Case: 3:17-cv-381 As of: 06/07/2020 04:21 PM EDT 1 of 5
CASREF,CLOSED,CONMAG,JURY,LC1,MEDIATION
U.S. District Court Southern District of Ohio (Dayton) CIVIL DOCKET FOR CASE #: 3:17−cv−00381−SLO

Human Rights Defense Center v. Greene County Ohio et al Assigned to: Magistrate Judge Sharon L. Ovington Referred to: Magistrate Judge Sharon L. Ovington (Settlement) Demand: $100,000 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/31/2017 Date Terminated: 10/12/2018 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Human Rights Defense Center c/o Newman & Meeks LPA

represented by Robert Brand Newman Robert B. Newman LLC 215 East 9th St. Suite 650 Cincinnati, OH 45202 513−639−7000 Fax: 513−639−7011 Email: bob@robertnewmanattorney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce E H Johnson Davis Wright Tremaine LLp 1201 Third Ave Suite 2200 Seattle, WA 98101 206−757−8069 Fax: 206−757−7069 Email: brucejohnson@dwt.com ATTORNEY TO BE NOTICED

Daniel Lucas Marshall P.O. Box 1151 Lake Worth, FL 33460 (561) 360−2523 Fax: (866) 735−7136 Email: dmarshall@hrdc−law.org PRO HAC VICE ATTORNEY TO BE NOTICED

Masimba Maxwell Mutamba P.O. Box 1151 Lake Worth, FL 33460−1151 (561) 360−2523 Fax: (866) 735−7136 Email: mmutamba@hrdc−law.org PRO HAC VICE ATTORNEY TO BE NOTICED

Sabarish P. Neelakanta P.O. Box 1151 Lake Worth, FL 33460−1151 (561) 360−2523 Fax: (866) 735−7136 Email: sneelakanta@hrdc−law.org PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant

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Greene County Ohio c/o Brandon Huddleson, County Administrator
Defendant Kirk Keller, Jail Administrator Individually and in his official capacity
Defendant Gene Fischer, Sheriff individually and in his official capacity
Defendant John and Jane Does 1−10, Staff, individually and in their official capacities

represented by Elizabeth Anne Ellis Office of the Greene County Prosecuting Attorney 61 Greene Street Suite 200 Xenia, OH 45385 (937) 562−5250 Fax: (937) 562−5258 Email: eellis@co.greene.oh.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Renee Hayden Greene County Prosecutor's Office 55 Greene Street Xenia, OH 45385 937−562−5247 Fax: 937−562−5258 Email: shayden@co.greene.oh.us TERMINATED: 03/30/2018
represented by Elizabeth Anne Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Renee Hayden (See above for address) TERMINATED: 03/30/2018
represented by Elizabeth Anne Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Renee Hayden (See above for address) TERMINATED: 03/30/2018
represented by Elizabeth Anne Ellis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephanie Renee Hayden (See above for address) TERMINATED: 03/30/2018

Date Filed 10/31/2017
10/31/2017

# Docket Text
1 COMPLAINT with JURY DEMAND against All Plaintiffs ( Filing fee $ 400 paid − receipt number: 0648−6186058), filed by robert human rights defense center. (Attachments: # 1 Civil Cover Sheet) (Newman, Robert) (Entered: 10/31/2017)
2 MOTION for Preliminary Injunction by Plaintiff Human Rights Defense Center. (Attachments: # 1 Supplement Memorandum, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Newman, Robert) Modified on 11/8/2017 to correct docket text. (jmb). (Entered: 10/31/2017)

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10/31/2017
10/31/2017 10/31/2017 11/07/2017 11/07/2017
11/07/2017
11/07/2017 11/08/2017
11/08/2017 11/08/2017 11/08/2017 11/08/2017 11/13/2017
11/13/2017 11/16/2017
11/16/2017
11/17/2017

3 ORDER transferring case from the docket of the Honorable Michael R. Barrett to the Office of the Clerk for reassignment to the Western Division of the Southern District of Ohio at Dayton. Signed by Judge Michael R. Barrett on 10/31/17. (sct) (Entered: 10/31/2017)
Case transferred in from Cincinnati Division on 10/31/2017, Case Number 1:17−cv−730. Case assigned to Judge Thomas M. Rose. (sct) (Entered: 10/31/2017)
***If this case is referred, it will be to Magistrate Judge Michael J. Newman. (sct) (Entered: 10/31/2017)
4 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−6195213) of Daniel Marshall by Plaintiff Human Rights Defense Center. (Newman, Robert) (Entered: 11/07/2017)
5 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−6195231) of Masimba Mutamba by Plaintiff Human Rights Defense Center. (Attachments: # 1 Affidavit) (Newman, Robert) Modified on 11/8/2017 to correct docket text(jmb). (Entered: 11/07/2017)
6 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−6195256) of Sabarish Neelakanta by Plaintiff Human Rights Defense Center. (Attachments: # 1 Affidavit) (Newman, Robert) Modified on 11/8/2017 to correct docket text.(jmb). (Entered: 11/07/2017)
7 NOTICE of Appearance by Stephanie Renee Hayden for Defendants Gene Fischer, Greene County Ohio, Kirk Keller (Hayden, Stephanie) (Entered: 11/07/2017)
Notice of Correction re: 4 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−6195213) of Daniel Marshall: Counsel is instructed to file a Certificate of Good Standing for Daniel Marshall using the event Notice (Other): located under Civil, Notice, Notice(Other) and reference the Motion for Leave to Appear Pro Hac Vice 4 in the docket text. (kma) (Entered: 11/08/2017)
8 NOTICE by Plaintiff Human Rights Defense Center Certificate of Good Standing for Daniel Marshall in support of 4 (Newman, Robert) Modified on 11/8/2017 to correct docket text. (jmb). (Entered: 11/08/2017)
NOTATION ORDER granting 4 Motion for Leave to Appear Pro Hac Vice of Daniel Lucas Marshall. Signed by Judge Thomas M. Rose on 11/8/2017. (jmb) (Entered: 11/08/2017)
ORDER granting 5 Motion for Leave to Appear Pro Hac Vice of Masimba Maxwell Mutamba. Signed by Judge Thomas M. Rose on 11/8/17. (jmb) (Entered: 11/08/2017)
ORDER granting 6 Motion for Leave to Appear Pro Hac Vice of Sabarish Neelakanta. Signed by Judge Thomas M. Rose on 11/8/2017. (jmb) (Entered: 11/08/2017)
Minute Entry for proceedings held before Judge Thomas M. Rose: Telephone Conference held on 11/13/2017. Motion Hearing scheduled for Monday, December 12, 2017 at 9:00 am in Courtroom 2 before Judge Thomas M. Rose (Court Reporter: Mary Schweinhagen) (ep) (Entered: 11/13/2017)
NOTICE of Hearing on Motion 2 MOTION for Preliminary Injunction : Motion Hearing set for 12/11/2017 at 9:00 AM in Courtroom 2 − Dayton before Judge Thomas M. Rose. (ep) (Entered: 11/13/2017)
9 MOTION for Extension of Time to File Response/Reply as to 2 MOTION for Preliminary Injunction New date requested 11/24/2017. by Defendants Gene Fischer, Sheriff, Greene County Ohio, John and Jane Does 1−10, Staff,, Kirk Keller, Jail Administrator. (Hayden, Stephanie) (Entered: 11/16/2017)
NOTATION ORDER granting 9 Motion for Extension of Time to File − Defendant is granted up to and including November 24, 2017 to respond to Plaintiff's Motion for Preliminary Injunction 2 . Signed by Judge Thomas M. Rose on 11−16−2017. (de) (Entered: 11/16/2017)
Set/Reset Deadlines as to 2 MOTION for Preliminary Injunction . Responses due by 11/24/2017. (kma) (Entered: 11/17/2017)

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11/20/2017 11/21/2017 11/22/2017 11/29/2017 01/22/2018 02/21/2018 02/21/2018 03/07/2018 03/30/2018 05/02/2018 05/02/2018 05/03/2018 05/03/2018 06/01/2018 07/12/2018

10 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−6211154) of bruce johnson by Plaintiff Human Rights Defense Center. (Attachments: # 1 Exhibit certificate of good standing, # 2 Exhibit certificate of good standing) (Newman, Robert) (Entered: 11/20/2017)
NOTATION ORDER granting 10 Motion for Leave to Appear Pro Hac Vice of Bruce E.H. Johnson. Signed by Judge Thomas M. Rose on 11/21/2017. (srb) (Entered: 11/21/2017)
11 NOTICE OF WITHDRAWAL OF DOCUMENT by Plaintiff Human Rights Defense Center Motion for Preliminary Injunction (Marshall, Daniel) (Entered: 11/22/2017)
12 NOTICE of Settlement of Injunctive Claims by Plaintiff Human Rights Defense Center (Neelakanta, Sabarish) (Entered: 11/29/2017)
13 NOTICE by Defendants Gene Fischer, Sheriff, Greene County Ohio, John and Jane Does 1−10, Staff,, Kirk Keller, Jail Administrator (Hayden, Stephanie) (Entered: 01/22/2018)
Minute Entry for proceedings held before Judge Thomas M. Rose: Status Conference held on 2/21/2018. Case to be referred to mediation for April 2018. Status Conference set for 4/11/2018 at 9:30 AM by telephone before Judge Thomas M. Rose. Court to initiate call. (ep) (Entered: 02/21/2018)
14 ORDER REFERRING CASE to Magistrate Judge Magistrate Judge Sharon L. Ovington, ADR Coordinator for the purposes of overseeing the mediation process. Signed by Judge Thomas M. Rose on 2/21/18. (ep) (Entered: 02/21/2018)
15 ORDER FOR COURT−CONDUCTED MEDIATION: Mediation Hearing set for 5/3/2018 at 10:00 AM in Federal Building 200 W Second St 5th Floor, Room 523 Dayton OH 45402 before Magistrate Judge Sharon L. Ovington. Signed by Magistrate Judge Sharon L. Ovington on 3/7/2018. (srb) (Entered: 03/07/2018)
16 NOTICE of Substitution of Counsel − Elizabeth Anne Ellis substituting for Stephanie R. Hayden as to Defendants Gene Fischer, Sheriff, Greene County Ohio, John and Jane Does 1−10, Staff,, Kirk Keller, Jail Administrator. (Ellis, Elizabeth) (Entered: 03/30/2018)
17 MOTION for Extension of Time to File New date requested 5/3/2018. by Defendants Gene Fischer, Sheriff, Greene County Ohio, John and Jane Does 1−10, Staff,, Kirk Keller, Jail Administrator. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order) (Ellis, Elizabeth) (Entered: 05/02/2018)
NOTATION ORDER granting 17 Defendants' Motion for Leave to File Answer Instanter. Signed by Magistrate Judge Sharon L. Ovington on 5/2/2018. (lk) (Entered: 05/02/2018)
Minute Entry for proceedings held before Magistrate Judge Sharon L. Ovington: Mediation held on 5/3/2018 − continued in progress (time input for credit to Judge Ovington); Teleconference set for 6/1/2018 at 11:00 AM before Magistrate Judge Sharon L. Ovington. (rp) (Entered: 05/03/2018)
NOTICE OF PROCEEDING: Post Mediation Teleconference set for 6/1/2018 at 11:00 AM before Magistrate Judge Sharon L. Ovington. PLEASE CALL 1−888−684−8852. The ACCESS CODE is 6641708. The SECURITY CODE is 060118. If you have any questions, please call Rose Plummer at 937−512−1570. (rp) (Entered: 05/03/2018)
Minute Entry for proceedings held before Magistrate Judge Sharon L. Ovington: Status Telephone Conference Re: Mediation held on 6/1/2018. This case is at an impasse. (cib) (Entered: 06/01/2018)
NOTICE of Hearing: Pretrial Conference set for Thursday, August 30, 2018 at 9:30 a.m. before Judge Thomas M. Rose. Parties shall call 1−888−684−8852, enter access code 1916636, enter security code 8302018 and wait for the Court to join the conference. ***Prior to the pretrial conference counsel must comply with the MANDATORY DISCLOSURE RULES of Fed.R.Civ.P. 26(a)(1) and the MANDATORY, pre−preliminary pretrial conference between counsel, required by Fed.R.Civ.P. 26(f). NOTE: the format for the Rule 26(f) conference between counsel and the report to the Court has been altered. This new form is available on line and

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07/13/2018 07/27/2018 08/07/2018 08/23/2018 08/28/2018 08/29/2018
09/10/2018
09/12/2018 09/14/2018 10/12/2018 07/03/2019

MUST be utilized in this case. THE REPORT MUST BE FILED 7 DAYS PRIOR TO THE PRELIMINARY PRETRIAL CONFERENCE. In all cases with class action allegations, the parties shall include in their Fed. R. Civ. P. 26(f) report proposed deadlines for completing discovery relevant to those allegations and for filing a motion to certify a class, and a proposed date for class action determination. Pretrial procedures and forms can be found at our website at www.ohsd.uscourts.gov. (ep) (Entered: 07/12/2018)
18 MOTION To enforce settlement agreement by Plaintiff Human Rights Defense Center. (Marshall, Daniel) (Entered: 07/13/2018)
19 RESPONSE to Motion re 18 MOTION To enforce settlement agreement filed by Defendants Gene Fischer, Sheriff, Greene County Ohio, John and Jane Does 1−10, Staff,, Kirk Keller, Jail Administrator. (Ellis, Elizabeth) (Entered: 07/27/2018)
20 REPLY to Response to Motion re 18 MOTION To enforce settlement agreement filed by Plaintiff Human Rights Defense Center. (Neelakanta, Sabarish) (Entered: 08/07/2018)
21 RULE 26(f) REPORT by Plaintiff Human Rights Defense Center. (Mutamba, Masimba) (Entered: 08/23/2018)
22 ORDER OF CONSENT to Jurisdiction by US Magistrate Judge. Case reassigned to Magistrate Judge Michael J. Newman.. Signed by Judge Thomas M. Rose on 8/28/18. (kma)Modified on 8/30/18 to correct docket number in text (kma). (Entered: 08/28/2018)
23 NOTICE: CHANGE IN CALL IN INFORMATION ONLY: Judge Newman will hold the previously scheduled Telephone Conference on 8/30/2018 at 9:30 AM. This call will replace the call with Judge Rose. Counsel shall call: 1−888−278−0296, enter access code 2725365, security code 123456, and wait for the Court to join the conference. (dm) (Entered: 08/29/2018)
24 RECUSAL ORDER − On August 30, 2018, the Court held a preliminary pretrial conference with counsel for both sides in this consent case to discuss, inter alia, scheduling issues. The Court, at that time, also raised with counsel a potential conflict. Counsel for both sides advised the Court there is no conflict −− and assuming, arguendo, there is one −− they both waive the conflict. Having considered the matter in some detail following the conference, and acting in an abundance of caution, the undersigned RECUSES from this case and sends it to the Clerk of Courts for reassignment. IT IS SO ORDERED. ***Magistrate Judge Michael J. Newman recused. Case reassigned to Magistrate Judge Sharon L. Ovington for all further proceedings***. Signed by Magistrate Judge Michael J. Newman on 9/6/2018. (srb) (Entered: 09/10/2018)
NOTICE OF PROCEEDING: Teleconference set for 9/14/2018 at 2:30 PM before Magistrate Judge Sharon L. Ovington. PLEASE CALL 1−888−684−8852. The ACCESS CODE is 6641708. The SECURITY CODE is 091418. If you have any questions, please call Rose Plummer at 937−512−1570. (rp) (Entered: 09/12/2018)
Minute Entry for proceedings held before Magistrate Judge Sharon L. Ovington: Teleconference held on 9/14/2018. Case reported settled. Paperwork to be submitted within 30 days. (rp) (Entered: 09/14/2018)
25 AGREED ORDER OF DISMISSAL with Settlement Agreements attached. Signed by Magistrate Judge Sharon L. Ovington on 10/12/18. (Attachments: # 1 10/11/18 Agreement, # 2 11/29/17 Agreement) (rp) (Entered: 10/12/2018)
26 NOTICE: Letter to the Court from non−party George Wyatt Jr. (jg) (Entered: 07/03/2019)

 
 Case: 3:17-cv-00381-TMR-SLO Doc #: 1 Filed: 10/31/17 Page: 1 of 11 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,
c/o Newman & Meeks LPA 215 E. 9th St. #650
Cincinnati, OH 45202

Case No.:

Plaintiff,
v.
GREENE COUNTY, OHIO, c/o Brandon Huddleson, County Administrator 35 Greene St. Xenia, OH 45385

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT 42 U.S.C. §1983 AND DAMAGES

and

GENE FISCHER, Sheriff, Greene County Sheriff’s Office 120 E. Main St. Xenia, OH 45385 individually and in his official capacity;

JURY TRIAL DEMANDED

and

KIRK KELLER, Jail Administrator, Greene County Sheriff’s Office 120 E. Main St. Xenia, OH 45385 Individually and in his official capacity;

and

JOHN AND JANE DOES 1-10, Staff, Greene County Sheriff’s Office 120 E. Main St. Xenia, OH 45385 individually and in their official capacities,

Defendants.

I.

INTRODUCTION

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1. Plaintiff, Human Rights Defense Center (“HRDC” or “Plaintiff”) brings this action to enjoin Defendants’ censorship of mail sent from Plaintiff and other publishers to prisoners at the Greene County Jail, in violation of the First and Fourteenth Amendments of the United States Constitution. Defendants have adopted and implemented mail policies prohibiting delivery of written speech from Plaintiff and other speakers, and failed to provide due process notice of and an opportunity to challenge the censorship as required under the Constitution.
II. JURISDICTION AND VENUE 2. This action is brought pursuant to 42 U.S.C. § 1331 (federal question), as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 (civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983. 3. Venue is proper under 28 U.S.C. § 1391(b). At least one Defendant resides within this judicial district, and the events giving rise to the claims asserted herein all occurred within this judicial district. 4. HRDC’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to HRDC by the First and Fourteenth Amendments to the U.S. Constitution and the laws of the United States. 5. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as nominal and compensatory damages, against all Defendants. 6. HRDC’s claim for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983. 7. HRDC is informed, believes, and based thereon alleges that the individual Defendants acted as described herein with the intent to injure, vex, annoy and harass HRDC, in conscious
2

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disregard of HRDC’s rights with the intention of causing HRDC injury and depriving it of its constitutional rights.
8. As a result of the foregoing, HRDC seeks injunctive and declaratory relief, as well as compensatory and punitive damages against the individual Defendants.
III. PARTIES 9. The Human Rights Defense Center is a not–for–profit charitable organization recognized under §501(c)(3) of the Internal Revenue Code, incorporated in the state of Washington and with principal offices in Lake Worth, Florida. The purpose of HRDC, as stated in its Articles of Incorporation, is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society. HRDC accomplishes its mission through litigation, advocacy, and publication and/or distribution of books, magazines and other information concerning prisons and prisoner rights. 10. Defendant Greene County, Ohio (the “County”) is a unit of government organized and existing under the laws of the State of Ohio. The County operates the Greene County Jail (“GCJ”), and is and was responsible for adopting and implementing mail policies governing incoming mail for prisoners at that facility. 11. Defendant Gene Fischer is the Sheriff of Greene County, Ohio. Defendant Fischer is employed by and is an agent of Defendant Greene County. Defendant Fischer has ultimate responsibility for the promulgation and enforcement of all GCJ staff policies and procedures and is responsible for the overall management of the GCJ, to include processing of mail. He is sued in his individual and official capacities. 12. Defendant Kirk Keller is a Major in the Greene County Sheriff’s Office, and is the Jail Administrator for that office. Defendant Keller is employed by and is an agent of defendants Greene County and Gene Fischer. He is responsible for overseeing the management and operations of the GCJ, and for the hiring, screening, training, retention, supervision, discipline,
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counseling, and control of the personnel of the GCJ who interpret and apply the mail policy for prisoners. He is sued in his individual and official capacities.
13. The true names and identities of Defendants DOES 1 through 10 are presently unknown to HRDC. Each of Defendants DOES 1 through 10 are or were employed by and are or were agents of Defendants when some or all of the challenged inmate mail policies and practices were adopted and/or implemented. Each of Defendants DOES 1 through 10 were personally involved in the adoption and/or implementation of the mail policies at the GCJ, and/or were responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or control of the GCJ staff who interpret and implement these mail policies. HRDC will seek to amend this Complaint as soon as the true names and identities of Defendants DOES 1 through 10 have been ascertained.
14. At all times material to this action, the actions of all Defendants as alleged herein were taken under the authority and color of state law.
15. At all times material to this action, all Defendants were acting within the course and scope of their employment as agents and/or employees of Defendant Greene County, Ohio.
IV. FACTUAL ALLEGATIONS A. HRDC’s mission and outreach to the GCJ 16. For more than 26 years, the focus of HRDC’s mission has been public education, advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal redress for infringements of their constitutionally guaranteed and other basic human rights. HRDC’s mission, if realized, has a salutary effect on public safety. 17. To accomplish its mission, HRDC publishes and distributes books, magazines, and other information containing news and analysis about prisons, jails and other detention facilities, prisoners’ rights, court rulings, management of prison facilities, prison conditions and other matters pertaining to the rights and/or interests of incarcerated individuals.
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18. HRDC, through its publication project, PLN, publishes and distributes a monthly magazine titled Prison Legal News: Dedicated to Protecting Human Rights, which contains news and analysis about prisons, jails and other detention facilities, prisoners’ rights, court opinions, current events, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals. The monthly magazine is published on newsprint and is 72-pages long.
19. HRDC, through its publication project, PLN, also publishes and/or distributes approximately fifty different softcover books about the criminal justice system, legal reference books, and self-help books of interest to prisoners. These books are designed to foster a better understanding of criminal justice policies and to allow prisoners to educate themselves about related issues, such as legal research, how to write a business letter, health care issues, and similar topics. Pertinent to this case, HRDC publishes and distributes The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas Citebook”), which describes the procedural and substantive complexities of federal habeas corpus litigation with the goal of identifying and litigating claims involving ineffective assistance of counsel.
20. In addition to monthly journal issues and books, HRDC also sends prisoners: (a) informational brochure packets – the packet contains a brochure and subscription order form, a book list, and a published books brochure (each of which is a single page); (b) copies of judicial opinions of import to prisoners; and (c) legal letters.
21. HRDC has thousands of subscribers to its monthly magazine in the United States and abroad, including prisoners, attorneys, journalists, public libraries, judges, and members of the general public. HRDC distributes Prison Legal News to prisoners in approximately 2,600 correctional facilities across the United States, including death row units and institutions within the Federal Bureau of Prisons, such as the federal Administrative Maximum Facility (“ADX” or “Supermax”) at Florence, Colorado - the most secure prison in the United States. Prison Legal
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News is distributed to prisons and jails within the correctional systems of all 50 states, including to hundreds of prisoners housed in facilities in the State of Ohio.
22. Accordingly, HRDC engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, prisoner health and safety, and prisoners’ rights. HRDC’s publications, as described above, contain political speech and social commentary, which are core First Amendment rights and are entitled to the highest protection afforded by the United States Constitution.
23. The GCJ is a 130 bed full-service jail facility, and confines a number of prisoners who have been prohibited receipt of HRDC’s communications and publications. The County also operates the Greene County Adult Detention Center, a 236 bed jail facility. A substantial number of the prisoners held at these facilities have yet to stand trial or be sentenced for a crime.
B. Defendants’ Unconstitutional Mail Policies and Practices 24. Defendants have censored the following materials sent by Plaintiff to prisoners held in the GCJ: (1) issues of the monthly magazine, Prison Legal News; (2) sample issues of Prison Legal News; (3) the Habeas Citebook; (4) informational brochure packets; and (5) court opinions. Defendants refused to deliver said items to the intended prisoner-recipients, and, in many instances, returned items to Plaintiff’s office via the “Return To Sender” service of the United States Postal Service. Defendants continue to censor some of the items listed above. 25. Altogether, since July 2017, Plaintiff can identify at least forty-two (44) items of mail sent by HRDC to prisoners held in the GCJ which were censored by Defendants. This includes eleven (11) sample issues of Prison Legal News, twelve (12) copies of the Habeas Citebook, eleven (11) informational packets, and ten (10) court opinions. Most of these items were returned to HRDC, with the notation
“OPENED FOR OFFICIAL INSPECTION RETURN TO SENDER
NO CONTRABAND ALLOWED” 6

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26. On information and belief, a substantial portion of the other magazines, books, and other communications mailed by HRDC to individual prisoners held in the GCJ were also censored by the Defendants.
27. Such restrictions on written speech sent to prisoners at the GCJ are not rationally related to any legitimate penological interest and violate HRDC’s First Amendment right to communicate its speech with prisoners.
28. In all of the above instances of censorship of HRDC’s communications, Defendants failed to provide any notice to HRDC of their rejection of its mail, violating the Fourteenth Amendment rights of the Plaintiff.
29. Defendants further failed to provide an opportunity for HRDC to challenge the censorship of its mail, in violation of HRDC’s Fourteenth Amendment rights.
30. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC.
31. Plaintiff will continue to mail copies of its books and other publications to subscribers, customers, and other individuals imprisoned at the GCJ, but seeks the protection of this Court to ensure that the materials are delivered and, if not, that due process is afforded to the Plaintiff so it may challenge the basis for any censorship.
C. Defendants’ Unconstitutional Mail Policies and Practices are Causing HRDC Ongoing Harm
32. Due to Defendants’ actions described above, HRDC has suffered damages, and will continue to suffer damages, including, but not limited to: the violation of the HRDC’s constitutional rights; the impediment of HRDC’s ability to disseminate its political message; frustration of HRDC’s non–profit organizational mission; diversion of resources; loss of potential subscribers and customers; an inability to recruit new subscribers and supporters; the loss of reputation; and the costs of printing, handling, mailing, and staff time.
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33. Defendants’ actions and inactions were and are motivated by ill motive and intent, and were and are all committed under color of law and with reckless indifference to HRDC’s rights.
34. Defendants and their agents are responsible for or personally participated in creating and implementing these unconstitutional policies, practices, and customs, or for ratifying or adopting them. Further, Defendants are responsible for training and supervising the staff persons whose conduct has injured and continues to injure HRDC.
35. Defendants’ unconstitutional policy, practices, and customs are ongoing, continue to violate HRDC’s rights, and are the moving force behind the constitutional violations. Defendants’ unconstitutional policy, practices, and customs will continue unless enjoined. As such, HRDC has no adequate remedy at law.
36. HRDC is entitled to injunctive relief prohibiting Defendants from refusing to deliver its monthly magazine Prison Legal News, sample issues of Prison Legal News, books, informational brochure packets, legal letters, and court opinions without any legal justification, and prohibiting Defendants from censoring mail without due process of law.
IV. CLAIMS Count I – 42 U.S.C. § 1983 Violation of the First Amendment (Censorship) 37. HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 36 of the Complaint as if fully set forth herein. 38. The acts described above constitute violations of HRDC’s rights, the rights of other publishers who have attempted to or intend to communicate with prisoners at the GCJ, and the rights of the prisoners confined at the GCJ, under the First Amendment to the United States Constitution. 39. HRDC has a constitutionally protected liberty interest in communicating with incarcerated individuals, a right clearly established under existing case law.
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40. The conduct of Defendants was objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
41. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, which were and are the moving force of the violations.
42. Defendants’ acts described above have caused damages to HRDC, and if not enjoined, will continue to cause damage to HRDC.
43. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the individual Defendants in their individual capacities.
Count II – 42 U.S.C. § 1983 Violation of Fourteenth Amendment (Due Process) 44. HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 43 of the Complaint as if fully set forth herein. 45. The acts described above constitute violations of HRDC’s rights and the rights of other publishers who have attempted to or who intend to communicate with prisoners at the GCJ under the Fourteenth Amendment to the United States Constitution. 46. Because HRDC and others outside the GCJ have a liberty interest in communicating with prisoners, HRDC and other senders have a right under the Due Process Clause of the Fourteenth Amendment to receive notice of and an opportunity to appeal Defendants’ decisions to censor their written speech. 47. Defendants’ policy and practice fail to provide HRDC and other senders with adequate notice and an opportunity to be heard.
9

Case: 3:17-cv-00381-TMR-SLO Doc #: 1 Filed: 10/31/17 Page: 10 of 11 PAGEID #: 10
48. The conduct of Defendants was objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
49. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, which are and were the moving force of the violations.
50. Defendants’ acts described above have caused damages to HRDC, and if not enjoined, will continue to cause damage to HRDC.
51. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the individual Defendants in their individual capacities.
V. REQUEST FOR RELIEF WHEREFORE, the Plaintiff respectfully requests relief as follows: 52. A declaration that Defendants’ policies and practices violate the Constitution. 53. Nominal damages for each violation of HRDC’s rights by the Defendants. 54. A preliminary and permanent injunction preventing Defendants from continuing to violate the Constitution, and providing other equitable relief. 55. Compensatory damages in an amount to be proved at trial. 56. Punitive damages against the individual Defendants in an amount to be proved at trial. 57. Costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988, and under other applicable law. 58. Any other such relief that this Court deems just and equitable.
VI. JURY DEMAND Plaintiff, Human Rights Defense Center, by and through its attorneys, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.
10

Case: 3:17-cv-00381-TMR-SLO Doc #: 1 Filed: 10/31/17 Page: 11 of 11 PAGEID #: 11
Respectfully Submitted, /s/ Robert Newman Robert Newman, Ohio Bar No.: 23484 Newman & Meeks LPA 215 E. 9th St. #650 Cincinnati, OH 45202 Telephone: (513) 952-9200 robertnewman@newman-meeks.com Bruce E.H. Johnson, Wa. Bar No. 7667* Davis Wright Tremaine LLP 1201 Third Avenue, Suite 220 Seattle, WA 98101 Telephone: (206) 757-8069 Facsimile: (206) 757-7069 brucejohnson@dwt.com Sabarish Neelakanta, Fla. Bar No.: 26623* sneelakanta@hrdc-law.org Masimba Mutamba, Fla. Bar No.: 102772* mmutamba@hrdc-law.org Daniel Marshall, Fla. Bar No.: 617210* dmarshall@hrdc-law.org Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 Telephone: (561) 360-2523 Facsimile: (866) 735-7136 *Pro Hac Vice applications to be filed
11

 
 Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 1 of 8 PAGEID #: 695

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff,

Case No.: 3: 17-cv-00381

v.

GREENE COUNTY, OHIO, eta/. ,

Defendants.

AGREED ORDER OF DISMISSAL The parties hereby agree that this case has been settled and that all the issues and controversies have been resolved to their mutual satisfaction. The parties request the Court to retain jurisdiction to enforce the tetms of the settlement agreements under the authority of Kokkonen v. Guardian Life Insurance Co. ofAmerica, 511 U.S. 375 (1994). IT IS HEREBY ORDERED: 1. The Court shall retain jurisdiction for the purpose of enforcing the terms of the settlement agreements entered on November 29, 2017 and October 11 , 2018 copies of which are attached and incorporated by reference as if fully set forth herein, as authorized by law. 2. Except as provided in paragraph 1 above, this case is dismissed, with prejudice.

fZ fh So ordered this

day of October, 2018.

n L. Ovington
United States Magistrate Judge

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 2 of 8 PAGEID #: 696

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff,

Case No.: 3: 17-cv-00381-TMR

v.

GREENE COUNTY, OHIO, eta/.,

Defendants.

SETTLEMENT AGREEMENT

THIS SEITLEMENT AGREEMENT (hereinafter referred to as the ''Agreement") as to injunctive claims is made and entered into as of the date this Agreement is signed, by and among the Defendants Sheriff Gene Fischer and Jail Administrator Kirk Keller in their individual and official capacities, and the County of Greene on behalf of itself and all of its officers, directors. employees, former employees, agents, predecessors. divisions, successors, administrators, and assigns (col lectively " Defendants"), and Human Rights Defense Center ("HRDC" or "Plaintiff')), on behalf of itself and all of its officers, directors, employees, former employees, agents, predecessors, divisions, successors, administrators, and ass1gns. Defendants and HRDC are collectively referred to as "the Parties".

I. Recitals

A. At all times relevant hereto, Defendant Gene Fischer was the Sheriff of Greene County,

Ohio, and Defendant Kirk Keller was the Jail Administrator for the Greene County Jail ("'Jai r ').

B. Defendant, Greene County, is an organized municipal corporation existing under the

laws of the State of Ohio.

C. At all times relevant hereto. the Human Rights Defense Center is a not- for- profit

charitable organization recognized under §50 I(c)(3) of the Internal Revenue Code, incorporated

{01553160.DOCX / }

I

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 3 of 8 PAGEID #: 697

in the state of Washington and with principal offices in Lake Worth, Florida. Through its publi shing project, HRDC publishes Prison Legal News, a m onthly journal of corrections news

and anal ysis. HRDC also publi shes and/or distributes approximately fifty different softcover books about the criminal justice system, legal reference books, and self-help books of interest to

pnsoners. Further, HRDC sends other correspondence to prisoners in detention facilities,

including the Jail.

D. This Agreement addresses and resolves certain disputes arising from and relating to

allegations that Defendants violated HRDC ' s First and Fourteenth Amendment rights related to

the handling or delivery of books, magazines and enveloped mail to prisoners housed at the Greene

County Jail, and the alleged lack of due process associated with Greene' s actions.

E. The Parties agree that Defendants denies any liability in thi s case. However, in order to avoid the expense, delay, uncertainty, and burden of litigation, the Parties have agreed to a

settlement of the injunctive terms alleged in the Complaint filed in this action. This written

Agreement memorializes the terms of the settlement reached by Defendants and HRDC.

F. No Admission of Liability; No Admissibility. The Parties acknowledge that neither

this Agreement nor any consideration exchanged hereunder shall be regarded as an admission of

any fact, allegation, liability, or responsibility of any kind by either of the Parties for any purpose.

This Agreement shall not be admissible in any proceeding, except as is necessary in a proceeding

to enforce the terms of this Agreement or to establish or prove the defenses of payment, re lease,

accord and satisfaction, waiver, or estoppel, or as otherwise required by court order.

II. Injunctive Terms

G. Defendants agree that they shall not censor or otherwi se fa il to deliver the items

mai led to prisoners at the Greene County Jail ("Jail'') by HRDC since July 2017, name ly: a) copies

of the softcover book, the Habeas Citebook: Ineffective Assistance of Counsel; b) informational

{01553160.DOCX / )

2

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 4 of 8 PAGEID #: 698

brochure packets detailing the publications offered by HRDC to prisoners -the packet contains a

brochure and subscription order form , a book list, and a published books brochure (each of which is a

single page); c) copies of the court opinion, Clement v. California Department ofCorrections, 364

F.3d 1148 (9th Cir, 2014); and d) the June- October 2017 issues of the magazine, Prison Legal

News. Defendants further agree that these materials did not and do not threaten any legitimate

penological interests of the Jail and will not be censored in the future.

H. For all mailings sent after the date of this Agreement, Defendants shall deliver, if

consistent with Defendants' legitimate penological interests and express policy terms based thereon,

publications (i.e., books, magazines, and newspapers) and other materials sent to prisoners at the Jail

from publishers, book clubs, bookstores, or established vendors or distributors. It is agreed that

HRDC is a publisher and book distributor as contemplated by this Agreement. Defendants shall not

condition delivery of any publication on the recipient relinquishing ownership of said publication.

Further, Defendants shall not censor publications solely because it is in the form of a book, a

magazine or newspaper article unless the content of such material threatens the Jail ' s legitimate

penological interests. Additionally, Defendants shall not refuse to deliver materials sent by HRDC

because the item(s) were sent using stamps rather than metered postage, and/or had a mailing or

address label affixed to it. Finally, Defendants shall not refuse delivery of any issue(s) of PLN sent

by HRDC solely because it contains staples. Defendants may remove the staples before delivering

such issues to the intended prisoner-recipient.
r. Defendants shall be allowed to institute reasonable limitations on the volume of

publications and/or or other correspondence a prisoner may have in his or her prison cell to further

the legitimate penological interests of the Jail.

J. Whenever authorities at the Jail refuse to deliver any publication or other

correspondence sent to a pri soner at the Jail for any reason, Jail personnel shall place into the mail

{01553160.DOCX / )

3

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 5 of 8 PAGEID #: 699

written notice to the sender within three (3) business days of making an initial mail rejection decision. The notice shall include the name and address of the publisher as well as the name(s) of the intended recipient(s), a description of the refused item of mail , a citation to the objectionable portion of the publication or correspondence, and a citation to the .Jail rule concerning the way in which the censored speech would threaten one of the defendants' specific legitimate penological interests. The notice shall also inform the sender of their right to appeal the decision, and include the name and address of the person to whom such appeals should be addressed and the date by which appeals must be submitted. The notice shall also be given to the intended prisoner-recipient of the mail. The refused item(s) will be retained by the Jail in accordance with the appeal process established by the Jail. Additionally, the review process for the appeal shall include the sender' s and prisonerrecipient's right to have its appeal, if any, considered and resolved by a decision maker at the Jail who did not participate in the original decision to refuse to deliver the publication or enveloped mail in question. Any decision on the appeal shall be mailed to the sender and intended prisoner-recipient within three (3) business days.
K. Defendants Gene Fischer and Kirk Keller, and their agents, assigns, employees, deputies, and successors will establish, implement, and enforce policies and procedures that will fully effectuate the injunctive terms of this Agreement.
L. It is further agreed that within thirty (30) days of the date of filing of this Agreement, Defendants will disseminate a copy to all employees of the Jail , as well as to all persons in custody at the Jail, and that the injunctive terms of this Agreement will be fully implemented by all Jail staff persons. Further, a copy of this Agreement shall be posted on the Greene County Sheriffs website, shall be available to prisoners in the Jail ' s library, and copies of this Agreement shall be posted in the common areas of the Jail for a period of ninety (90) days after the date of entry of the Agreement

(01553160.DOCX /}

4

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 6 of 8 PAGEID #: 700

by the Court. Defendants' counsel will furnish the Court and Plaintiff's counsel with written

confirmation that Defendants have complied with the provisions of this paragraph.

M. The bond requirement of Fed. R. Civ. P. 65(c), if any, is waived.

III. Reservation of Jurisdiction

N. The federal court shall retain jurisdiction over this Agreement. The parties agree to

submit this Agreement to the Court for entry of an order retaining jurisdiction over the claims and

for enforcement of the provisions herein consistent with Kokkonen v. Guardian Life Insurance of America,511 U.S.375, 114S.Ct.1673( 1994).

IV. Miscellaneous Provisions

0. Defendants and HRDC acknowledge and agree that they have been represented by

legal counsel with respect to the matters that are the subject of this Agreement and that they have entered into this Agreement freely and voluntarily.

P. The Parties agree that facsimile or PDF signatures are deemed to be originals and

that this Agreement may be executed in counterparts. Upon signature ofthe Parties, this Agreement

shall be deemed executed, final , and binding.

Q. This Agreement sets forth the entire understanding between the Parties with respect

to the subject matter contained herein, and there are no representations, warranties, agreements,

arrangements, or undertakings, oral or written, between or among the Parties hereto relating to the

subject matter of this Agreement which are not fully expressed herein. This Agreement supersedes

all prior negotiations, representations, statements, or promises between the Parties, whether written

or oral, as to these matters.

R. This Agreement shall be binding upon and inure to the benefit of Defendants and

HRDC, and their respective successors and assigns.

S. The obligations imposed by this Agreement are severable. If for any reason a part of

{01553160.DOCX /}

5

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 7 of 8 PAGEID #: 701

this Agreement is invalid or unenforceable, that cletcnninntion shllll not nffcctthc remainder of this

Agreement .

T. The Parties ngrce that thi s cnsc concerns the First :md Fourteenth Amendment rights

of a publisher, nnd is therefore not o case conccming prison conditions ns defined in the Prison

Litigntion Refo rm Act of 1996. The Pnrties also ngrce that the injunctive relief contained herein is

nnrrowly drown, extends no fmthcr than necessary to correct the hnnn to HRDC, nnd is the lcust

imrusive means necessnry to correct lhnt lumn.

U. The Parties agree that the public interest is served by the injunctive relief herein,

-.vhich protects the constitutionnl rights of publishers and other persons who correspond with

prisoners by m11il , nnd the right of prisoners to send nnd receive mnil.

V. This Agreement nnd nny of its provisions mny be nmended, modified, or tenninntcd

only by written ngrccmcnt signed by HRDC nnd Defendants. Such written ngrcement(s) shall be

effective only upon approval by the Court.
Dntcd this~ (t~duy ofNovcmhcr, 2017.

Stipulntcd mul Agreed to :

~
HUMAN I~ lG 'l'S UEI'ENSE CENTIW

l3y:

- .-

Tille/ \ ' f '{ ( ~ -~ J,7~ I{ f <.. \; ~ ft.

___ Ontc: \l}~

COUNTY OJi GHEENF.

By;
Title: Dat e:

GREENE COUNTY SHERIFF'SOFFICE GENE FISCHER, SHERifF 120 E Main Sl.
__ ~~i~ OH. 45385

(OISS3160.00 0 II

6

Case: 3:17-cv-00381-SLO Doc #: 25 Filed: 10/12/18 Page: 8 of 8 PAGEID #: 702

(OI~~H(J().()QC X /)

7

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 1 of 11 PAGEID #: 703

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OIDO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff,
v.
GREENE COUNTY, OHIO, et al.,

Case No.: 3:17-cv-00381-TMR SETTLEMENT AGREEMENT

Defendants.

SEULEMENT AGBEEM&NT AND FULL AND FINAL RELEASE

THIS SETILEMENT AGREEMENT (hereinafter referred to as the "Agreement") as to damages, attorneys' fees and costs is made and entered into as ofthe date this Agreement is signed,

by and among the Defendants Sheriff Gene Fischer and Jail Administrator Kirk Keller in their individual and official capacities, and the County ofGreene on behalfof itselfand all of its officers, directors, employees, former employees, agents, predecessors, divisions, successors, administrators, and assigns (collectively ''Defendants"), and Human Rights Defense Center ("HRDC" or "Plaintiff'')), on behalf of itself and all of its officers, directors, employees, former employees, agents, predecessors, divisions, successors, administrators, and assigns. Defendants and HRDC are collectively refetTed to as "the Parties".
I. Recitals A. At all times relevant hereto, Defendant Gene Fischer is and was the Sheriffof Greene County, Ohio, and Defendant Kirk Keller is and was the Jail Administrator for the Greene County Jail ("Jail").

B. Defendant, Greene County, is an organized municipal corporation existing under the

laws of the State of Ohio.

C. At all times relevant hereto, the Human Rights Defense Center is and was a not-for-

{01SS3160.ooc:x /l

I

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 2 of 11 PAGEID #: 704

profit charitable organization recognized under §50l(c)(3) of the Internal Revenue Code,

incorporated in the state of Washington and with principal offices in Lake Worth, Florida. Through its publishing project, HRDC publishes Prison Legal News, a monthly journal of corrections news and analysis. HRDC also publishes and/or distributes approximately fifty different softcover books about the criminal justice system, legal reference books, and self-help

books ofinterest to prisoners. Further, HRDC sends other correspondence to prisoners in detention facilities, including the Jail.

D. This Agreement addresses and resolves certain disputes arising from. and relating to

allegations that Defendants violated HRDC's First and Fourteenth Amendment rights related to the handling or delivery ofbooks, magazines and enveloped mail to prisoners housed at the Greene

County Jail, and the alleged lack ofdue process associated with Greene's actions.

E. The Parties agree that Defendants denies any liability in this case. However, in order

to avoid the expense, delay, uncertainty, and burden of litigation, the Parties have agreed to a settlement ofthe constitutional violations alleged in the Complaint filed in this action. This written Agreement memorializes the terms of the settlement reached by Defendants and HRDC.

F. No Admission of Liability; No Admissibility. The Parties acknowledge that neither

this Agreement nor any consideration exchanged hereunder shall be regarded as an admission of

any fact, allegation, liability, or responsibility of any kind by either ofthe Parties for any purpose. This Agreement shall not be admissible in any proceeding, except as is necessary in a proceeding to enforce the terms of this Agreement or to establish or prove the defenses of payment, release, accord and satisfaction, waiver, or estoppel, or as otherwise required by court order.

II. Monetary terms

G. Greene County agrees to pay HRDC a total of$45,000.00 in full and final settlement

of all claims for damages, attorneys' fees and costs that were brought in this matter or could have

{01553160.000( , ,

2

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 3 of 11 PAGEID #: 705

been brought in this matter. The total sum combines damages and attorneys' fees and costs. HRDC may determine the allocation ofthis money between damages and attorneys' fees and costs at its own discretion. Gt·eene County will send direct payment to HRDC within 20 days of the entry of the Agreed Order of Dismissal by the Court c/o:

Sabat·ish Neelakanta, Esq. General Counsel Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460

H. In consideration of the above terms agreed to by Greene County, HRDC agrees to dismiss the instant case. Said dismissal will be with prejudice in the United States District Court, though the Court shall retain jurisdiction for the purpose ofentertaining enforcement actions pet· the terms described in paragraphs I and J.

III.Reservation ofJurisdiction

I. The federal court shall retain jurisdiction over this Agreement, and the Settlement Agreement entered between the parties on November 29. 2017. The parties agree to submit both Settlement Agreements to the Court for entry of an order retaining jurisdiction over the claims and for enforcement of the provisions herein consistent with Kokkonen v. Guardian Life Insurance of America, 511 U.S. 375, 114 S.Ct. 1673 (1994).

IV. Miscellaneous Provisions J. Defendants and HRDC acknowledge and agree that they have been represented by legal counsel with respect to the matters that are the subject of this Agreement and that they have entered into this Agreement freely and voluntarily.

K. The Parties agree that facsimile or PDF signatures are deemed to be originals and

that this Agreement may be executed in counterparts. Upon signature of the Parties, this Agreement

shall be deemed executed, final, and binding.

n {01SS3160.00CX

3

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 4 of 11 PAGEID #: 706

L. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter contained herein, and there are no representations, warranties, agreements, arrangements, or undertakings, oral or written, between or among the Parties hereto relating to the subject matter ofthis Agreement which are not fully expressed herein. This Agreement supersedes all prior negotiations, representations, statements, or promises between the Parties, whether written or oral, as to these matters, except that the Settlement Agreement entered on November 29, 2017 as docket number 12 shall remain in force.

M. This Agreement shall be binding upon and inure to the benefit of Defendants and HRDC, and their respective successors and assigns.

N. The obligations imposed by this Agreement are severable. Jffor any reason a part of this Agreement is invalid or unenforceable, that detennination shall not affect the remainder of this Agreement.

0. The Parties agree that this case concerns the First and Fourteenth Amendment rights of a publisher, and is therefore not a case concerning prison conditions as defined in the Prison Litigation Reform Act of 1996.

P. This Agreement and any of its pl'Ovisions may be amended, modified, or tenninated

only by written agreement signed by HRDC and Defendants. Such written agreement(s) shall be

effective only upon approval by the Court.

f/ rJ..

Dated this

day of October, 2018.

Stipulated and Agreed to:

I01SS3160.DOCX /)

4

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 5 of 11 PAGEID #: 707

Date: _{___:__~(!---.:....!/..j./_g'_ _
COUNTY OF GREENE
By: ~~/Lu4
Title: &ntft /ldm,'di$/u./.n
Date: ---.~/LiiQL-.L/.L/~-l u f r L - - - - - -

.QNl~~Approved as to form only

By:

({Jt~(~J..

[DEFENDANTS' ATTORNEY(S)] Approved as to form only
By: /&/ 52mMA,9r.%'UJ
Date: _10.8.2018_ _ _ _ _ __

n 10tSS3160.00CX

5

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 6 of 11 PAGEID #: 708

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OIDO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff,

Case No.: 3:17-cv-00381-TMR

v.
GREENE COUNTY, OHIO, et al.,

SETTLEMENT AGREEMENT

Defendants.

SETTLEMENT AGREEMENT ANP FQLL AND FINAL RELEASE

THIS SE1TLEMENT AGREEMENT (hereinafter referred to as the "Agreement") as to

damages, attorneys' fees and costs is made and entered into as ofthe date this Agreement is signed,

by and among the Defendants Sheriff Gene Fischer and Jail Administrator Kirk Keller in their

individual and official capacities, and the County ofGreene on behalfof itselfand all of its officers,

directors, employees, former employees, agents, predecessors, divisions, successors, administrators,

and assigns (collectively ''Defendants"), and Human Rights Defense Center ("HRDC" or

"Plaintiff")), on behalf of itself and all of its officers, directors, employees, former employees,

agents, predecessors, divisions, successors, administrators, and assigns. Defendants and HRDC are

collectively refeiTed to as "the Parties".

I. Recitals

A. At all times relevant hereto, Defendant Gene Fischer is and was the Sheriff of Greene

County, Ohio, and Defendant Kirk Keller is and was the Jail Administrator for the Greene County

Jail ("Jail").

B. Defendant, Greene County, is an organized municipal corporation existing under the

laws of the State of Ohio.

C. At all times relevant hereto, the Human Rights Defense Center is and was a not-for-

{Dlss3t 60.oocx /l

l

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 7 of 11 PAGEID #: 709

profit charitable organization recognized under §501 (c)(3) of the Internal Revenue Code,

incorporated in the state of Washington and with principal offices in Lake Worth, Florida.

Through its publishing project, HRDC publishes p,.ison Legal News, a monthly journal of

corrections news and analysis. HRDC also publishes and/or distributes approximately fifty

different softcover books about the criminal justice system, legal reference books, and self-help

books ofinterest to prisoners. Further, HRDC sends other correspondence to prisoners in detention

facilities, including the Jail.

D. This Agreement addresses and resolves certain disputes arising from. and relating to

allegations that Defendants violated HRDC's First and Fourteenth Amendment rights related to

the handling or delivery ofbooks, magazines and enveloped mail to prisoners housed at the Greene

County Jail, and the alleged lack of due process associated with Greene's actions.

E. The Parties agree that Defendants denies any liability in this case. However, in order

to avoid the expense, delay, uncertainty, and burden of litigation, the Parties have agreed to a

settlement ofthe constitutional violations alleged in the Complaint filed in this action. This written

Agreement memorializes the terms of the settlement reached by Defendants and HRDC.

F. No Admission of Liability; No Admissibility. The Parties acknowledge that neither

this Agreement nor any consideration exchanged hereunder shall be regarded as an admission of

any fact, allegation, liability, or responsibility ofany kind by either of the Parties for any purpose.

This Agreement shall not be admissible in any proceeding, except as is necessary in a proceeding

to enforce the terms of this Agreement or to establish or prove the defenses of payment, release,

accord and satisfaction, waiver, or estoppel, or as otherwise required by court order.

II. Monetary terms

G. Greene County agrees to pay HRDC a total of$45,000.00 in full and final settlement

of all claims for damages, attorneys' fees and costs that were brought in this matter or could have

(01SS3160.DOCXJ)

2

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 8 of 11 PAGEID #: 710

been brought in this matter. The total sum combines damages and attorneys' fees and costs. HRDC

may determine the allocation ofthis money between damages and attorneys' fees and costs at its own

discretion. Gt·eene County will send direct payment to HRDC within 20 days of the entry of the
Agreed Order of Dismissal by the Court c/o:

Sabarish Neelakanta, Esq. General Counsel Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460

H. In consideration of the above terms agreed to by Greene County, HRDC agrees to

dismiss the instant case. Said dismissal will be with prejudice in the United States District Court, though the Court shall retain jurisdiction for the purpose ofentertaining enforcement actions per the terms described in paragraphs I and J.

Ill. Reservation of Jurisdiction

I. The federal court shall retain jurisdiction over this Agreement, and the Settlement

Agreement entered between the parties on November 29. 20 I7. The parties agree to submit both

Settlement Agreements to the Court for entry of an order retaining jurisdiction over the claims and

for enforcement of the provisions herein consistent with Kokkonen v. Guardian Life Insurance of America, 511 U.S. 375, 114 S.Ct. 1673 (1994).

IV. Miscellaneous Provisions

J. Defendants and HRDC acknowledge and agree that they have been represented by

legal counsel with respect to the matters that are the subject of this Agreement and that they have

entered into this Agreement freely and voluntarily.

K. The Parties agree that facsimile or PDF signatures are deemed to be originals and that this Agreement may be executed in counterparts. Upon signature ofthe Parties, this Agreement

shall be deemed executed, final , and binding.

n {01553160.DOCX

3

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 9 of 11 PAGEID #: 711

L. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter contained herein, and there are no representations, warranties, agreements,

arrangements, or undertakings, oral or written, between or among the Patties hereto relating to the subject matter ofthis Agreement which are not fully expressed herein. This Agreement supersedes all prior negotiations, representations, statements, or promises between the Parties, whether written or oral, as to these matters, except that the Settlement Agreement entered on November 29, 2017 as docket number 12 shall remain in force.

M. This Agreement shall be binding upon and inure to the benefit of Defendants and HRDC, and their respective successors and assigns.

N. The obligations imposed by this Agreement are severable. If for any reason a part of this Agreement is invalid or unenforceable, that determination shall not affect the remainder of this

Agreement.

0 . The Parties agree that this case concerns the First and Fourteenth Amendment rights of a publisher, and is therefore not a case concerning prison conditions as defined in the Prison Litigation Reform Act of 1996.

P. This Agreement and any of its provisions may be amended, mod ified, or terminated only by written agreement signed by HRDC and Defendants. Such written agreement(s) shall be

effective only upon approval by the Court.

rJ..

II Dated this

day of October, 2018.

Stipulated and Agreed to:

{015S3160.DOCX II

4

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 10 of 11 PAGEID #: 712

Date: _(_.;.._~(1---.!.1/_1_ _
COUNTY OF GREENE
By: ~,:.vL~
Title: L1,ut~t lld.ltl,'l"'i:slu./.n
Date: ---llu.O~-...~..t.L.I_-1...4/l~-----

RN~~Approved as to fonn only

By:

((/$'~{4«J_

(DEFENDANTS' ATTORNEY(S)] Approved as to form only By: ,4/ ~pM'A.9.r.'§'UJ Date: _10.8.2018_ _ _ _ _ __

n 10tSS3160.00CX

5

Case: 3:17-cv-00381-SLO Doc #: 25-1 Filed: 10/12/18 Page: 11 of 11 PAGEID #: 713

HRDC v. Greene County (3:17-cv-381} - Agreed Order of Dismissal & Settlement Agreements

Sabarish Neela kanta to Ovington_chambers@ohsd .uscourt s.gov

r "Ellis, Elizabeth", Dan Marshall

, Masimba Mutamba

· c , Robert Newman , "brucejohnson@dwt.com"

10/11/2018 01:40PM

Frorr:

Sabarish Neelakanta <sneelakanta@humanrightsdefensecenter.org>

1 0

"Ovington_chambers@ohsd.uscourts.gov" <Ovington_chambers@ohsd .uscourts.gov>,

'-'.

"E lis, Elizabe:th" <Ecllis@c0.91Cenc.on us~ Dan Marshall

<dm;m;ha!l@htJrnamight~defen~ecenter org>, [,1<JSimba f/iUiaml.Ji'l

<'rrmutamba@hurnanright5dcfensecentcr org>. Robert Ncwmar

4 attachments

-,: Agreed Order of Dismissal.pdf Agreed Order of Dismissal.docx Settlement agreement_10.11.18.pdf
Settlement agreement_11 .29.17.pdf

Good afternoon:
Pursuant to my phone call to chambers today, please find attached a .pdf and Word copy of the Agreed Order of Dismissal in the above referenced case as well as th e 2 settlement agreements that are to be attached and incorporated by reference to the Agreed Order in the cause. I have cc'd counsel for Defendants to this email, who has given consent to this filing. Thank you in advance for your time and consideration.
Sincerely, Sabarish
Sabarish P. Neelakanta General Counsel & Litigation Director Human Rights Defense Center P.O. Box 1151 , Lake Worth, FL 33460 • Tel 561.360.2523 • Fax 866.735.7136 www.humanrightsdefensecenter.org
This communication may be confidential, privileged and/or attorney work product. If you received 1t in error. please notify me and delete it from your system. Any unauthorized use is prohibited and may be unlawful.

Case: 3:17-cv-00381-SLO Doc #: 25-2 Filed: 10/12/18 Page: 1 of 7 PAGEID #: 714

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff,

Case No.: 3: 17-cv-0038 1-TMR

v.

GREENE COUNTY, OHIO, et al.,

Defendants.

SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT (hereinafter referred to as the '·Agreement") as to injunctive claims is made and entered into as of the date this Agreement is signed, by and among the Defendants Sheriff Gene Fischer and Jail Administrator Kirk Keller in their individual and official capacities, and the County of Greene on behalf of itself and all of its officers, directors, employees, fonner employees, agents, predecessors, divisions, successors, administrators, and assigns (collectively " Defendants"), and Human Rights Defense Center ("HRDC" o r " Plaintiff')), on behalf of itself and a ll of its officers, directors, employees, former employees, agents, predecessors, divisions, successors, administrators, and assigns. Defendants and HRDC are collectively referred to as "the Parties''.

I. Recitals

A. At all times relevant hereto, Defendant Gene Fischer was the Sheriff of Greene County, Ohio, and Defendant Kirk Keller was the Jail Administrator for the Greene County Jail ("Jail").
B. Defendant, Greene County, is an organized municipal corporation existing under the laws of the State of Ohio.

C. At a ll times relevant hereto. the Human Rights Defense Center is a not-for-profit

charitable organization recognized under §50 I(c)(3) of the Interna l Revenue Code, incorporated

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Case: 3:17-cv-00381-SLO Doc #: 25-2 Filed: 10/12/18 Page: 2 of 7 PAGEID #: 715

in the state of Washington and with principal offices in Lake Worth, Florida. Through its publishing project, HRDC publishes Prison Legal News, a monthly journal of corrections news

and analysis. HRDC also publishes and/or distributes approximately fifty different softcover

books about the criminal justice system, legal reference books, and self-help books of interest to pnsoners. Further, HRDC sends other correspondence to prisoners in detention facilities, including the Jail.

D. This Agreement addresses and resolves certain disputes arising from and relating to

allegations that Defendants violated HRDC's First and Fourteenth Amendment rights related to

the handling or delivery of books, magazines and enveloped mail to prisoners housed at the Greene

County Jail, and the alleged lack of due process associated with Greene's actions.

E. The Parties agree that Defendants denies any liability in this case. However, in order

to avoid the expense, delay, uncertainty, and burden of litigation, the Parties have agreed to a settlement of the injunctive terms alleged in the Complaint filed in this action. This written

Agreement memorializes the terms of the settlement reached by Defendants and HRDC.

F. No Admission of Liability; No Admissibility. The Parties acknowledge that neither

this Agreement nor any consideration exchanged hereunder shall be regarded as an admission of any fact, allegation, liability, or responsibility of any kind by either of the Parties for any purpose.

This Agreement shall not be admissible in any proceeding, except as is necessary in a proceeding to enforce the terms of this Agreement or to establish or prove the defenses of payment, release, accord and satisfaction, waiver, or estoppel , or as otherwise required by court order.

II. Injunctive Terms

G. Defendants agree that they shall not censor or otherwise fail to deliver the items mailed to prisoners at the Greene County Jail ("Jail ") by HRDC since July 2017, namely: a) copies

of the softcover book, the Habeas Citebook: Ineffective Assistance of Counsel; b) inforn1ational

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brochure packets detailing the publications offered by HRDC to prisoners -the packet contains a

brochure and subscription order form , a book list, and a published books brochure (each of which is a

single page); c) copies of the court opinion, Clement v. California Department of Corrections, 364

F.3d 1148 (9th Cir, 2014); and d) the June- October 2017 issues of the magazine, Prison Legal

News. Defendants further agree that these materials did not and do not threaten any legitimate

penological interests ofthe Jail and will not be censored in the future.

H. For all mailings sent after the date of this Agreement, Defendants shall deliver, if

consistent with Defendants ' legitimate penological interests and express policy terms based thereon,

publications (i. e., books, magazines, and newspapers) and other materials sent to prisoners at the Jail

from publishers, book clubs, bookstores, or established vendors or distributors. It is agreed that

HRDC is a publisher and book distributor as contemplated by this Agreement. Defendants shall not

condition delivery of any publication on the recipient relinquishing ownership of said publication.

Further, Defendants shall not censor publications solely because it is in the form of a book, a

magazine or newspaper article unless the content of such material threatens the Jail's legitimate

penological interests. Additionally, Defendants shall not refuse to deliver materials sent by HRDC

because the item(s) were sent using stamps rather than metered postage, and/or had a mailing or

address label affixed to it. Finally, Defendants shall not refuse delivery of any issue(s) of PLN sent

by HRDC solely because it contains staples. Defendants may remove the staples before delivering

such issues to the intended prisoner-recipient.

I. Defendants shall be allowed to institute reasonable limitations on the volume of

publications and/or or other correspondence a prisoner may have in his or her prison cell to further

the legitimate penological interests ofthe Jail.

J. Whenever authorities at the Jail refuse to deliver any publication or other

correspondence sent to a prisoner at the Jail for any reason, Jail personnel shall place into the mail

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written notice to the sender within three (3) business days of making an initial mail rejection decision. The notice shall include the name and address of the publisher as well as the name(s) ofthe intended recipient(s), a description of the refused item of mail, a citation to the objectionable portion of the publication or correspondence, and a citation to the Jail rule concerning the way in which the censored speech would threaten one of the defendants' specific legitimate penological interests. The notice shall also inform the sender o f their right to appeal the decision, and include the name and address of the person to whom such appeals should be addressed and the date by which appeals must be submitted. The notice shall also be given to the intended prisoner-recipient of the mail. The refused item(s) will be retained by the Jail in accordance with the appeal process established by the Jail. Additionally, the review process for the appeal shall include the sender' s and prisonerrecipient's right to have its appeal , if any, considered and resolved by a decision maker at the Jail who did not participate in the original decision to refuse to deliver the publication or enveloped mail in question. Any decision on the appeal shall be mailed to the sender and intended prisoner-recipient within three (3) business days.
K. Defendants Gene Fischer and Kirk Keller, and their agents, assigns, employees, deputi es, and successors will establish, implement, and enforce policies and procedures that will fully effectuate the injunctive terms of this Agreement.
L. It is further agreed that within thirty (30) days ofthe date of filing ofthi s Agreement, Defendants will disseminate a copy to a ll employees of the Jail, as well as to all persons in custody at the Jail, and that the injunctive terms of this Agreement will be fully implemented by all Jail staff persons. Further, a copy of this Agreement shall be posted on the Greene County Sheriff's website, shall be avai lable to pri soners in the Jail 's library, and copies of this Agreement shall be posted in the common areas of the Jail for a period of ninety (90) days after the date of entry of the Agreement

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by the Court. Defendants' counsel will furnish the Court and Plaintiffs counsel with written confirmation that Defendants have complied with the provisions of this paragraph.

M. The bond requirement of Fed. R. Civ. P. 65(c), if any, is waived.

III. Reservation of Jurisdiction

N. The federal court shall retain jurisdiction over this Agreement. The parties agree to submit this Agreement to the Court for entry of an order retaining jurisdiction over the claims and for enforcement of the provisions herein consistent with Kokkonen v. Guardian Life Insurance of America, 511 U.S. 375, 114 S.Ct. 1673 (1994).

IV. Miscellaneous Provisions 0 . Defendants and HRDC acknowledge and agree that they have been represented by legal counsel with respect to the matters that are the subject of this Agreement and that they have entered into this Agreement freely and voluntarily.

P. The Parties agree that facsimile or PDF signatures are deemed to be originals and that this Agreement may be executed in counterparts. Upon signature ofthe Parties, this Agreement shall be deemed executed, final , and binding.

Q. This Agreement sets forth the entire understanding between the Parties with respect to the subject matter contained herein, and there are no representations, warranties, agreements, arrangements, or undertakings, oral or written, between or among the Parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. This Agreement supersedes all prior negotiations, representations, statements, or promises between the Parties, whether written or oral, as to these matters.

R. This Agreement shall be binding upon and inure to the benefit of Defendants and HRDC, and their respective successors and assigns.

S. The obligations imposed by this Agreement are severable. If for any reason a part of

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this Agreement is invalid or unenforceable, that clctcrminntion shall not nffcct the remainder of this Agreement .

T. The Parties ngrce thnt this cnsc concerns the First and rourteenth Amendment rights of n publisher, und is therefore:: not o case conceming prison conditions as defined in the Prison Litigation Reform Act of 1996. The Pnrties nlso ngrce that the injunctive relief contained herein is nnrrowly drown, extends no fmthcr thnn necessary to correct the honn to HRDC, und is the lcust

imrusivc means necessary to colTcct that hnnn.

U. The Parties agree that the public interest is served by the injunctive rdicf herein,

which protects the constitutional rights of publishers and other persons who correspond with prisoners by moil, and the right of prisoners to send nnd receive moil.

V. This Agreement nnd nny of its provisions mny be nmendcd, modified, or lenninnted only by written ngrcement signed by HRDC nnd Defendants. Such written ngreement(s) shall be

effective only upon approval by the Court.
Dntcd this~ tJ~duy of November, 2017.

Sliflulnted nml Agrceu to:

~
::MAN ~'l'S-UEF:SE CENTER

Tirte/ \·I E'\r s_- ' -~ v~ t{f<..r ")\ L>ntc: \ ~) ~JJ

COUNTY OF GUE£NE

13y,: Title: Datl!:

GREENE COUNTY SHERIFF'S OFFICE yENE FISC11ER, SHERifF 1ZO E Main Sl.
- - - Xenia, OH 45385

(OISS3160.000 /)

Case: 3:17-cv-00381-SLO Doc #: 25-2 Filed: 10/12/18 Page: 7 of 7 PAGEID #: 720
!PLA INTIFF'S ATT~l7(S) I Approved us to form only
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7