• • !, i I.~·ILED " 'r (, ,!' ~ T

BRIAN M. BARNARD

USB # 0215

JAMES L. HARRIS, Jr. USB # 8204

UTAH LEGAL CLINIC

Attorneys for PLAINTIFF

Cooperating Attorneys for

UTAH CIVIL RIGHTS & LIBERTIES

FOUNDATION, INC.

214 East Fifth South Street

Salt Lake City, Utah 84111-3204

Telephone: (801) 328-9531

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

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PRISON LEGAL NEWS, a registered name of PRISONER'S LEGAL NEWS, a non-profit Washington corporation,

COM P L A I N T

Plaintiff, vs.
MILLARD COUNTY, a government entity; ED PHILLIPS, Sheriff of Millard County; PENNY PROWS, Staff Member, Millard County Jail; MICHAEL WINGET, Staff Member, Millard County Jail; CAPT. DEKKER, Commander, Millard County Jail; and JOHN DOES I - X, Officers of Millard County Jail,

2:01 Cy -0580ST
Case No.
2:01-CV-__________

Defendants.

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• •
Plaintiff PRISONER'S LEGAL NEWS, a Washington non-profit corporation, (d.b.a. PRISON LEGAL NEWS) by and through counsel, Brian M. Barnard and James L. Harris, Jr. complains, states, alleges and claims as causes of action against defendants as follows:
I. Introduction 1. This 42 U.S.C. § 1983 action seeks equitable relief from
defendants' practices and enforcement of unconstitutional written and unwritten policies of the defendants which prevents plaintiff PRISONER'S LEGAL NEWS (PLN) from distributing its publication to inmates in the Millard County Jail. That policy is referred to hereinafter as the "no publication policy." The "no publication policy" is unlawful under the First and Fourteenth Amendments of the United States Constitution and Art. I, § 7 and § 15 of the Utah Constitution ("Art. I, § 7 & § 15"). At this time, plaintiff seeks no money damages but only equitable relief from the "no publications policy" which restricts the plaintiff's rights under the federal and state constitutional rights to free expression and deprives plaintiff of property and liberty interests without due process.
2

•

•

II. Jurisdiction and Venue 2. This Court has jurisdiction over this action invoking
federal statutory and constitutional rights pursuant to 28 U.S.C. § 1331, § 1343 (a) (3), and § 1343 (a) (4) .
3. This Court has jurisdiction to grant declaratory relief in this action pursuant to 28 U.S.C. § 2201.
4. This Court has supplemental jurisdiction over plaintiff's state constitutional claims pursuant to 28 U.S.C. § 1367(a). The plaintiff's state claims are related to, based upon the same operative facts and form part of the same case and controversy as the federal constitutional claims.
5. Venue is proper in the Central Division of the United states District Court for the District of Utah pursuant to 28 U.S.C. § 1391(b). All conduct complained of herein occurred or will occur in Millard County, Utah and the Central Division. The Millard County Jail is located at Fillmore, Utah in Millard County, Utac and the Central Division of this Court. The parties defendant to this action reside and/or have official duties in the Central Division of the District of Utah. Millard County maintains its principal place of business in the Central Division of Utah. The individual defendants are sued personally and as government agents and actors.
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6. The plaintiff has no administrative remedies available through the Millard County Jail. Defendants preclude the plaintiff from pursuing any administrative remedy. Defendants refuses to deliver to Millard County Jail inmates editions of plaintiff's pUblication. Defendants given no notice to plaintiff of that refusal. Because of defendant's failure to give plaintiff notice of their actions, defendants prevent plaintiff from pursuing any administrative grievance.
III. Parties 7. PRISONER'S LEGAL NEWS (PLN) a non-profit Washington
corporation has offices in Seattle, Washington and pUblishes and distributes nation-wide a monthly magazine known as Prison Legal News (" PLN") .
8. MILLARD COUNTY is a governmental entity created under the statutes of the State of Utah and governing the geographical area known as Millard County, Utah. It is the employer of all other defendants. It is the owner and operator of the Millard County Jail.
9. ED PHILLIPS is the duly elected and serving Sheriff of Millard County. As such, on behalf of Millard County, he is ultimately responsible for supervising the Millard County Jail and its staff and for formulating, adopting, implementing and
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• •
enforcing all Millard County Jail rules and policies, including those regulating newspapers, magazines and other printed materials at the Millard County Jail. Sheriff Phillips is the policy maker for Millard County with regard to the operations of the Millard County Jail. He is an employee, officer and agent of Millard County. He is the supervisor of defendants Winget and Prows. He is the supervisor of JOHN DOES I-X.
10. CAPT. DEKKER is the Commander of the Millard county Jail. As such, on behalf of Millard County, he is responsible for supervising the Millard County Jail and its staff and for formulating, adopting, implementing and enforcing all Millard County Jail rules and policies, including those regulating newspapers, magazines and other printed materials at the Millard County Jail. He is an employee, officer and agent of Millard County. He is the immediate supervisor of defendants Winget and Prows. He is the immediate supervisor of JOHN DOES I-X.
11. MICHAEL WINGET and PENNY PROWS are officers and agents of the other defendants and/or Millard County. These defendants and each of them are involved in the receipt and processing of mail at the Millard County Jail sent by PLN to inmates of the Millard County Jail. They enforce the uno publications policyu on a day-to-day basis at the Millard county Jail.
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12. JOHN DOES I - X are officers and agents of the other defendants and/or Millard County. Their full true and correct names are unknown to plaintiff at this time. When plaintiff discovers the full, true and correct names of these defe~dants, plaintiff will amend the complaint in this action. These defendants and each of them are involved in the receipt and processing of mail at the Millard County Jail sent by PLN to inmates of the Millard County Jail. They enforce the "no publications policy" on a day-to-day basis at the Millard County Jail.

IV. Facts

13. At all relevant times, defendants were, are and

will be acting under color of state law, custom and usage, and

were and are government actors.

14. For more than ten (10) years, plaintiff PLN has

published a monthly magazine ("Prison Legal News"

"PLN") which

provides information with regard to issues affecting prisons,

inmates, prison operations, related litigation, etc.

15. Plaintiff, PLN currently has subscribers who are

inmates housed in the Millard County Jail. 16. Plaintiff, PLN has in the past had subscribers who were

inmates housed in the Millard County Jail.

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• •

17. Defendants and/or their officers and agents in control

of the Millard County Jail have enacted and are enforcing

practices, rules and regulations governing distribution of and

access to publications. Defendants and/or their officers and

agents in control of the Millard County Jail have enacted and are

enforcing certain unwritten practices governing distribution of

and access to certain publications. As a result of said practices, and the unwritten and written policy of the de-

fendants, inmates are denied certain publications. As a result

of said practices and policies at the Millard County Jail, plaintiff PLN is denied the ability to deliver its publication,

"PLN" to inmates in the Millard County Jail. 18. Defendants' Millard County Jail Policy 508, 'II 2 (f) (5),

p. 2 provides:
other reading materials that will not be allowed into the facility are:

*

*

*

f. publications that encourage or provide instruction for the commision of criminal activity or that is contrary to the preservation of safety, law, and order.

19. Defendants' Policy 508, 'II 3(a), p. 2 provides:

Newspapers: a. Inmates may not subscribe to newspapers.

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20. Defendants' Policy 508, ~ 4, p. 2 provides:
Magazines: Magazines may be approved on a case by case basis depending on the length of time an inmate will be incarcerated at the jail and his housing classification.
21. Defendants' Policy 501, ~ 13, p. 6 provides:
Grieving the Mail System: Inmates may grieve the mail system through the regular inmate grievance system. The public may grieve or appeal mail system actions to the Jail Commander verbally or in writing. Whenever possible, appeals and grievances will be heard within two working days of being received.
22. Defendants' policies contain no guidelines or criteria
with regard to Policy 508, ~ 4, p. 2 which purports to allow
magazines to "be approved on a case by case basis."
23. Defendants' "no publications policy" prohibits inmates
from ordering, receiving, possessing or reading most written or
printed materials (newspapers and magazines, including the

"PLN") .
24.

Defendants' "no publications policy" bans "PLN" from

the Millard County Jail. 25. The "no publications policy," developed and enacted by

defendants and enforced by them, deprives plaintiff of its constitutional rights of free expression and due process.
26. There is no legitimate basis for defendants' total ban on all magazines and newspapers in the Millard County Jail.

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27. The "no publications policy" is not reasonably related to any legitimate penological interests.
28. No valid rational connection exists between defendants' "no publications policy" and any legitimate state interests which the policy is intended to protect.
29. Defendants' "no publications policy" leaves Millard County Jail inmates with no alternative means of exercising free expression rights by receipt, possession and enjoyment of legal reading and other materials through the mail.
30. Defendants' "no publications policy" leaves plaintiff with no alternative means of exercising free expression rights in sending "PLN" to Millard County Jail inmates.
31. Accommodation of the free expression and due process rights of the plaintiff and Millard County Jail inmates will not have significant impact at the Millard County Jail.
32. Readily available alternatives exist to defendants' current "no publications policy" which, at a de minimis cost, could easily meet any legitimate or significant interests of defendants wichout sacrificing the plaintiff's free expression and due process rights.
33. PLN's monthly magazine (currently approximately 24 pages in length) contains news articles and other materials of interest to correctional officials and inmates with regard to
9

• •
litigation affecting prisons, jails and inmates. That magazine is called Prison Legal News ("PLN") Litigation trends, recent court rulings and decisions, and other issues of interest to inmates and correctional officers are presented in monthly editions of "PLN". PLN has been distributing its magazine for more than ten (10+) years. The contents of "PLN" are beneficial to inmates and provide information as to inmates' legal rights and pending litigation.
34. During 2001, editions of "PLN" mailed to subscribing inmates in the Millard County Jail have not been delivered to the inmates. Those editions have been placed by defendants into the inmates' property storage.
35. During 2001, when editions of "PLN" mailed to subscribing inmates in the Millard County Jail have not been delivered to the inmates, defendants have informed the inmates of the denial of the material.
36. During 2001, when editions of "PLN" mailed to subscribe inmates in the Millard County Jail have not been delivered to the inmates, defendants denied "PLN" because it as "contraband" and/or "a threat to security."
37. The rejection of editions of "PLN" was made by WINGET, PROWS and/or JOHN DOE I - X acting on behalf of the other
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defendants and following the practices and policies of the other defendants.
38. PLN has never received any notice from defendants with regard to defendants' recent refusal to deliver editions of "PLN" . PLN has never been informed of any appeal or rights that it may have to challenge the rejections by defendants.
V. Causes of Action 39. Defendants' uno publications policy" violates the free
expression rights of the plaintiff protected by the First Amendment and Art. I, § 15 of the Utah Constitution.
40. Defendants' actions and policy have deprived plaintiff of property without due process through defendants' summary rejection of "PLN".
41. Defendants' actions and policy have deprived plaintiff of a liberty interest without due process by not giving notice and by not allowing plaintiff to challenge defendants' summary rejection.
42. Defendants' actions and uno publications policy" violates the due process protections afforded the plaintiff by the Fourteenth Amendment and Art. I, § 7 of the Utah Constitution.
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43. Plaintiff has suffered, is suffering and will continue to suffer harm as a result of enforcement of defendants' "no publications policy.H
VI. Possible Damages 44. Plaintiff PLN seeks no damages at this time. 45. Plaintiff PLN may seek damages, if a Temporary
Restraining Order and/or a Preliminary Injunction are not issued in this acticn.
46. Plaintiff PLN may seek leave of the Court to amend this action to seek damages, if appropriate.
VII. Immediate Equitable Relief 47. Unless a temporary restraining order and a preliminary
injunction are issued, plaintiff will continue to suffer immediate and irreparable harm and a deprivation of its First Amendment and due process rights as well as a violation of the rights secured by the Utah Constitution, Art. I, § 7 & § 15. Irreparable injury "is presumed to exist whenever First Amendment constitutional rights are infringed." Albright v. Board of Education, 764 F. Supp. 687, 682 (D. Utah 1987).
48. Plaintiff is entitled to a prospective temporary restraining order, a preliminary injunction, a permanent injunction
12

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and declaratory relief against defendants' "no publications policy."
VIII. Court Costs and Attorney Fees 49. Plaintiff PLN has incurred and will incur court costs
and attorney fees in the pursuit of this matter. 50. Pursuant to 42 U.S.C. § 1983 and § 1988, plaintiff is
entitled to reimbursement for costs and fees incurred.
IX. Demand for Relief WHEREFORE, plaintiff, PLN demands the following relief: 1. A determination and declaratory judgment that defen-
dants' "no publications policy" violates the United States and the Utah Constitutions;
2. A temporary restraining order and a preliminary injunction during the pendency of this action enjoining defendants from continuing to enforce their "no publication~ policy" at Millard County Jail;
3. An immediate order that defendants are to deliver to Millard County Jail inmates the editions of "PLN" that have Deen put into the inmates' property as "contraband" and/or as "a threat to security;"
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4. A permanent and final order enjoining defendants henceforth from enforcing their "no publications policyN at the Millard County Jail;
5. The right to seek leave to seek damages if a temporary restraining order and/or a preliminary injunction are not issued;
6. An award of attorneys fees under 42 U.S.C. § 1988; 7. An award of court costs; and, 8. For such other and further equitable relief as the court deems just and proper. DATED this 30'" day of JULY 2001.
UTAH LEGAL CLINIC Attorneys for PLAINTIFF
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CERTIFICATE OF MAILING
I hereby certify that I caused to be mailed a true and correct copy of the foregoing COMPLAINT to: LeRay G. Jackson Millard County Attorney Attorney for Defendants 259 North Highway 6 P.O. Box 545 Delta, Utah 84624
on the 30t>, day of JULY 2001, postage prepaid in the United states Postal Service.
UTAH LEGAL CLINIC Attorneys for PLAINTIFF

C:\~98~iCN~E\YOllNG\l'LN rr,j lIard C'OMPI,AINT 012(1()1.''''~'d/8MF

L.

, Jr.

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 FILED
CLERK. II :i :lISTRiCl COIJRT
23 ~PR OHM I(): 15
IN THE UNITED STATES COURT FOR THE DISTRICT OF UT-MSTRICT OF UTAH

CENTRAL DNISION

BtiEPUTY CLERK

PRISON LEGAL NEWS, et. aI., Plaintiffs,
vs.
MILLARD COUNTY, et. aI., Defendants,

JUDGMENT AND ORDER Case No. 2:01-CV-580-ST

This matter comes before the Conrt on Plaintiffs' Motion to Amend Judgment and Order. The Conrt, having reviewed the record in this case, along with the applicable rules, and being otherwise fully advised, hereby ORDERS:
1. That the Plaintiffs' Motion is GRANTED and the Judgment and Order of Dismissal with Prejudice entered by this Court on January 7,2002 is VACATED.
2. That judgment is entered against Defendants and in favor of Plaintiffs for the sum if three hundred dollars ($300.00) plus conrt costs and attorney fees, in accordance with the parties' agreement under Fed. R. Civ. P. Rule 68.
3. That the above-referencedjudgrnent is in full satisfaction of Plaintiffs' declaratory, injunctive, and monetary claims for relief arising out of all pleadings in this matter against all named and unnamed Defendants.

4. That the above-referenced judgment has previously been satisfied as established by a Satisfaction of Judgment filed by Plaintiffs' counsel and dated November 5, 2001.
DATED this 2J r}-dayofApril, 2002.
BY THE COURT:

kam United States District Court
for the District of Utah April 23, 2002
* * CERTIFICATE OF SERVICE OF CLERK * *
Re: 2:01-cv-00580
True and correct copies of the attached were either mailed or faxed by the clerk to the following:
Brian M. Barnard, Esq. UTAH LEGAL CLINIC 214 E 500 S SALT LAKE CITY, UT 84111-3204 JFAX 9,3289533
Mr. Frank D Mylar, Esq. MYLAR & TROST 6925 UNION PARK CTR STE 600 SALT LAKE CITY, UT 84047

 
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Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:01-cv-00580-TS

CLOSED

Prison Legal News v. Millard Cnty, et al Assigned to: Judge Ted Stewart Demand: $0 Cause: 42:1983 Civil Rights Act Plaintiff Prison Legal News a non-profit Washington corporation doing business as Prisoners Legal News
V. Defendant Millard County a government entity
Defendant Ed Phillips Sheriff of Millard County

Date Filed: 07/30/2001 Date Terminated: 01/07/2002 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Brian M. Barnard UTAH LEGAL CLINIC 214 E 500 S SALT LAKE CITY, UT 84111-3204 (801)328-9531 Email: ulcr2d2c3po@utahlegalclinic.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James L. Harris, Jr. BRIAN S KING ATTORNEY AT LAW 336 S 300 E STE 200 SALT LAKE CITY, UT 84111 (801)532-1739 Email: james@briansking.com ATTORNEY TO BE NOTICED
represented by Frank D Mylar MYLAR LAW, P.C. 6925 S UNION PK CTR STE 600 MIDVALE, UT 84047 (801)858-0700 Email: mylar-law@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank D Mylar (See above for address) LEAD ATTORNEY

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Defendant Penny Prows Staff Member, Millard COunty Jail
Defendant Michael Winget Staff Member, Millard County Jail
Defendant Dekker Captain

ATTORNEY TO BE NOTICED
represented by Frank D Mylar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank D Mylar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/30/2001 08/01/2001
08/01/2001 08/09/2001 09/17/2001 09/24/2001 10/10/2001 10/23/2001 10/23/2001 10/24/2001

#

Docket Text

1 Complaint filed, assigned to Judge Ted Stewart Receipt no.: 114963 (kvs) (Entered: 07/31/2001)

2 Order of Reference pursuant to 636(b)(1)(A) signed by TS, 7/31/01. Mag directed to hear & determine any non- dispositive pretrial matters pending before the Court. cc:attys (Entered: 08/02/2001)

Case referred to magistrate under 28:636(b)(1)(A). (Entered: 08/02/2001)

3 Case referred to Judge Ronald N. Boyce cc: atty (ce) (Entered: 08/09/2001)

4 Affidavit of Raymond R. Hanson Re: Prison Legal News (Entered: 09/18/2001)

5 Amended complaint by Prison Legal News. Amends [1-1] complaint. (Entered: 09/25/2001)

6 Affidavit of Donald W. Miniken Re: as custodian of records of PLN (Entered: 10/11/2001)

7 Answer by Millard Cnty, Ed Phillips, Penny Prows, Michael Winget to amended complaint (Entered: 10/24/2001)

8 Certificate of service by Millard Cnty, Ed Phillips, Penny Prows, Michael Winget re: Rule 68 Offer of Judgment (Entered: 10/24/2001)

Clerk's mailing of certificate of acknowledgment of alternative dispute resolution option. Mailed or faxed to plaintiff Prison Legal News, defendant Millard Cnty, defendant Ed Phillips, defendant Penny Prows, defendant Michael Winget (Entered: 10/24/2001)

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10/26/2001 10/30/2001 11/13/2001 01/02/2002 01/07/2002
01/07/2002 01/07/2002 01/09/2002 01/16/2002 01/16/2002 01/30/2002 02/06/2002
03/14/2002 04/12/2002
04/22/2002

9 Notice of Acceptance of Offer by Prison Legal News in the amt of $300 pursuant to FRCP 68. (Jgm to be entered by Clerk of Court) (Entered: 10/29/2001)
10 Bill of costs from Prison Legal News in the amt of $150.00, court costs (Entered: 10/31/2001)
11 Objections by Prison Legal News to proposed order (ksp) (Entered: 11/13/2001)
12 Objections by Millard Cnty, Ed Phillips, Penny Prows, Michael Winget, Dekker to proposed order/jgm dated 12/26/01 (Entered: 01/03/2002)
13 Judgment that all claims arising out of the pldgs against all dfts are dism w/prej based upon pla's accept of dfts' Rule 68 Offer of Jgm; all proposed monetary jgm amts, incl claims for attys fees and costs, have been fully satisfied, signed by TS, 1/7/02, cc: atty [EOD Date 1/7/02] (Entered: 01/07/2002)
CASE NO LONGER REFERRED TO Judge Ronald N. Boyce (Entered: 01/07/2002)
Case closed per jgm no. 13 (Entered: 01/07/2002)
14 Request for hrg filed by Prison Legal News re: [12-1] objection, [11-1] objection to the proposed final judgments (Entered: 01/09/2002)
15 Motion by Prison Legal News to amend [13-1] judgment order (Entered: 01/17/2002)
16 Memorandum by Prison Legal News in support of [15-1] motion to amend [13-1] judgment order (Entered: 01/17/2002)
17 Memorandum by Millard Cnty, Ed Phillips, Penny Prows, Michael Winget, Dekker in opposition to [15-1] motion to amend [13-1] judgment order (Entered: 01/30/2002)
18 Notice of Hearing filed : Motion hearing set for 3:00 3/20/02 for [15-1] motion to amend [13-1] judgment order To be held before Judge TS cc:atty ( Ntc generated by: Chambers TS case mgr) (Entered: 02/06/2002)
19 AMENDED Notice of Hearing filed: Motion hearing re-set for 10:00 4/17/02 for [15-1] motion to amend [13-1] judgment order To be held before Judge TS cc:atty ( Ntc generated by: Mgr) (Entered: 03/14/2002)
20 AMENDED Notice of Hearing filed : Motion hearing re-set for 1:00 4/23/02 for [15-1] motion to amend [13-1] judgment order To be held before Judge Ted Stewart cc:atty ( Ntc generated by: SM, Courtroom deputy) (ksp) (Entered: 04/12/2002)
21 AMENDED Notice of Hearing filed : Motion hearing reset for 11:00 4/23/02 for [15-1] motion to amend [13-1] judgment order To be held before Judge TS cc:atty ( Ntc generated by: TS's crtrm dep) (tsh) (Entered: 04/22/2002)

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04/23/2002

22 Order granting [15-1] motion to amend [13-1] judgment order, vacating [13-1] judgment order ; jgm is entered against dfts in favor of plas for the sum of $300, plus court costs & attys fees; jgm was previously satisfied by Satisfaction of Jgm dated 11/5/01, signed by Judge Ted Stewart, 4/23/02 cc:atty (Entered: 04/23/2002)

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04/25/2007 11:07:37

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 BRIAN M. BARNARD

USB /I 0215

JAMES L . HARRIS , Jr . USB I 8204

UTAH LEGAL CLI NI C

Attorneys for PLAINTIFF

Cooperating Attorneys for

UTAH CIV I L RIGHT!;; 6- LIBERTIES

FOUNDATION, INC .

214 East Fifth South Street

Salt Lake City , Ut ah 84111-3204

Telephone : (801) 32· -9531

IN THE UNITED STATES DISTRICT COURT

FOR THE OISTRICT OF UTAH

CENTRAL DIVISION

PRISON LEGAL NEWS, a registered name of PRISONER'S LEGAL NEWS , a non-profit Washinqton corporation,

SETTLEMENT STIPULATION

Flaintiff,
•••
MILLARD COUNTY, a government entIty; ED PHILLIPS , Sheriff of Millard County; PENNY PROWS, Staff Member, Millard County Jail; MICHAEL WINGET , Statf Member , Millard County Jail ; CAPT. DEKKER, Commander, Millard County Jail ; and JOHN DOES I - X, Officers of Millard County Jail,

Case No. 2: 0 1-CV-0580 ST

Defendants .
--------------- ------ ------- -- ---------------------- ----- --------

Plaintiff PR ISONER 'S LEGAL NEWS , a Wash1nqtcn non-profit

corporation, (d . b . a . PRISON LEGAL NEWS ) by and through counsel ,

Brian M. Barnard and James L . Harris, Jr. and the defendants MILLARD COUNTY, a government entity ; ED PHI LLIPS , Sheriff of Millard County ; PENNY PROWS, S t aff Member, Millard Coun t y Jail ; MI CHAEL WINGET , Staff Member , Millard Coun t y Ja il; and , CAPT. DEKKER, Commander, Millard County Jail by and through counsel , in full settlement o f this action ~tipulate and agree as follows :

1.

This Cour t has jurisdiction over the parties and the

subject matter to this action . The allega t ions in the complaint

with regard to jurisd:ction and venue are admitted as true .

2.

PRISONER'S LEGAL NEWS (PLN ) a non-profit Washington

corporation has offices in Seattle, Washington and publishes and

distributes nation-wide a monthly magazine known as Prison Legal

News ("PLN") .

3 . MILLARD COUNTY is a governmental entity created under

the statu t es of the State of Utah and governing the geographical

area known as Millard County , U:ah. It is the emp loyer of all o t her defendants . I t is the owner and operator of the Millard

County Jail .

4.

ED PHILLIPS is the duly elec t ed and servlng Sheriff of

Millard County . As such , on beha lf of Millard County , he is

ultimately responsible for supervising the Millard County Jail

2

and its staff and for formulating , adopting, implementing and

enforcing all Millard County Jail rules and policies , including

those regulating newspapers, Il'.agazl.nes and other printed

materials at the Millard County Jail. Sheriff Phillips is the

policy maker for Millard County with regard to the operations of

the Millard County Jail. He is an err.ployee , officer and agent of

Millard County . He is the supervisor of defendants Winget and

Prows. He is the supervisor of JOHN DOES I-X.

5.

CAPT. DEKKER is the Co~ander of the Millard County

Jail . As such, on behalf of Millard County, he is responsible

for supervising the Millard County Jail and i t s staff and for

formulating, adopting, implementing and enforcing all Millard

County Jail rules and policies, including those regula t ing

newspapers , magazines and other printed materials at the Millard

County Jail . He is an employee, officer and agent of Millard

County. He is the immediate supervisor of defendan t s Winget and

Prows. He is the immediate supervisor of JOHN DOES I-X .

6.

MI CHAEL WINGE T and PENNY PROWS are officers and agents

of the other defendants and/or Millard County . These defendants

and each of them are involved in the receipt and processing of

mail at the Millard County Jail sent by PLN to inmates of the

3

Millard Count y J"il . They enforce the '·no publicat ions policy"

on a day- to - day basis at the Millard County Jail .

7.

At all relevant times , defendants were , are and

will be acting under color of state law, custom and usage , and

were and are gover~~ent actors .

8.

For more than ten (10) years , p laintiff PLN has

published a r:1onthly magazine 1'· Prison Legal News " -- ·· PLN" ) wh ich

provi des information with regard to i ssues affect ing p r Lsons ,

il'.mates , prison operations, related litiga t ion , etc .

9.

Plaintiff , PLN currently has subscr ibers who are

inmates housed in the Millard County Jail .

10.

Pl aintiff, PLN has in the p ast had subscr iber s who

were inmates housed in the Millard Coun t y Jai l .

11 .

Defendants and/or their officers and agents in

control of the Millard County Jail have enacted and are enforc i ng

practices , rules and regulations governing distribution o f and

. access to publicat ions . Defendan t s and/or t heir officers and
agents in control of the Millard County Jail have enacted and are

enforcing certain unwr:tten practices governing distribut ion of

and access to ce r tain publications . As a result of said

practices , and the un·.... ritten and written policy ot t he de-

fendants, i~"Uates ao:e denied certai n publications . As a r e sult

of said pra ctices and policies at the Millard County Jail ,

4

plaintiff PLN has been denied the ability to del i ve~ i t s

publication, "PLN" to inmates in the Mi llar-d county Jail .

12.

Defendants ' Milla~d County Jail Policy 508, i

2(f) (5), p. 2 p~ovides :

Other reading materials t hat will not be allowed int o the facility are :

•

•

•

t . publications that encou~age or provide inst~ u ction
for the conmission o f criminal activity or that is contr-a~y to the preservation of safety, law , and or-der- .

13.

De f endants ' Po l icy 508, i 3(a) , p . 2 p~ovides :

Newspapers:

a . Inmates may not subscri be to newspape r s .

14 .

De~ end ants ' Policy 508 , '14 , p . 2 provides :

Magazines: Magazines may be approved on a case by case basis depending on the length of time an inmate will be incarcerated at the jail and his housing classification .

15 .

Defendants ' Policy 501, 'f 13 , p . 6 provides :

Grieving the Mail System: Inma tes may grieve t he mail system through the regula~ inmate grievance system . The public may grieve o~ appeal mail sys t em actions to the Jail Commander ver bally or in writing . Wheneve~ possible , appeals and g~ievances will be heard within two wo~king days o f being ~eceived.

16 .

Defendants ' policies contain no guidelines or

criteria with ~egard to Policy 508 , 'I 4, p. 2 wh~ch purports to

allow magazines to "be a pproved on a case by case baSIS ."

5

17 .

Defendants ' "no publ ications policy" prohibits

inmates from ordering, receiving, possessing or reading ~ost

writ t en or printed materials (books , newspapers and magazines , including the" PLN") .

18 .

Defendants ' " no publications policy" bans " PLN" from

the Millard County Jail .

19 .

The " no publicat i ons policy, " developed and enacted

by defendants and enforced by them, de prives p l aintiff of i t s constitutional r ights of free expression and due process .

20 .

There is no legiti~ate basis for defendants ' total

ban on all magazines , newspapers , etc . in the Millard County Jail .

21 .

The " no publications policy" is n ot r eas onably

related to any legitimate penological interests .

22 .

No val i d rational con n ection e x ists be t we en defen-

dants ' " no publications policy" and any legitimate s t ate

interests which the policy is intended to protect .

23 .

Defenda nts ' "no publications policy" leaves Millard

County Jail inmates with no alternative means of exercising free

expression rights by receipt, possession and enjoyment of legal reading and other materials through the mail .

6

24.

DefendaTlt s ' "no publications policy" leaves plaintiff

with no alternative means o f exerci sing f r ee expression righ t s in

sending "PLNff to Millard Coun t y Jail in~ates.

25.

Accommodation of the free e xpr ession and due process

right s of t he plaintiff and Millard County Jail inmates will not

have significant impact at the Millard County Ja i l.

26 .

Readily available al terna ti ves exist to defendants ·

current " no publica ti ons policy" which , at a de minimi s cost,

could easily meet any legitimate or significant interests of

defendants without sacrificing the plaintiff' s fr ee expression

and due p rocess rights .

27 .

During 2001, editions of " PLNff mailed t o subscribing

inma t es in the Millard County Jail have not been delivered t o t he

inmates . Those editions have been placed by defendants into the

inmates' property s t orage .

28 .

During 2001, whe n editions o f "PLN" mailed to

subscribing inmates in the Millard County Ja i l have not been

delivered to the inmates , defendants have in f ormed t he inmates of

the denial o f the material.

29 .

During 2001 , ·...hen editions of " PLN" mailed to

subscribe inma tes in the Mil l ard County Ja~l have not b e en

delivered to the inmates, defendant s denied "PLN" because it as

"contraband" and/or "a threat to security."

7

30.

The rejection of editions of "PLN" was made by

WINGET, PROWS and/or JOHN DOE I - X acting on behalf of the o t her

defendants and following the practices and policies of the other

defendants .

31 .

PLN has never received any notice f rom defendants

wi t h regard to defendants ' recent refusal to deliver editions of

"PLN" . PLN has never been informed of any appeal or rights that

i t may have to challenge the rejections by defendants .

32 .

Defend... nts' "no publications policy" violates the

free expression rights o f the plaintiff protec t ed by the First

Amendment a:ld Art . I , § IS of the Utah Constitution .

33 .

Defendants' ... ctions and policy have deprived

plaintiff of property without due process through defendants '

summary rej ect ion o f " PLN".

34 .

Defendants' actions and policy have deprived

plaint iff of a liberty interest without due process by not giving

notice and by not allowing plaintiff to challenge defendants '

summary rejection .

35.

Defendants ' actions and "no publications policy" vio-

lates the due process protections afforded the plaintiff by the

Fourteenth Amendment and Art. I , § 7 of the Utah Constitution .

36.

Plaintiff ha~ suffered as a result of enforcement o f

defendants ' "no publications policy. "

8

37 .

Plaintiff PLN waives any damages f o~ any mi s-co nduct

of defendants that occurred p~ior to the filing of this action.

38 .

Plaintiff is entitled to a permanent injunction and

declaratory relief against enforcement of defendants ' current "no publications policy . "

39 .

Pl aintiff P LN has incurred court costs and at t orney

fees in the pursuit of this matt er .

40 .

Pursuant to 42 U. S . C . § 1983 and § 198 8 , pla i nt i ff is

entitled to reimbursement for costs and fees incurred .

41.

De f endants shall pay to plaintiffs for the use and

benefit of plaintiffs' counsel the sum of

dollars ($

! as and for said cour t costs and attorney

fees .

42 .

Defendants shall draft, ir..plement and promulgate new

rules and regulations ""ith regard to il"'.ma t e receip t of

newspapers, magazines ar.d bookS . Defendants shall do so within

fourteen (14) days of the execu t ion of this agreement. Those

news rules shall ful:y comply with the Unit ed St ates and Utah

Constitutions .

43 .

Defendants shall immedi a te ly deliver to Millard

County Jail inmates the editions of "PLN" that have been put into

the inmates ' property as "contraband" andlor as "a threat to

security."

9

44 .

Upon full compliance with the t erms o f this IIgree-

ment, an order dismissing this action wi t h prejudice may be

entered by the Court .

DATED this

day of SEPTEMBER 2001 .

UTAH LEGAL CLINIC
Attorneys for PLAINTIFF

MYLAR I> TROST
Attorneys f or DEFENDANTS

bYB-R"IA~N .M-. "BA,RN~AmRD----------­

by

~~M0,"----------­
FRANK MYLAR