three days after notice is postm arked as first-class mail, postage prepaid, proper ly addressed and placed within the care of the United States Postal Service. The in mate or the sender or bo th may request an appeal within 21 days of their notice of rejection. Appeals shall be considered and decided by the Sheriff of Upshur County, Texas (“Sheriff”) within 72 hours of receipt of a request for appeal. If the Sheriff is unavoidably unable to hear an a ppeal with in the tim e allo tted, th e Sheriff may so certify in writing, in which case the Chief Deputy Sheriff of Upshur County (“Chief Deputy”) m ay consider and decide the appeal. If both the Sheriff and the Chief Deputy are unavoidably unable to hear an appeal within the tim e allotted, they m ay both so certify in writing, in which case the Chief Jail Adm inistrator for Upshur County, Texas m ay consider and decide the appeal. Appella nts shall be informed in writing of the hearing official’s decision within 24 hours of the decision being made.
Any rejecte d m ail will be reta ined and f iled in the inmate’s p ersonal property file. Each publication will be accepted or rejected individually. If
14

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a prisoner r efuses delivery of mail, the Ja il shall obtain a written re lease signed by the prisoner and so indicating such refusal. 3) Defendants shall abide by th e terms of Section (VI) of the Correspondence Plan, except that: a. In the second sentence of the second paragraph of Section (VI) (“A copy of
the original correspondence should be retained”), the w ord “should” is .
replaced with the word “shall.” b. The following paragraph is appended to the end of Section (VI):
In the event that any correspondence or its contents is altered, damaged, withheld, or otherwise censored (beyond being m erely opened and read) in accordance with the term s of this section, both the sender and recipient shall be notified and presented with the opportunity for an appeal as described in Section (IV) above. SIGNED this 19th day of December, 2011. So ORDERED and SIGNED this 30th day of September, 2013.
____________________________________ RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE
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 Case 2:12-cv-00699-JRG Document 96 Filed 12/06/13 Page 1 of 5 PageID #: 1572

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

PRISON LEGAL NEWS, Plaintiff,
v. ANTHONY BETTERTON, et al.,
Defendants.

§

§

§

§

§

Case No. 2:12-CV-699-JRG

§

§

§

§

AGREED FINAL JUDGMENT IT IS H EREBY AGREED by and be tween t he unde rsigned c ounsel f or P laintiff a nd Defendants (collectively, the “Parties”), and the Court finds and orders as follows: 1. On November 1, 2012, P laintiff P rison Legal News (“PLN”) filed i ts Complaint i n this matter, seeking injunctive and declaratory relief, damages, and attorneys’ fees and costs against the D efendants. The C omplaint a lleged a n unl awful pol icy, pr actice a nd c ustom of censoring incoming m agazines, periodicals, and m ail addressed t o prisoners at t he Upshur C ounty J ail i n violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Texas Constitution. The Complaint also alleged violations of due process of law for failure to give PLN notice of r ejected m ail a nd a n oppor tunity t o a ppeal t hose r ejection decisions. 2. Also on N ovember 1, 20 12, PLN filed its Motion for Preliminary Injunction, requesting an i njunction pr ohibiting D efendants f rom c ontinuing t o censor publ ications at t he U pshur County J ail. T he C ourt granted P LN’s m otion i n part and entered a preliminary i njunction on September 30, 2013.

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3. Defendants Anthony Betterton, J ill M cCauley, a nd Upshur C ounty, T exas, (“Defendants”) have denied the a llegations o f the Complaint a nd r aised various affirmative defenses. 4. The Parties have advised the Court that a settlement has been reached in this case and, in connection t herewith, the Parties ha ve a greed t o t he f ollowing t erms a nd c onditions regarding censorship of i ncoming magazines, pe riodicals, a nd m ail a ddressed t o pr isoners a t t he U pshur County Jail:
(A) Defendants ha ve a greed t o a dopt a nd i mplement a ne w w ritten policy a nd procedure r egarding c orrespondence a nd i ncoming p ublications f or pr isoners a t t he U pshur County Jail, attached hereto as Exhibit A – Correspondence and Incoming Publications Plan (the “New P olicy”). T hese procedures shall g overn t he r eview, ha ndling, and di stribution of all future correspondence and incoming publications to individuals in custody of the Upshur County Jail—including, but not limited to, those sent by PLN.
(B) Subject t o t he r estrictions c ontained i n t he N ew P olicy, D efendants a gree t o distribute publications such as Plaintiff’s monthly journal, Prison Legal News, and PLN’s other publications including its brochures, letters, books, and magazines to inmates currently housed at the Upshur County Jail and to provide constitutionally adequate notice to senders, such as PLN, and inmates and an oppor tunity t o a ppeal in a ccordance w ith t he N ew Policy when mail is censored or rejected. 5. The P arties agree, a nd t he C ourt or ders, t hat D efendants w ill e stablish, i mplement, and enforce the policies and procedures set forth in the New Policy. 6. The Parties further agree, and the Court orders, that within 30 days of the date of entry of this Agreed Judgment, Defendant Sheriff Anthony Betterton or his designee will ensure that the
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New Policy has been fully implemented. This includes disseminating a copy of the New Policy to all employees of the Upshur County Jail and confirming that each recipient has read the same, disseminating the New Policy to members of the general public by posting it conspicuously on a website maintained by or on be half of the Upshur County Sheriff’s Office, and disseminating a copy of the New Policy to inmates by including it in the inmate handbook and by posting a copy in common areas for at least fourteen days. 7. Defendants w ill file with t he C ourt written c onfirmation o f their compliance with th e terms set forth in this Agreed Judgment no later than ninety (90) days after the date of its entry. 8. The Parties agree that the provisions herein fully and fairly accommodate their interests regarding t he claims asserted i n t his s uit, t hat t he C ourt s hould adopt and approve t his A greed Judgment, and that this Agreed Judgment (together with the Parties’ Settlement Agreement and the New Policy) resolves all claims alleged by PLN in this case. 9. PLN’s c laims against D efendants a re d ismissed with p rejudice p ursuant to th e P arties’ Settlement Agreement and this Agreed Judgment. This Court retains jurisdiction of this action to enforce the terms of the Parties’ Settlement Agreement and this Agreed Judgment and to resolve any disputes regarding compliance with the New Policy. 10. The Parties agree to execute the Settlement Agreement within seven (7) days of filing the Agreed Final Judgment. After the Parties have executed the Settlement Agreement, on or before December 13, 2013, the Agreed Final Judgment will become final.
SO ORDERED.
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AGREED TO IN SUBSTANCE AND IN FORM:
/s/ Thomas S. Leatherbury Thomas S. Leatherbury Texas Bar No. 12095275 Sean W. Kelly Texas Bar No. 24065550 Kimberly R. McCoy Texas Bar No. 24079492 Marissa A. Wilson Texas Bar No. 24075626 VINSON & ELKINS LLP 2001 Ross Avenue, Suite 3700 Dallas, TX 75201-2975 Telephone: 214.220.7720 Facsimile: 214.999.7720 tleatherbury@velaw.com skelly@velaw.com kmccoy@velaw.com mwilson@velaw.com
Brian McGiverin Texas Bar No. 24067760 TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741 Telephone: 512.474.5073 Facsimile: 512.474.0726 brian@texascivilrightsproject.org
Lance T. Weber Admitted Pro Hac Vice HUMAN RIGHTS DEFENSE CENTER P.O. Box 1151 Lake Worth, FL 33460 Telephone: 561.360.2523 Facsimile: 866.735.7136 lweber@hrdc-law.org
Attorneys for Plaintiff Prison Legal News
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AGREED TO IN SUBSTANCE AND IN FORM:
/s/ S. Cass Weiland S. Cass Weiland Texas Bar No. 21081300 Robert A. Hawkins Texas Bar No. 00796726 Joanna Y. Grigson Texas Bar No. 24050692 PATTON BOGGS LLP 2000 McKinney, Suite 1700 Dallas, TX 75201 214-758-1500 214-758-1550 cweiland@pattonboggs.com rhawkins@pattonboggs.com jgrigson@pattonboggs.com Attorneys for Defendants
US 2201170v.1
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Case 2:12-cv-00699-JRG Document 96-1 Filed 12/06/13 Page 1 of 4 PageID #: 1577
Exhibit A
Upshur County Correspondence and Incoming Publications Plan
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Case 2:12-cv-00699-JRG Document 96-1 Filed 12/06/13 Page 2 of 4 PageID #: 1578

UPSHUR COUNTY SHERIFF’S OFFICE JAIL DIVISION
CORRESPONDENCE AND INCOMING PUBLICATIONS PLAN

I. OBJECTIVE
The objective of this Correspondence and I ncoming Publicatio ns Plan is to pr ovide for the handling of privileged and non-privileged corres pondence, both outgoing and in coming, and fo r the collect ion and distribution of that correspo ndence. For purposes of this plan, the terms “correspondence” and “mail” are defined t o include all in coming publica tions, such a s periodicals, newspapers, magazines, and books sent to inmates.
II. GENERAL
Inmates are allowed to send as many letters of as many p ages as the y desire, to whome ver they desire (unless prohibited by law, e.g. prot ective and restraining or ders), provided they ca n pay for postage and supplies. Inmates may rec eive correspondence in any quant ity, amount and number of pages, and will be allowed to retain writing materials, stamps and correspondence in reasonable amounts.
Inmate to inmate correspondence is allowed, provided it is routed through the postal service.
Inmate mail will normally be delivere d to inmates on the same day it is re ceived from the postal service. Outgoing mail is picked up by 10 a.m. each day and will be delivered to the post al service on the same day it is received from the inmates.
III. INDIGENT MAIL
If requested, indigent inmates shall be provided with a rea sonable amount of writin g materials and postage to corresp ond with the ir attorneys and the courts, and a sufficient amount to po st three (3) personal lett ers per week. A negat ive balance will be mai ntained on the inmate’s commissary account for indigent po stage and corresponde nce supplie s. Should one of these inmates receive monies in excess of $5.00, the amount will be deducted from his/her account. The inmate will be advised of this action in writing.
IV. PROHIBITED MAIL
Some correspondence may be rejected, on a case-by-case basis, provided it falls u nder one of the following definitions:
a. Material that contains information regarding the manuf acture of explosives, weapons, or drugs;

Correspondence and Incoming Publications Plan

Page 2

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b. Material that a reason able person would con strue as wr itten sole ly for the purpose of communicating information designe d to achieve the breakdown of jails through inmate disruption such as strikes or riots;
c. Material for which a specific factu al determination has b een made that it is detrimental to inmate’s rehabilitat ion becau se it would encourage deviant, criminal, or sexual behavior or othe rwise be adverse to legitimate penologica l interests.
The inmate and the sen der will be i nformed within five days of any rejection of mail pursuant to (a), (b), or ( c) above, or Section (VI ), below. No tice to the inmate and the sender shall include the specif ic reason for r ejection; notice of the opportunity for appeal; a nd specif ic information regarding the procedures for requesting an appeal. Notice to the sender shall be deemed to b e given three days after such is p ostmarked as first-class mail, postage prepaid, properly addressed and placed within the care of the Unit ed States P ostal Service. Notice to the inmate shall be de emed to be given when hand-delivered to the inmate while in carcerated in the Upshur County Jail. If t he inmate is no lon ger held in the U pshur County Jail, no notice to the inmate is required. The inmate or t he sender or both ma y request an appeal within 14 days of their notice of rejection.
Appeals sh all be considered and decided by the Sheriff of Upshur County, Te xas (“Sheriff”) within five d ays of rece ipt of a requ est for app eal. If the S heriff is una ble to hear an appeal within the time allotted, the Chief Deputy Sh eriff of Upshur County (“Chief De puty”) may consider and decide the appeal. If b oth the Sheriff and the Chief Deputy are unable t o hear an appeal within the time allotted, the Chief Jail Administrator for Upshu r County, Texas may consider and decide th e appeal. Appellants shall be infor med in writing of the hearing official’s decision within 72 hours of the decision being made.
Any rejected mail will b e retained a nd filed in the inmate’s personal property file. Each letter or publication will be accepted or rejected individually. If a prisoner refuses delivery of mail, the Jail shall obtain a written confirmation signed by the prisoner and so indicating such refusal.
Any mail received for a n inmate which is not delivered b ecause th e inmate is n o longer in custody when the mail is rece ived at the Upsh ur County Jail sha ll n ot be con sidered rejecte d mail under these provisions.
V. PRIVILEGED MAIL
Correspondence addre ssed to or received f rom the following persons or org anizations is considered privileged:
1. Officials and other personnel of the federal, state, and local courts; 2. All federal officials and officers, including the President of the United States; 3. State officials and officers, including the Texas Commission on Jail Standards
and the Governor; 4. Representatives of bona fide news media; and 5. Mail marked “Legal Mail” or “Attorney-Client Privileged.”

Correspondence and Incoming Publications Plan

Page 3

4843-0572-3414.6.

Case 2:12-cv-00699-JRG Document 96-1 Filed 12/06/13 Page 4 of 4 PageID #: 1580

Correspondence received from individuals described in th ese categories shall not be read by staff nor interfered with; however it should be opened and inspected for contraband, but only in the presence of the inmate. If there is probable cause to su spect that the incoming letter is part of an attempt to formulate, devise, or otherwise effectuate a plan to escape from the jail, or to violate state or federal laws, officials shall obtain a search warrant prior to opening and reading the corresp ondence of the individu al involved. Correspondence sent to the above mentione d individuals may not be opened or interfered with unless a search warrant is obtained.

If privileged mail is rejected as prohibited mail under Section IV above, both the sender and recipient sh all be notifi ed of the reason for such action and will be presented with the opportunity for an appeal as described in Section (IV) above.

VI. NON PRIVILEGED MAIL

Non-privileged mail is d efined as a ll mail which is not subject to a privilege. All incoming or outgoing no n-privileged mail may be read. If contraband is found o r if the con tent of th e correspondence threatens a legitimate penological inter est, it may be confiscated and the inmate and the other co rrespondent will both b e advised o f this act ion. A copy of the original correspondence shall be retained pending disposition of any appeals.

Contraband defined in t he penal co de or code of criminal procedure a s illega l sha ll be turned over to the criminal investigation division and disposed of a ccording to law. If curre ncy, money orders, or checks are di scovered in either incoming or outgoing mail, they will be deposited into the inmate correspondent’s individual trust fund account.

Outgoing non-privileged correspondence is delivered unopened to the jail staff. The staff person may choose to read a letter, should s/he feel it is advisable to do so.

A log will be kept of all incoming and outgoing correspondence and will incl ude the name and address of both the sender and the addressee.

Inmates may receive only correspon dence through the mail. No clothing , shoes, foo d, etc. are

allowed. Publicatio ns such as new spapers, books, magazines, newsletters, brochures, and

other written correspon dence are all specifical ly allowed, as are newspaper clipp ings, pages

from magazines, internet downloads, printout s of web pages and/or ema il messages, and any

other type of written material which a) does not pose a threat to any of the

Defendants’

legitimate penological interests and b) is not considered contraband.

In the even t that any correspondence or its c ontents is destroyed, withheld, or otherwise censored (beyond being opened and read) in accordance with the terms of this section, both the sender and recipient shall be notifi ed of the reason for such action an d will be pr esented with the opportunity for an appeal as described in Section (IV) above.

Correspondence and Incoming Publications Plan
4843-0572-3414.6.

Page 4

 
 Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 1 of 10
CLOSED,JURY,MEDIATION,STAYED
U.S. District Court [LIVE] Eastern District of TEXAS (Marshall) CIVIL DOCKET FOR CASE #: 2:12−cv−00699−JRG

Prison Legal News v. Betterton et al Assigned to: Judge Rodney Gilstrap Cause: 42:1981 Civil Rights Mediator Earl F. Hale, Jr.
Plaintiff Prison Legal News

Date Filed: 11/01/2012 Date Terminated: 12/19/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Earl F Hale , Jr. Earl F Hale, Jr. 4144 N. Central Expressway Ste 225 Dallas, TX 75204 214/515−0199 Fax: 214−515−0192 Email: efhale@earlhale.com ATTORNEY TO BE NOTICED
represented by Alissa R Hull Human Rights Defense Center PO Box 2420 West Brattleboro, VT 05303 802/579−1309 Fax: 866−228−1681 Email: ahull@humanrightsdefensecenter.org TERMINATED: 09/11/2013
Kimberly R McCoy Vinson &Elkins − Dallas 2001 Ross Ave 3700 Trammell Crow Center Dallas, TX 75201−2975 214−220−7920 Fax: 214−999−7920 Email: kmccoy@velaw.com ATTORNEY TO BE NOTICED
Lance T Weber Human Rights Defense Center PO Box 2420 West Brattleboro, VT 05303 561/360−2523 Fax: 866/735−7136 Email: lweber@humanrightsdefensecenter.org ATTORNEY TO BE NOTICED
Marissa Anne Wilson Vinson &Elkins − Dallas 2001 Ross Ave 3700 Trammell Crow Center Dallas, TX 75201−2975 214/220−7854 Fax: 214/999−7854 Email: mwilson@velaw.com ATTORNEY TO BE NOTICED
Scott Medlock Edwards Law

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 2 of 10
The Haehnel Building 1101 East 11th Street Austin, TX 78702 512/623−7727 Fax: 512−623−7720 Email: scott@edwards−law.com TERMINATED: 10/11/2013
Sean W Kelly Vinson &Elkins − Dallas 2001 Ross Ave 3700 Trammell Crow Center Dallas, TX 75201−2975 214−220−7720 Fax: 214−999−7720 Email: skelly@velaw.com ATTORNEY TO BE NOTICED
Stephen Cass Weiland Squire Patton Boggs (US) LLP − Dallas 2000 McKinney Ave, Suite 1700 Dallas, TX 75201 214/758−1500 Fax: 214−758−1550 Email: Cass.weiland@squirepb.com ATTORNEY TO BE NOTICED
Thomas S Leatherbury Vinson &Elkins 2001 Ross Ave 3700 Trammell Crow Center Dallas, TX 75201−2975 214/220−7744 Fax: 12149997792 Email: tleatherbury@velaw.com ATTORNEY TO BE NOTICED
Brian Rolland McGiverin Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: bmcgiver@gmail.com ATTORNEY TO BE NOTICED

V. Defendant Anthony Betterton

represented by Stephen Cass Weiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanna Youngblood Grigson Patton Boggs LLP− Dallas 2000 McKinney Ave Ste 1700 Dallas, TX 75201 214−758−6680 Fax: 214−758−1550 Email: jgrigson@pattonboggs.com ATTORNEY TO BE NOTICED

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 3 of 10

Robert Allen Hawkins Squire Patton Boggs (US) LLP − Dallas 2000 McKinney Ave, Suite 1700 Dallas, TX 75201 214/758−1500 Fax: 214−758−1550 Email: Robert.hawkins@squirepb.com ATTORNEY TO BE NOTICED

Sean W Kelly (See above for address) ATTORNEY TO BE NOTICED

Stephen Tristan Email: stristan@pattonboggs.com ATTORNEY TO BE NOTICED

Defendant Jill McCauley

represented by Stephen Cass Weiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna Youngblood Grigson (See above for address) ATTORNEY TO BE NOTICED

Robert Allen Hawkins (See above for address) ATTORNEY TO BE NOTICED

Sean W Kelly (See above for address) ATTORNEY TO BE NOTICED

Defendant Upshur County

represented by Stephen Cass Weiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joanna Youngblood Grigson (See above for address) ATTORNEY TO BE NOTICED

Robert Allen Hawkins (See above for address) ATTORNEY TO BE NOTICED

Sean W Kelly (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/01/2012
11/01/2012

# Docket Text
1 COMPLAINT against Anthony Betterton, Jill McCoy ( Filing fee $ 350 receipt number 0540−3854654.), filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet)(McGiverin, Brian) (Entered: 11/01/2012)
2 MOTION for Preliminary Injunction by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(McGiverin, Brian) (Additional attachment(s) added on 4/5/2013: # 4 Text of Proposed Order) (ch, ). (Entered: 11/01/2012)

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 4 of 10

11/01/2012 11/01/2012
11/13/2012 11/26/2012 11/26/2012 11/29/2012 12/04/2012 12/11/2012
12/11/2012
12/11/2012 12/13/2012 12/13/2012 01/10/2013 01/10/2013
01/24/2013 01/24/2013 01/24/2013 02/25/2013

Case assigned to Judge Rodney Gilstrap. (ch, ) (Entered: 11/01/2012)
In accordance with the provisions of 28 USC Section 636(c), you are hereby notified that a U.S. Magistrate Judge of this district court is available to conduct any or all proceedings in this case including a jury or non−jury trial and to order the entry of a final judgment. The form Consent to Proceed Before Magistrate Judge is available on our website. All signed consent forms, excluding pro se parties, should be filed electronically using the event Notice of Consent to Proceed Before Magistrate Judge. (ch, ) (Entered: 11/01/2012)
3 SUMMONS Issued as to Anthony Betterton, Jill McCoy. (Attachments: # 1 Sheriff Betterton, # 2 Upshur County)(ehs, ) (Entered: 11/13/2012)
4 MOTION to Amend/Correct 1 Complaint by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(McGiverin, Brian) (Entered: 11/26/2012)
5 AMENDED COMPLAINT against Anthony Betterton, Jill McCauley, filed by Prison Legal News.(McGiverin, Brian) (Entered: 11/26/2012)
6 ORDER denying as moot 4 Motion to Amend. The Plaintiff does not need leave of court to file its Amended Complaint. Signed by Judge Rodney Gilstrap on 11/29/12. (bas) (Entered: 11/29/2012)
7 SUMMONS REISSUED as to Jill McCauley. (ehs, ) (Entered: 12/04/2012)
8 Unopposed MOTION for Extension of Time to File Answer re 5 Amended Complaint by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order Proposed Order Text)(Weiland, Stephen) (Entered: 12/11/2012)
9 NOTICE of Attorney Appearance − Pro Hac Vice by Lance T Weber on behalf of Prison Legal News. Filing fee $ 100, receipt number 0540−3911208. (Weber, Lance) (Additional attachment(s) added on 12/13/2012: # 1 SEALED Attachment) (pkb, ). (Entered: 12/11/2012)
10 NOTICE of Attorney Appearance − Pro Hac Vice by Alissa R Hull on behalf of Prison Legal News. Filing fee $ 100, receipt number 0540−3911199. (Hull, Alissa) (Entered: 12/11/2012)
11 ORDER granting 8 Motion for Extension of Time to Answer. Deadline extended to answer due 1/10/13. Signed by Judge Rodney Gilstrap on 12/13/12. (ehs, ) (Entered: 12/13/2012)
Answer Due Deadline Updated for Anthony Betterton to 1/10/2013; Jill McCauley to 1/10/2013; Upshur County to 1/10/2013. (ehs, ) (Entered: 12/13/2012)
12 ANSWER to 5 Amended Complaint by Anthony Betterton, Jill McCauley, Upshur County.(Weiland, Stephen) (Entered: 01/10/2013)
In accordance with the provisions of 28 USC Section 636(c), you are hereby notified that a U.S. Magistrate Judge of this district court is available to conduct any or all proceedings in this case including a jury or non−jury trial and to order the entry of a final judgment. The form Consent to Proceed Before Magistrate Judge is available on our website. All signed consent forms, excluding pro se parties, should be filed electronically using the event Notice of Consent to Proceed Before Magistrate Judge. (sm, ) (Entered: 01/10/2013)
13 NOTICE of Attorney Appearance by Sean W Kelly on behalf of Prison Legal News (Kelly, Sean) (Entered: 01/24/2013)
14 NOTICE of Attorney Appearance by Thomas S Leatherbury on behalf of Prison Legal News (Leatherbury, Thomas) (Entered: 01/24/2013)
15 NOTICE of Attorney Appearance by Kimberly R McCoy on behalf of Prison Legal News (McCoy, Kimberly) (Entered: 01/24/2013)
16 Scheduling Conference set for 3/27/2013 02:20 PM before Judge Rodney Gilstrap. Signed by Judge Rodney Gilstrap on 2/25/2013. (ch, ) (Entered: 02/25/2013)

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 5 of 10

03/27/2013 04/01/2013 04/02/2013 04/03/2013 04/03/2013
04/03/2013
04/05/2013 04/11/2013 04/12/2013 04/16/2013 04/25/2013 04/26/2013 04/26/2013 05/03/2013 05/13/2013 05/13/2013

Minute Entry for proceedings held before Judge Rodney Gilstrap: Scheduling Conference held on 3/27/2013. Proposed deadlines for Docket Control Order and Discovery Order discussed. Earl F. Hale, Jr. appointed as Mediator. (Court Reporter Susan Simmons.) (bga, ) (Entered: 04/02/2013)
17 NOTICE of Designation of Mediator, Earl F. Hale, Jr., filed by Anthony Betterton, Jill McCauley, Prison Legal News, Upshur County. (Weiland, Stephen) (Entered: 04/01/2013)
18 NOTICE of Attorney Appearance by Scott Medlock on behalf of Prison Legal News (Medlock, Scott) (Entered: 04/02/2013)
19 DISCOVERY ORDER. Signed by Judge Rodney Gilstrap on 4/2/2013. (ch, ) (Entered: 04/03/2013)
20 DOCKET CONTROL ORDER − Amended Pleadings due by 9/12/2013., Discovery due by 9/5/2013., Joinder of Parties due by 7/11/2013., Proposed Pretrial Order due by 11/14/2013., Bench Trial set for 12/3/2013 09:00 AM before Judge Rodney Gilstrap. Signed by Judge Rodney Gilstrap on 4/2/2013. (ch, ) (Entered: 04/03/2013)
21 ORDER REFERRING CASE to Mediator. Earl F. Hale, Jr., 4144 N. Central Expressway, Suite 225, Dallas, Texas 75204, telephone number 214/515−0199, fax number 214/515−0192, and email address efhale@earlhale.com is hereby appointed as mediator in the above referenced case. Mediation shall be completed by September 26, 2013. Signed by Judge Rodney Gilstrap on 4/2/13. (ehs, ) (Entered: 04/03/2013)
22 ORDER re 2 MOTION for Preliminary Injunction filed by Prison Legal News ORDERING that defendants shall file a response to pla motion no later than 14 days from date of this order. Signed by Judge Rodney Gilstrap on 4/4/2013. (sm, ) (Entered: 04/05/2013)
23 AFFIDAVIT in Support re 2 MOTION for Preliminary Injunction Declaration of Paul Wright filed by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kelly, Sean) (Entered: 04/11/2013)
24 Unopposed MOTION for Extension of Time to File Response/Reply as to 23 Affidavit in Support of Motion, 22 Order, 1 Complaint by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 04/12/2013)
25 ORDER granting 24 Motion for Extension of Time to File Response re 2 MOTION for Preliminary Injunction. Responses due by 4/25/2013. Signed by Judge Rodney Gilstrap on 4/15/13. (mrm, ) (Entered: 04/16/2013)
26 RESPONSE to Motion re 2 MOTION for Preliminary Injunction filed by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Weiland, Stephen) (Additional attachment(s) added on 4/26/2013: # 3 REVISED ORDER) (ch, ). (Entered: 04/25/2013)
27 NOTICE of Discovery Disclosure by Anthony Betterton, Jill McCauley, Upshur County (Weiland, Stephen) (Entered: 04/26/2013)
28 NOTICE of Discovery Disclosure by Prison Legal News (Kelly, Sean) (Entered: 04/26/2013)
29 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit A − Declaration of Devadus Nelson)(Kelly, Sean) (Entered: 05/03/2013)
30 SUR−REPLY to Reply to Response to Motion re 2 MOTION for Preliminary Injunction filed by Anthony Betterton, Jill McCauley, Upshur County. (Weiland, Stephen) (Entered: 05/13/2013)
31 NOTICE of Discovery Disclosure by Prison Legal News (Kelly, Sean) (Entered: 05/13/2013)

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 6 of 10

05/13/2013 08/13/2013
08/15/2013
08/27/2013 08/28/2013 08/29/2013 09/03/2013 09/03/2013
09/04/2013 09/04/2013 09/09/2013
09/09/2013
09/10/2013
09/10/2013 09/10/2013 09/10/2013 09/11/2013

32 NOTICE of Discovery Disclosure by Anthony Betterton, Jill McCauley, Upshur County (Weiland, Stephen) (Entered: 05/13/2013)
33 Joint MOTION for Extension of Time to Complete Discovery Deadlines by Anthony Betterton, Jill McCauley, Prison Legal News, Upshur County. (Attachments: # 1 Text of Proposed Order)(Kelly, Sean) (Additional attachment(s) added on 8/13/2013: # 2 REVISED ORDER (no lines)) (sm, ). (Entered: 08/13/2013)
34 ORDER, granting 33 Joint MOTION to Extend Discovery Deadlines filed by Anthony Betterton, Prison Legal News, Jill McCauley, Upshur County. ( Amended Pleadings due by 9/16/2013., Discovery due by 9/13/2013.) Signed by Judge Rodney Gilstrap on 8/14/13. (mrm, ) (Entered: 08/15/2013)
35 Agreed MOTION to Continue Scheduling Conference Deadlines by Anthony Betterton, Jill McCauley, Prison Legal News, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 08/27/2013)
36 ORDER granting 35 Agreed MOTION to Extend Deadlines. Signed by Judge Rodney Gilstrap on 8/28/2013. (ch, ) (Entered: 08/28/2013)
37 Joint MOTION for Extension of Time to Complete Discovery Deadlines by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(McCoy, Kimberly) (Entered: 08/29/2013)
38 ORDER granting 37 Motion for Extension of Time to Complete Discovery. Signed by Judge Rodney Gilstrap on 8/31/2013. (ch, ) (Entered: 09/03/2013)
39 ***DEFICIENT DOCUMENT. PLEASE IGNORE.***DEMAND for Trial by Jury by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Grigson, Joanna) Modified on 9/4/2013 (ch, ). (Entered: 09/03/2013)
NOTICE of Deficiency regarding the 39 submitted NO CERTIFICATE OF SERVICE. Correction should be made by one business day (ch, ) (Entered: 09/04/2013)
40 DEMAND for Trial by Jury by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 09/04/2013)
41 MOTION for Leave to File a Supplemental Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 09/09/2013)
42 SUPPLEMENTAL SUR−REPLY to Reply to Response to Motion re 2 MOTION for Preliminary Injunction, filed by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Exhibit A−B)(Weiland, Stephen) Modified on 9/10/2013 (sm, ). (Entered: 09/09/2013)
NOTICE BY CLERK re 42 Sur−Reply to Reply to Response to Motion. Clerk hs modified this entry, per atty, to reflect that this is a SUPPLEMENTAL surreply to 2 Motion for prelinary injunction instead of to #41 Motion. (sm, ) (Entered: 09/10/2013)
43 NOTICE by Prison Legal News of change of attorney information (Weber, Lance) (Entered: 09/10/2013)
44 NOTICE of Change of Address by Lance T Weber (Weber, Lance) (Entered: 09/10/2013)
45 RESPONSE to Motion re 41 MOTION for Leave to File a Supplemental Memorandum in Opposition to Plaintiff's Motion for Preliminary Injunction filed by Prison Legal News. (Kelly, Sean) (Entered: 09/10/2013)
46 ORDER granting 41 Motion for Leave to File Supplemental Memorandum. Signed by Judge Rodney Gilstrap on 9/11/2013. (ch, ) (Entered: 09/11/2013)

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 7 of 10

09/11/2013 09/12/2013 09/12/2013 09/12/2013 09/12/2013 09/18/2013 09/19/2013 09/23/2013
09/24/2013 09/25/2013 09/25/2013 09/27/2013 09/30/2013 09/30/2013
10/02/2013 10/03/2013 10/03/2013 10/03/2013 10/03/2013

47 Opposed MOTION for Protective Order by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Exhibit A1−A6, # 2 Text of Proposed Order)(Weiland, Stephen) (Entered: 09/11/2013)
48 NOTICE by Anthony Betterton, Jill McCauley, Upshur County of Change of Attorney Information (Weiland, Stephen) (Entered: 09/12/2013)
49 NOTICE of Attorney Appearance by Robert Allen Hawkins on behalf of Anthony Betterton, Jill McCauley, Upshur County (Hawkins, Robert) (Entered: 09/12/2013)
50 NOTICE of Attorney Appearance by Joanna Youngblood Grigson on behalf of Anthony Betterton, Jill McCauley, Upshur County (Grigson, Joanna) (Entered: 09/12/2013)
51 RESPONSE in Opposition re 47 Opposed MOTION for Protective Order filed by Prison Legal News. (Attachments: # 1 Exhibit A)(Kelly, Sean) (Entered: 09/12/2013)
52 RESPONSE to 42 Sur−Reply to Reply to Response to Motion for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit A)(Kelly, Sean) (Entered: 09/18/2013)
53 MEMORANDUM OPINION AND ORDER −. Signed by Judge Rodney Gilstrap on 9/18/2013. (ch, ) (Entered: 09/19/2013)
54 Joint MOTION for Extension of Time to Complete Discovery Joint Motion to Extend Deadlines for Expert Deposition by Prison Legal News. (Attachments: # 1 Text of Proposed Order Proposed Order)(Wilson, Marissa) (Additional attachment(s) added on 9/24/2013: # 2 REVISED ORDER) (ch, ). (Entered: 09/23/2013)
55 Unopposed MOTION to Continue Trial Setting by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 09/24/2013)
56 ORDER granting 54 Motion for Extension of Time to Complete Discovery. Signed by Judge Rodney Gilstrap on 9/24/2013. (ch, ) (Entered: 09/25/2013)
57 NOTICE of Attorney Appearance by Marissa Anne Wilson on behalf of Prison Legal News (Wilson, Marissa) (Entered: 09/25/2013)
58 Joint MOTION to Continue Deadlines by Anthony Betterton, Jill McCauley, Prison Legal News, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 09/27/2013)
59 MEMORANDUM OPINION AND ORDER granting in part and denying in part 2 Motion for Preliminary Injunction. Signed by Judge Rodney Gilstrap on 9/30/13. (mrm, ) (Entered: 09/30/2013)
60 AMENDED DOCKET CONTROL ORDER − Motions in limine due by 11/14/2013., Proposed Pretrial Order due by 11/14/2013., Jury Selection set for 12/9/2013 09:00AM before Judge Rodney Gilstrap., Pretrial Conference set for 11/26/2013 01:30 PM before Judge Rodney Gilstrap. Signed by Judge Rodney Gilstrap on 9/30/2013. (ch, ) (Entered: 09/30/2013)
61 ORDER denying 55 Motion to Continue; denying 58 Motion to Continue. Parites will follow the schedule set forth in the Amended Docket Control Order. Signed by Judge Rodney Gilstrap on 10/1/2013. (ch, ) (Entered: 10/02/2013)
62 NOTICE of Discovery Disclosure by Prison Legal News (Kelly, Sean) (Entered: 10/03/2013)
63 MOTION for Reconsideration re 61 Order on Motion to Continue, and Motion to Extend Deadlines by Anthony Betterton, Jill McCauley. (Attachments: # 1 Exhibit A−B, # 2 Text of Proposed Order)(Weiland, Stephen) (Entered: 10/03/2013)
64 Trial Witness List by Prison Legal News. (Kelly, Sean) (Entered: 10/03/2013)
65 Emergency MOTION for Discovery Deadline Extension for Court−Ordered Depositions by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 8 of 10

10/04/2013 10/04/2013 10/07/2013 10/07/2013 10/08/2013 10/09/2013
10/10/2013 10/10/2013
10/10/2013 10/10/2013 10/11/2013 10/11/2013 10/11/2013 10/11/2013

Exhibit C, # 4 Text of Proposed Order)(Kelly, Sean) (Entered: 10/03/2013)
66 RESPONSE to Motion re 65 Emergency MOTION for Discovery Deadline Extension for Court−Ordered Depositions filed by Anthony Betterton, Jill McCauley, Upshur County. (Hawkins, Robert) (Entered: 10/04/2013)
67 NOTICE of Discovery Disclosure by Anthony Betterton, Jill McCauley, Upshur County (Hawkins, Robert) (Entered: 10/04/2013)
68 AMENDED ANSWER to Plaintiff's 5 Amended Complaint by Anthony Betterton, Jill McCauley, Upshur County. (Weiland, Stephen) (Entered: 10/07/2013)
69 AMENDED COMPLAINT against All Defendants, filed by Prison Legal News.(Kelly, Sean) (Entered: 10/07/2013)
70 NOTICE by Prison Legal News re 65 Emergency MOTION for Discovery Deadline Extension for Court−Ordered Depositions (McCoy, Kimberly) (Entered: 10/08/2013)
NOTICE of Hearing on Motions 63 Motion for Reconsideration re 61 Order on Motion to Continue and Motion to Extend Deadlines, 65 Emergency Motion for Discovery Deadline Extension for Court−Ordered Depositions : Telephonic Motion Hearing set for 10/11/2013 09:00 AM before Judge Rodney Gilstrap. The Court's conference number is (903) 938−8452. ***The parties are to contact the Court AFTER all parties have joined the call.***(jml) (Entered: 10/09/2013)
71 MOTION To Exclude Plaintiff's Expert Witnesses by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Exhibit A−B, # 2 Text of Proposed Order)(Weiland, Stephen) (Entered: 10/10/2013)
72 MOTION for Summary Judgment and Permanent Injunction with Memorandum in Support by Prison Legal News. (Attachments: # 1 Exhibit A − Wright Declaration, # 2 Exhibit A−1 − September 2013 PLN, # 3 Exhibit A−2 − Returned Mail, # 4 Exhibit A−3 − Inmate Declarations, # 5 Exhibit A−4 − Upshur County Mail Policy, # 6 Exhibit A−5 − Upshur County Handbook, # 7 Exhibit A−6 Prisoner Correspondence, # 8 Exhibit B − McCoy Declaration, # 9 Exhibit B−1 − Deposition of Upshur County, # 10 Exhibit B−2 − Deposition of Jill McCauley, # 11 Exhibit B−3 − Declaration of Jill McCauley, # 12 Exhibit B−4 − Sept 2013 Correspondence Plan, # 13 Exhibit B−5 − July 2011 Email Larsen to McCauley, # 14 Text of Proposed Order Proposed Order)(Leatherbury, Thomas) (Entered: 10/10/2013)
73 MOTION for Partial Summary Judgment and Brief in Support by Anthony Betterton, Jill McCauley. Responses due by 10/31/2013 (Attachments: # 1 Exhibit A−K, # 2 Text of Proposed Order)(Weiland, Stephen) (Entered: 10/10/2013)
74 ***DEFICIENT DOCUMENT. PLEASE IGNORE.*** MOTION to Withdraw as Attorney Scott Medlock by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Medlock, Scott) Modified on 10/11/2013 (ch, ). (Entered: 10/10/2013)
NOTICE of Deficiency regarding the 74 submitted NO CERTIFICATE OF CONFERENCE. Correction should be made by one business day. MOTION HAS BEEN TERMINATED. (ch, ) (Entered: 10/11/2013)
75 MOTION to Withdraw as Attorney Scott Medlock by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Medlock, Scott) (Entered: 10/11/2013)
76 ORDER granting 75 Motion to Withdraw as Attorney. Attorney Scott Medlock terminated. Signed by Judge Rodney Gilstrap on 10/11/2013. (ch, ) (Entered: 10/11/2013)
Minute Entry for proceedings held before Judge Rodney Gilstrap: Telephonic Motions Hearing held on 10/11/2013 re 65 Emergency Motion for Discovery Deadline Extension for Court−Ordered Depositions 63 Motion for Reconsideration re 61 Order on Motion to Continue, and Motion to Extend Deadlines. Parties are to meet and confer regarding a new schedule that includes a January 13, 2014 Jury Selection date and submit a proposed schedule within 7 days. (Court Reporter

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 9 of 10

10/15/2013 10/15/2013 10/15/2013 10/18/2013
10/21/2013 10/22/2013
10/23/2013 10/23/2013 10/25/2013 10/28/2013 10/28/2013 10/28/2013 10/30/2013 10/30/2013 10/30/2013 10/30/2013 11/01/2013

Shelly Holmes, CSR.) (jml) (Entered: 10/18/2013)
77 AMENDED ANSWER to Plaintiff's Second 69 Amended Complaint by Anthony Betterton, Jill McCauley, Upshur County. (Weiland, Stephen) (Entered: 10/15/2013)
78 MOTION to Compel Production by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Kelly, Sean) (Entered: 10/15/2013)
79 Amended MOTION to Compel Production by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Text of Proposed Order)(Kelly, Sean) (Entered: 10/15/2013)
80 Joint MOTION to Amend/Correct 60 Order, Set Deadlines/Hearings,, by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Wilson, Marissa) (Additional attachment(s) added on 10/21/2013: # 2 REVISED ORDER) (ch, ). (Entered: 10/18/2013)
81 MOTION Joint Motion to Request Mediation Before U.S. Magistrate Judge Roy Payne by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Wilson, Marissa) (Entered: 10/21/2013)
82 AMENDED DOCKET CONTROL ORDER − Motions due by 12/20/2013., Proposed Pretrial Order due by 12/20/2013., Jury Selection set for 1/13/2014 09:00AM before Judge Rodney Gilstrap., Jury Trial set for 1/13/2014 09:00 AM before Judge Rodney Gilstrap. Signed by Judge Rodney Gilstrap on 10/21/2013. (ch, ) (Entered: 10/22/2013)
83 ORDER denying 63 Motion for Reconsideration ; denying 65 Motion for Discovery. Signed by Judge Rodney Gilstrap on 10/22/2013. (ch, ) (Entered: 10/23/2013)
84 ORDER REFERRING CASE to Mediator Judge Payne, granting 81 MOTION Joint to Request Mediation before the US Magistrate Judge. Signed by Judge Rodney Gilstrap on 10/22/2013. (ch, ) (Entered: 10/23/2013)
85 MOTION for Protective Order and Brief in Support by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Grigson, Joanna) (Entered: 10/25/2013)
86 RESPONSE in Opposition re 85 MOTION for Protective Order and Brief in Support filed by Prison Legal News. (McCoy, Kimberly) (Entered: 10/28/2013)
87 NOTICE by Prison Legal News re 79 Amended MOTION to Compel Production Notice of Withdrawal of Motion to Compel Production of Insurance Agreements (McCoy, Kimberly) (Entered: 10/28/2013)
88 ORDER denying 85 Motion for Protective Order. Defendants shall produce Sheriff Betterton for deposition on October 30, 2013, at 9:00 AM as presently scheduled. Signed by Judge Rodney Gilstrap on 10/28/13. (mrm, ) (Entered: 10/28/2013)
89 ORDER SCHEDULING MEDIATION CONFERENCE − Mediation Conference set for 11/6/2013 01:00 PM before Magistrate Judge Roy S. Payne. Signed by Magistrate Judge Roy S. Payne on 10/30/2013. (ch, ) (Entered: 10/30/2013)
90 NOTICE of Settlement by Prison Legal News (Wilson, Marissa) Modified on 10/30/2013 (sm, ). (Entered: 10/30/2013)
NOTICE that the mediation set for November 6, 2013 is CANCELLED. (bga, ) (Entered: 10/30/2013)
91 Joint MOTION to Stay / Abate by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Wilson, Marissa) (Entered: 10/30/2013)
92 NOTICE of Advisory regarding office fire by Prison Legal News (McGiverin, Brian) (Entered: 11/01/2013)

Case: 2:12-cv-699 As of: 10/15/2014 04:59 PM CDT 10 of 10

11/04/2013
12/04/2013 12/06/2013 12/06/2013 12/13/2013 12/19/2013 03/19/2014

93 ORDER granting 91 Motion to Stay. ORDERS that all proceedings are abated and deadlines suspended for thirty (30) days for the Parties to finalize settlement documents and file an agreed judgment with the Court. Signed by Judge Rodney Gilstrap on 11/4/2013. (ch, ) (Entered: 11/04/2013)
94 Joint MOTION for Extension of Time to File Agreed Judgment by Anthony Betterton, Jill McCauley, Upshur County. (Attachments: # 1 Text of Proposed Order)(Weiland, Stephen) (Entered: 12/04/2013)
95 ORDER granting 94 Motion for Extension of Time to File An Agreed Judgment. Signed by Judge Rodney Gilstrap on 12/5/2013. (ch, ) (Entered: 12/06/2013)
96 Proposed Agreed Judgment . (Attachments: # 1 Exhibit A)(Weiland, Stephen) (Entered: 12/06/2013)
97 NOTICE of Settlement Joint Notice of Executed Settlement Agreement by Anthony Betterton, Jill McCauley, Prison Legal News, Upshur County (Wilson, Marissa) (Entered: 12/13/2013)
98 AGREED FINAL JUDGMENT signed by Judge Rodney Gilstrap on 12/18/13. (bas, ) (Entered: 12/19/2013)
99 NOTICE by Anthony Betterton, Jill McCauley, Upshur County of Compliance (Hawkins, Robert) (Entered: 03/19/2014)