UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS,
Plaintiff, VS.
BRAD LIVINGSTON, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-09-296 § § § §

ORDER

On this day came on to be considered Defendants Livingston, White, and

Campuzano’s Motion to Transfer Venue (D.E. 11), Defendants Livingston, White, and

Campuzano’s Motion to Dismiss for Lack of Standing (D.E. 12), Defendant Smith’s

Motion to Dismiss for Lack of Standing (D.E. 16), Defendant Brown’s Motion to

Dismiss for Lack of Standing (D.E. 19), and Defendant Lopez’s Motion to Dismiss for Lack of Standing (D.E. 30).1 For the reasons stated herein, the Court DENIES

Defendants’ Motion to Transfer Venue (D.E. 11), and DENIES in part Defendants’

Motion to Dismiss for Lack of Standing (D.E. 12, 16, 19, 30).

I. Jurisdiction

The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§

1331 (federal question), 1343(a)(3) and (4) (civil rights).

II. Factual Background

Plaintiff Prison Legal News (“PLN”) publishes a monthly legal information

magazine and distributes over fifty books dealing with the rights of incarcerated

1 Defendants have filed three separate Motions to Dismiss for Lack of Standing, due to the different times at which Defendants were served. The Motions, however, are substantively identical and this Order will cite only to the first-filed Motion (D.E. 12) when referring to specific arguments made therein.
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individuals. PLN is a distributor of Women Behind Bars: The Crisis of Women in the
U.S. Prison System, written by Silja J.A. Talvi and Perpetual Prisoner Machine: How
America Profits from Crime, by Joel Dyer. The following factual background is based
upon allegations Plaintiff PLN makes in its Original Complaint. (D.E. 1.)
PLN alleges that, in December 2008, a female prisoner at the Texas Department
of Criminal Justice (“TDCJ”) Hilltop Unit located in Gatesville, Texas ordered a copy of
Women Behind Bars from PLN. PLN placed the book in the mail, and it arrived at the
Hilltop Unit mailroom. (D.E. 1 at 4-5.)
At the Hilltop Unit mailroom, an official identified in the Complaint as John Doe
1 allegedly completed a TDCJ “Publication Review/Denial Notification” form. This
form notified the prisoner that she could not receive Women Behind Bars because “a
specific determination has been made that the publication is detrimental to offenders’
rehabilitation, because it would encourage homosexual or deviant criminal behavior.”
(D.E. 1 at 5.) The notification suggested that the book was censored because page 38
depicted “sex with a minor.” PLN did not receive a copy of the notice or directions on
how to appeal the decision. (D.E. 1 at 5.)
The relevant section of Page 38 of Women Behind Bars, which led to the TDCJ’s
decision to censor the book, reads as follows:
What is even more remarkable about [Tina] Thomas [a medical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her adult life. It might have been precisely that background that first propelled her to become an overachiever and attain a high level of professional success, but then came back to haunt her just as she had gotten to where she wanted to go. The dark secret of her life was that she had been forced to perform fellatio on her uncle when she was just four years old. Thomas explained that this unresolved trauma became ‘the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.’
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(D.E. 1 at 5-6; D.E. 12-2 at 6.) The page contains no further discussion of “sex with a minor.” John Doe 1’s censorship decision was reviewed by Defendant Jennifer Smith, the program specialist for TDCJ’s Mail System Coordinators Panel (“MSCP”), and the TDCJ’s Director’s Review Committee (“DRC”). Smith is responsible for reviewing publications censored by the TDCJ mailroom staff. (D.E. 1 at 2.) The DRC is composed of Defendants Gilbert Campuzano, Jennifer Smith, Joni White, Richard Lopez, Kevin Campbell, and Chris Bell. The DRC upheld Doe 1’s decision, and the prisoner was not allowed to receive Women Behind Bars. PLN stated that it was not informed of this decision, or told how to present information to the DRC during the review process. (D.E. 1 at 6.)
After the book was censored, it was placed on a list of “disapproved” books that is circulated to other TDCJ mailrooms. Thereafter, in September 2009, PLN claims that it sent two more copies of Women Behind Bars to prisoners in TDCJ’s Garza East Unit, in Beeville, Texas. Defendant E. Brown at the Garza East Unit censored the books, again relying on the “sex with a minor” passage on page 38. Brown did not provide PLN with a copy of the “Publication Review/Denial Notification” or any other information about how to contest the decision. (D.E. 1 at 6.)
In March 2009, PLN states that it sent a copy of another book, Perpetual Prisoner Machine: How America Profits from Crime to a prisoner incarcerated at TDCJ’s Allred Unit in Iowa Park, Texas. The TDCJ allegedly “disapproved” of this book because page 45 discussed “rape.” According to PLN, page 45 in fact quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners. PLN states that it was not provided with information about
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how to contest the TDCJ’s censorship decision, or provide any opportunity to do so. (D.E. 1 at 7.)
PLN alleges that Defendants’ censorship regime, as authorized and supervised by Defendant Brad Livingston, the Executive Director of the TDCJ, is “arbitrary, serves no legitimate penological purpose as applied to PLN’s publications, and violates the constitutional rights of publishers like PLN. Livingston moreover fails to ensure the regime provides publishers constitutionally-required due process to contest decisions to ban their publications.” (D.E. 1 at 7.) PLN further alleges that TDCJ’s written policies do not permit censorship of publications like Women Behind Bars or the Perpetual Prisoner Machine for the reasons Defendants have identified, and contends that Defendants will likely continue to censor books PLN distributes without providing PLN due process. (D.E. 1 at 7.)2 PLN contends that distribution of the books will “not have any significant impact on TDCJ facilities or programs,” and “[r]eadily available alternatives to censoring [the books] could, at de minimis cost, easily satisfy any legitimate or significant interests of TDCJ without sacrificing the free speech and expression rights of PLN and the prisoners in TDCJ custody.” (D.E. 1 at 7.) PLN claims that violation of its constitutional rights have resulted in lost revenue from book sales and loss of business reputation, in addition to the loss of its free speech and due process rights. (D.E. 1 at 8.)
2 Although the Complaint at times implies that PLN is the “publisher” of these books (see, e.g., D.E. 1 at 8), PLN in fact only distributes Women Behind Bars and Perpetual Prisoner Machine. According to the Library of Congress catalog, http://catalog.loc.gov, Women Behind Bars is published by Seal Press, and Perpetual Prisoner Machine is published by Westview Press. Both are member of the Perseus Book Group. See http://www.perseusbooksgroup.com/perseus/about_us.jsp.
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III. Procedural Background On November 4, 2009, Plaintiff PLN filed suit in this Court pursuant to 42 U.S.C.
§§ 1983 and 1988 against Defendant Livingston, in his individual capacity and his official capacity as director of the TDCJ, and Defendants Smith, Brown, John Doe, Campuzano, White, Lopez, Campbell, and Bell, in their individual capacities. (D.E. 1.) Plaintiff claims that Defendants’ censorship of Women Behind Bars and Perpetual Prisoner Machine violates PLN’s free speech and expression rights, and Defendants’ failure to notify PLN of its decision violated PLN’s due process rights. (D.E. 1 at 8.) PLN further alleges that Defendants’ actions did not further any legitimate penological interest, and they acted “wantonly, willfully and/or maliciously” in violating PLN’s rights. (D.E. 1 at 8.) Plaintiff seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech and due process rights, injuries to its business reputation, and loss of revenue. Plaintiff also requests appropriate declaratory relief as well as permanent injunctive relief requiring (1) Defendants to provide written notice to publishers and an opportunity to respond before censoring their publications, and (2) the adoption of specific guidelines delineating what materials may be delivered to prisoners through the mail. (D.E. 1 at 9.)
On December 7, 2009, Defendants Livingston, White, and Campuzano filed a Motion to Transfer Venue, arguing that the case should be transferred to the Western District of Texas, Waco Division, as it is closest to the Hilltop facility, where many of the events giving rise to this litigation arose. (D.E. 7.) Also on December 7, these Defendants filed a Motion to Dismiss for lack of standing. (D.E. 12.) Subsequent Motions to Dismiss for lack of standing, substantively identical to the first Motion, were
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filed by Defendant Smith (D.E. 16) and Brown (D.E. 19) on December 9 and December 11, 2009, respectively. The Court first considers Defendants’ Motion to Transfer Venue. IV. Discussion
A. Motion to Transfer Venue (D.E. 11) 1. Applicable Law
Section 1404(a) of Title 28 provides, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). District courts “have broad discretion in deciding whether to order a transfer. But this discretion has limitations imposed by the text of § 1404(a) and by the precedents of the Supreme Court and [the Fifth Circuit] that interpret and apply the text of § 1404(a).” In re Volkwagen of America, Inc., 545 F.3d 304, 311 (5th Cir. 2008) (internal citations and quotation marks omitted). As the Fifth Circuit has explained, “[t]he underlying premise of § 1404(a) is that courts should prevent plaintiffs from abusing their privilege under § 1391 by subjecting defendants to venues that are inconvenient under the terms of § 1404(a). Thus, while a plaintiff has the privilege of filing his claims in any judicial division appropriate under the general venue statute, § 1404(a) tempers the effects of the exercise of this privilege.” Id. at 313 (internal citations omitted).
To obtain a transfer, the moving party must show good cause. “This ‘good cause’ burden reflects the appropriate deference to which the plaintiff’s choice of venue is entitled. [W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff’s choice should be respected. When the movant demonstrates that the transferee venue is clearly more convenient, however, it has shown
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good cause and the district court should therefore grant the transfer.” In re Volkwagen, 545 F.3d at 315.
In evaluating a motion to transfer venue under Section 1404(a), “the first determination to be made is whether the judicial district to which transfer is sought would have been a district in which the claim could have been filed.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). Once the Court makes this determination, it must then focus on “the language of § 1404(a), which speaks to the issue of ‘the convenience of parties and witnesses’ and to the issue of ‘in the interest of justice.’” Id. The “convenience” determination “turns on a number of private and public interest factors, none of which are given dispositive weight.” Id. “The private concerns include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.” Id. The public concerns include: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the application of foreign law.” Id. The factors relevant to the “interests of justice” include “the pendency of related litigation in another forum [and] delays due to docket congestion.” See, e.g., Salinas v. O’Reilly Automotive, Inc., 358 F. Supp. 2d 569, 573 (N.D. Tex. 2005).
In this case, Defendants argue that this action should be transferred to the Waco Division of the Western District of Texas for a number of reasons. First, they argue that the Western District of Texas is an appropriate venue for this case. The case might have
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been brought there, as a substantial part of the events giving rise to Plaintiff’s claims occurred there and unserved defendant John Doe presumably resides in that judicial district. The policies and procedures Plaintiff disputes first arose at the Hilltop Facility, which is in the Waco Division. (D.E. 11 at 6.) Defendants also contend that Plaintiff’s choice of venue is entitled to little deference, as it is not a resident of the Southern District of Texas, and the operative facts of Plaintiff’s complaint first arose in the Waco Division. (D.E. 11 at 6.) Beyond these considerations, Defendants also argue that the private interest and public interest factors weigh in favor of transfer. Specifically, Defendants contend that most relevant documents and witnesses are located at the Hilltop facility in Gatesville, Texas. Trial in this court would force subpoenaed witnesses to come to the courthouse at their own expense, and maximum security female inmate witnesses at the Hilltop facility would have to be transported at considerable expense. These inmates would have to be housed overnight at Corpus Christi area jails. Trial here, Defendants argue, would also lead to staffing shortages at the Hilltop facility, as staff could be called as witnesses and appear in Court in Corpus Christi. In sum, the private interest factors favor transfer, Defendants contend, due to the cost and potential public safety issues that would be incurred by the transportation of staff and inmate witnesses to this Court in a potential trial. (D.E. 11 at 9.) Defendants further argue that the public interest factors also favor transfer. There is greater court congestion in the Southern District of Texas, and the Western District has a more direct interest in adjudicating this case, since a majority of the alleged actions upon which Plaintiff’s claims are based allegedly occurred at the Hilltop facility. (D.E. 11 at 9-10.)
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In response, Plaintiff argues that Defendants have not met their burden to show sufficient good cause to transfer the case, and have not demonstrated that Waco is more convenient. Defendants have not shown that the private interest factors weigh in favor of transfer. First, the relative ease of access to sources of proof is negligible, as most discovery can be done electronically, and, in any event, counsel for all parties are located in Austin, making transport of documentary evidence inevitable. Second, the time and expenses need to transport inmate and staff witnesses would increase if the case were transferred to Waco, given the numerous witnesses located in the Southern District. Moreover, any costs that Defendants incurred for transportation of witnesses would be reimbursed by the State. (D.E. 22 at 5-9.) Plaintiffs argue that the public factors also favor this Division. Accounting for the different number of judges, the number of cases filed in the Western versus Southern Districts is roughly equal and does not favor a change of venue. Additionally, TDCJ operates a large number of prisons in the Southern District of Texas and its headquarters are in Huntsville, Texas, within the Southern District. As more TDCJ facilities are located in the Southern District than the Western District, the residents of the Southern District have a stronger interest in this litigation. (D.E. 22 at 9-10.)
2. Western District of Texas is an Appropriate Venue As an initial matter, it is true that this case might have been brought in the Western District of Texas, Waco Division, as it is the “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(a)(2). The Complaint notes that initial decision to censor the book occurred in the Western District, when John Doe 1 refused to deliver Women Behind Bars to the prisoner
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due to its depiction of “sex with a minor.” (D.E. 1 at 5.) However, simply because this case might have been brought in the Waco Division does not necessarily mean it should be transferred there. To make this determination, the Court must focus on the various factors outlined above.
3. Public and Private Interest Factors Turning first to the public interest factors, many of these factors are either inapplicable or weigh against transfer. Both courts are equally familiar with the law that will govern the case, and no conflict of laws issues exist. Further, as the alleged censorship decision also occurred at the Garza East Unit, in the Corpus Christi Division of the Southern District of Texas, this District has a local interest in having “localized interests decided at home.” Additionally, while it is true that the Southern District has on average more civil filings than the Western District, the Corpus Christi Division is able to promptly adjudicate this case without undue delay or “administrative difficulties flowing from court congestion.” Finally, no related litigation is pending in another forum. The relevant private factors also weigh against transfer. First, with regard to the relative ease of access to sources of proof, the fact that certain evidence may be geographically remote from this Division does not lead to the conclusion that transfer is warranted. As other courts have recognized, modern technology has lessened the concerns raised by the remote geographic location of witness, documents, and other sources of proof. See, e.g., Milwaukee Elec. Tool Corp. v. Black & Decker (N.A.), Inc., 392 F. Supp. 2d 1062, 1064 (W.D. Wis. 2005) (“[T]echnological advancements have diminished traditional concerns related to ease of access to sources of proof and the cost of obtaining attendance of witnesses. While geographic concerns remain a part of the
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analysis the Court is mindful that relevant documents and witnesses can be transported to this district in a fast and relatively inexpensive manner.”) (internal citations and quotation marks omitted). Further, as regards access to witnesses, “[t]he moving party must offer more than mere allegations that certain key witnesses are not available or are inconveniently located. Instead, the movant must specifically identify the key witnesses and outline their testimony.” See Mid-Continent Cas. Co. v. Petroleum Solutions, Inc., 629 F. Supp. 2d 759, 763 n.3 (S.D. Tex. 2009). In this case, Defendants have just made general claims of inconvenience without offering any specifics; this is insufficient to demonstrate that transfer is proper.
Second, with regard to the availability of compulsory process to secure the attendance of witnesses, Defendants have again failed to demonstrate that this factor favors the Waco Division. Although Defendants contend that a few witnesses at the Hilltop facility, beyond the 100 mile compulsory process of this Court pursuant to Federal Rule of Civil Procedure 45(c)(3)(A)(ii), may have to be called through compulsory process, this contention is merely speculative. In any event, Plaintiff has also identified witnesses who would also present compulsory process difficulties. (D.E. 22 at 6.) At most, this factor is neutral.
The third factor, the costs of attendance for willing witnesses, also favors this Division. According to Plaintiff’s response, many of its witnesses are actually located much closer to Corpus Christi. Three copies of Women Behind Bars that Defendants allegedly censored were sent to prisoners at TDCJ facilities in the Southern District of Texas. Two prisoners live at the Garza East Unit, approximately 55 miles from Corpus Christi but approximately 298 miles from Waco, and one prisoner lives at the Segovia
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Unit, approximately 147 miles from Corpus Christi but over 400 miles from Waco. Lou Johnson, the inmate who ordered but did not receive Women Behind Bars while at the Hilltop Unit has since been released and now resides in the Houston area, according to Plaintiff. Finally, Plaintiff has brought to the Court’s attention several other inmates, all housed at TDCJ facilities located closer to Corpus Christi, who may be called to testify because they allegedly received the book without censorship.3 Staff at all of these TDCJ facilities may also be called to testify. While it may be true that certain witnesses at the Hilltop facility, and Defendants who reside in Huntsville, Texas, would be inconvenienced by trial here, any such expenses will likely be reimbursed by the State. On balance, this factor does not support transfer.
The final factor, “other practical problems that make trial of a case easy, expeditious and inexpensive,” also does not favor transfer. Although certain inmate witnesses may have to be transported long distances to Corpus Christi if their in-person testimony were needed, thus raising cost and public safety concerns, the reverse is true for inmate witnesses located at TDCJ facilities near Corpus Christi. Defendants have not demonstrated that a transfer of venue would do anything other than shift these concerns from certain witnesses to others.
Overall, none of the public or private factors suggest that the Waco Division would be “more convenient” than the Corpus Christi Division, as the law requires. In re Volkwagen, 545 F.3d at 315. Given the relatively widespread location of evidence, staff witnesses, inmate witnesses, and attorneys, a transfer to the Waco Division would merely shift, not eliminate, transportation costs and related issues. “A case should not be
3 Plaintiff states that it would call these witnesses to show that the censorship serves no legitimate penological interest. (D.E. 22 at 6-7 & n.5.)
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transferred if the only practical effect is to shift inconvenience from the moving party to the nonmoving party.” Goodman Co., L.P. v. A & H Supply, Inc., 396 F. Supp. 2d 766, 776 (S.D. Tex. 2005).
As Defendants have not demonstrated that transfer of venue is proper in this case, the Court must deny Defendants’ Motion to Transfer Venue to the Western District of Texas, Waco Division. (D.E. 11.)4
B. Motion to Dismiss for Lack of Standing (D.E. 12, 16, 19) Defendants’ Motions to Dismiss have been filed pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Defendants raise three primary arguments: lack of standing, expiration of the relevant statute of limitations, and qualified immunity (for Defendants sued in their individual capacities). (D.E. 12, 16, 19.) As the Court has granted the parties leave to submit additional briefing on the issue of qualified immunity, the Court addresses only the lack of standing and statute of limitations issues in this Order. When reviewing a motion to dismiss under Rule 12(b)(1), a district court may dismiss the action based upon: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court's resolution of disputed facts. Williams v. Wynne, 533 F.3d 360, 365 n.2 (5th Cir. 2008). The party who invokes federal court jurisdiction bears
4 Defendants argue, in the alternative, that the Houston Division of the Southern District of Texas is the next appropriate venue, mainly because many of the witnesses and relevant documents are located in Huntsville, Texas, within the Houston Division. Further, potential female inmate witnesses could be held at a TDCJ female facility in Texas City. (D.E. 11 at 3 n.2.) Other than convenience of certain parties, there is no good reason to transfer this case to Houston. Many of the potential inmate and staff witnesses reside closer to the Corpus Christi or Waco Divisions, and the attorneys are located in Austin. A transfer to Houston would do little to increase convenience in this case.
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the burden of showing that jurisdiction is proper. Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir. 2002).
When reviewing a motion to dismiss for failure to state a claim, all well-pleaded facts are accepted as true and are viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007); Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003) (“This Court construes the complaint liberally in favor of the plaintiff, and takes all facts pleaded in the complaint as true.”). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss under rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).
1. Standing to Bring First Amendment Claim In Thornburgh v. Abbott, 490 U.S. 401 (1989), the Supreme Court recognized that “publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” 490 U.S. at 408. The Court went on to focus, not on the question of whether publishers (as opposed to others) have a First Amendment right to access prisoners, but rather on the “standard of review [the Supreme] Court should apply to prison regulations limiting that access.” Id. The parties disagree as to whether the right recognized in Thornburgh extends to book distributors. Defendants contend that Plaintiff, as a distributor, does not have a recognized constitutional right of access to inmates, and therefore lacks standing to bring this case. (D.E. 12 at 4-5.) In response, Plaintiff argues
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that the Supreme Court and lower courts have consistently recognized the constitutional right of distributors to challenge regulations restricting the distribution of books. (D.E. 21 at 2-3.) Moreover, Plaintiff argues that it fits the relevant standing requirements. (D.E. 21 at 4.)
a. First Amendment Rights of Distributors The Supreme Court has repeatedly recognized the First Amendment rights of book distributors in a variety of circumstances, which exist independently of the rights of publishers or readers. In 1938, the Supreme Court in Lovell v. City of Griffin, Ga., reviewed a city ordinance that prohibited the distribution of “circulars, handbooks, advertising, or literature of any kind.” In concluding that the ordinance violated the First Amendment, the Court stated, “[t]he ordinance cannot be saved because it relates to distribution and not to publication. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.’” 303 U.S. 444, 452 (1938) (quoting Ex Parte Jackson, 96 U.S. 727, 733 (1877)). Later, in Smith v. California, the proprietor of a bookstore challenged a city ordinance prohibiting the possession of obscene materials anywhere books were sold. 361 U.S. 147, 148-49 (1959). In noting that the proprietor was entitled to First Amendment protections, the Court stated, “it . . . requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms [of the press and of speech]. It is of course no matter that the dissemination takes place under commercial auspices. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.” 361 U.S. at 150. Soon after, in 1963, the Court in Bantam Books, Inc. v.
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Sullivan again noted the First Amendment rights of book distributors, stating “the constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication.” 372 U.S. 58, 64 n.6 (1963). The Supreme Court has reiterated this principle in other cases. See Griswold v. Connecticut, 381 U.S. 479, 482-83 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive . . . . Without those peripheral rights the specific rights would be less secure.”). Lower courts have also consistently affirmed the First Amendment rights of distributors. In Lerman v. Flynt Distributing Co., the Second Circuit stated that “First Amendment guarantees have long been recognized as protecting distributors of publications.” 745 F.2d 123, 139 (2d Cir. 1984); see VIP of Berlin, LLC v. Town of Berlin, 644 F.Supp.2d 151, 158 (D. Conn. 2009) (citing Smith, Lerman). Similarly, in U.S. v. 18 Packages of Magazines, the court reasoned, “[t]he First Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read.” 238 F. Supp. 846, 847-48 (N.D. Cal. 1964).
Although no case has directly addressed the First Amendment rights of distributors who seek to send books or other publications to prisoners, the cases discussed above firmly establish that First Amendment protections apply not only to readers and publishers, but to book distributors as well, and may be invoked when a distributor seeks to challenge a governmental action that interferes with its constitutional rights.
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b. Standing Requirements Beyond these general considerations as to the First Amendment rights of book distributors, the general standing requirements support the conclusion that Plaintiff has standing in this case. Standing is “an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, “a plaintiff must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant’s challenged action; and redressable by a favorable ruling. [T]he critical question is whether [the] petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Horne v. Flores, __ U.S. __, 129 S. Ct. 2579, 2592 (2009) (citing Lujan, 504 U.S. at 560-61.) Here, Plaintiff’s injury is concrete, particularized, and actual. It was prevented from distributing two of its books to Texas prisoners, and both books are now on the unauthorized list. Plaintiff has suffered damages to its constitutional free speech and due process rights, injuries to its business reputation, and loss of revenue. (D.E. 1 at 9; D.E. 21 at 4.) This injury is clearly traceable to Defendants’ challenged action, being due solely to their alleged censorship decision. Finally, the injury is redressable by a favorable ruling, as a ruling in Plaintiff’s favor may result in the award of damages, declaratory, and injunctive relief. In sum, the Court concludes that Plaintiff has standing to assert the claims made in its Original Complaint under the First Amendment. 5
5 With respect to Plaintiff’s due process claim, Defendants contend that when the books at issue in this case were determined to be inappropriate for the prison setting they sent notice to the requesting inmate and the publisher of each book, thus satisfying legal requirements and Thornburgh. They therefore contend that Plaintiff’s claims are now moot. (D.E. 12 at 4-5.) Plaintiff disputes Defendant’s contention, and claims that there is no factual basis to support Defendants’ claim that notification was sent to the publishers; further, as Defendants seek dismissal under Rule 12(b), not summary judgment, the Court should not look beyond the pleadings. Moreover, the question now is not whether the publisher received notice, but
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2. Statute of Limitations Bar
The statute of limitations for Section 1983 claims is determined by the statute of
limitations for personal-injury torts of the state in which the cause of action arose. See
Wallace v. Kato, 549 U.S. 384, 387 (2007) (“Section 1983 provides a federal cause of
action, but in several respects relevant here federal law looks to the law of the State in
which the cause of action arose. This is so for the length of the statute of limitations: It is
that which the State provides for personal-injury torts.”) In Texas, this statute of
limitations is two years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (“[A] person
must bring suit for . . . personal injury . . . not later than two years after the day the cause
of action accrues.”). The cause of action under Section 1983 accrues, and thus the
limitation period begins to run when “the plaintiff is in possession of the ‘critical facts
that he has been hurt and who has inflicted the injury.’” Dixon v. Hubert, 260 Fed. Appx.
727, 728 (5th Cir. 2007) (quoting Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir.1980)).
Defendants contend that Plaintiff’s claim regarding Perpetual Prisoner Machine is
time-barred, as the decision to add this publication to the prohibited materials list was
made in 2000, nine years before Plaintiff filed this lawsuit. Defendant argues that
Plaintiff’s claims are subject to a two year statute of limitations, and any claims that arose
prior to November 3, 2007 are time-barred and should be dismissed. (D.E. 12 at 5.) In
whether Plaintiff as distributor received notice. (D.E. 21 at 6.) Here, Plaintiff is asserting its own right to receive notice and an opportunity to object to the TDCJ decision. Whether the publisher received notice is of no relevance to Plaintiff’s own due process rights. As the Court has determined that Plaintiff, as a book distributor, has First Amendment protections, it is entitled to due process when those rights are infringed. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Several circuits have recognized that both prisoners and publishers have a right to procedural due process (notice and opportunity to be heard) when their publications are rejected. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004); Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001); Montcalm Publ’g Co. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996) (“[P]ublishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate-subscribers.”). If distributors have the same rights of access to prisoners as publishers, it follows that they should have the same due process protections as well.
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response, Plaintiff argues that the statute of limitations defense is not applicable, as the issue is not when Perpetual Prisoner Machine was placed on the banned book list but rather when PLN suffered an injury from the censorship; this injury occurred within the two year limitations period, and a claim was made within this time period as well. As Defendants did not provide PLN with notice when the book was placed on the banned book list, PLN had no way to know that the book was subject to censorship at the time. (D.E. 21 at 7.)
While it may be true that the original decision to place Perpetual Prisoner Machine on the list of prohibited materials occurred in 2000, Plaintiff’s complaint does not arise from this event, but rather the March 2009 incident in which this publication did not reach its intended recipient at TDCJ’s Allred Unit. (D.E. 1 at 6.) In other words, Plaintiff was first injured in March 2009, when it sent Perpetual Prisoner Machine to an inmate at the Allred Unit but the book was not delivered due to the DRC’s earlier decision to place it on the list of prohibited materials. Only after this occurrence was Plaintiff “in possession of the critical facts that [it] ha[d] been hurt and who ha[d] inflicted the injury.” Dixon, 260 Fed. Appx. at 728. The Section 1983 cause of action therefore did not accrue until March 2009, and is well within the two year limitations period.
In sum, the Court rejects Defendants’ argument that Plaintiff lacks standing to bring a First Amendment challenge in this case, as existing case law demonstrates that First Amendment protections extend to a book distributor. The Court also rejects Defendants’ statute of limitations argument, as Plaintiff’s injury with respect to Perpetual Prisoner Machine did not occur until March 2009.
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V. Conclusion For the reasons stated above, the Court DENIES Defendants’ Motion to Transfer
Venue. (D.E. 11.) Also for the reasons stated above, the Court DENIES IN PART Defendants’ Motions to Dismiss for lack of standing and expiration of the statute of limitations. (D.E. 12, 16, 19, 30.) The Court defers judgment on the issue of qualified immunity. Defendants may submit additional briefing on the subject of qualified immunity by January 6, 2010, and Plaintiff must respond no later than January 13, 2010.
SIGNED and ORDERED this 17th day of December, 2009. ___________________________________ Janis Graham Jack United States District Judge
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 Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS, a non-profit, §

Washington corporation,

§

§

Plaintiff

§

v.

§

§

§

BRAD LIVINGSTON, in his individual §

and official capacity as the executive

§

director of the Texas Department of

§

Criminal Justice, JENNIFER SMITH, E. §

BROWN, JOHN DOE, GILBERT

§

CAMPUZANO, JONI WHITE,

§

RICHARD LOPEZ, KEVIN

§

CAMPBELL, and CHRIS BELL in their §

individual capacities

§

§

Defendants.

§

CAUSE NO. .

COMPLAINT

Plaintiff Prison Legal News respectfully files this Complaint and will show:

STATEMENT OF CLAIM

1. Plaintiff Prison Legal News br ings this civil rights action for redress of violations

of its righ ts to f ree speech and due process under the law, s eeking injunctive and declaratory

relief, as well as no minal, compensatory a nd punitive damages against Defendants, as

appropriate.

2. Plaintiff complains Defendants have vi olated and continue to violate its

constitutional rights under color of law and in violation of the First and Fourteenth Amendments

of the United States Constitution.

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 2 of 11
JURISDICTION AND VENUE 3. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343(a)(3) and (4), a nd the aforementioned federal statutory and constitutional provisions. 4. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because the events complained of occurred within this district.
PARTIES 5. Plaintiff Prison Legal News (PLN) is a project of the Hum an Rights Defense Center, a Washington non- profit IRS section 501(c)(3) corporat ion. It has offices in Seattle , Washington and Brattleboro, Vermont. 6. Defendant Brad Livingston is the executive director of the Te xas Department of Criminal Justice (TDCJ). As such, Livings ton is the commanding officer of all TDCJ correctional officers, guards, and TDCJ e mployees and contractors, and is responsible for their training, supervision, and conduct. By law, he is responsible for pro tecting the constitu tional rights of all persons and entities interacting with TDCJ, including PL N. At all r elevant times, Livingston was acting under color of law and as the agent, and, as a m atter of law, the official representative of TDCJ. He is s ued in h is individual capacity for nominal, punitive, and compensatory damages, and his official capaci ty for prospective injunctive and declaratory relief. He can be served with pro cess at 209 W . 14th St., Austin, TX 78701. Service is requested. 7. Defendant Jennifer Sm ith is the program specialist for TDCJ’s Mail System Coordinators Panel (MSCP). As such, Sm ith is responsible for review of publications censored by TDCJ mailroom staff. At a ll relevant times, Smith was acting under color of law and as the agent, and, as a m atter of law, the official repres entative of TDCJ. She is sued in her individual
2

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 3 of 11
capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served with process at P.O. Box 99, Huntsville, TX 77342. Service is requested.
8. Defendant E. Brown is a m ailroom representative at TDCJ’s Garza Eas t Unit in Beeville, Texas. Brown is responsible for censoring publications as they arrive at the Garza East mailroom before they are distributed to prisoners. At all relevant times, Brown was acting under color of law and as the agent, and, as a m atter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served with pro cess at 4304 Highway 202, Beeville, TX 78102. Service is requested.
9. Defendant John Doe 1 is a m ailroom representative at TDCJ’s Hilltop Unit in Gatesville, Texas. Doe 1 is r esponsible for censoring publications as they arrive at th e Hilltop mailroom before they are distributed to prisoners. At all rele vant times, Doe 1 was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. He is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief.
10. Defendant Gilbert Campuzano is a m ember of TDCJ’s Director’s Review Committee (DRC). The DRC is com posed of Smith, Ca mpuzano and five other TDCJ administrators, and reviews decisio ns to censo r publications m ade by the m ailroom staff. Campuzano is sued in his individu al capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. He can be served with process at 4616 W. Howard Lane, Suite 200, Austin, TX 78728. Service is requested.
11. Defendant Joni W hite is a m ember of TDCJ’s DRC. W hite is su ed in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served with process at P.O. Box 99, Huntsville, TX 77342. Service is requested.
3

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12. Defendant Richard Lo pez is a m ember of TDCJ’s DRC. Lopez is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. He can be served with pro cess at 1060 Highway 190 Ea st, Huntsville, TX 77340. Service is requested.
13. Defendant Kevin Campbell is a member of TDCJ’s DRC. Campbell is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief.
14. Defendant Chris Bell is a m ember of TDCJ’s DRC. Bell is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief.
STATEMENT OF FACTS 15. Prison Legal News (“PLN”) publishes a m onthly 56-page legal inform ation magazine and distributes over fifty books dealing with the rights of incarcerated people. PLN’s publications provide infor mation about, e.g., court access, disciplin ary hearings, prison conditions, excessive force, m ail censorship, jail litigation, visitation, telephones, religious freedom, prison rape, and the death penalty. PLN has published the magazine continuously since 1990. PLN’s publicatio ns are core protected sp eech, which is not objectionab le on security or other grounds. 16. PLN is a d istributor for Women Behind Bars: The Cris is of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an inv estigative journalist whose work ha s appeared in publications like The Nation, Salon, The Utne Reader , and The Christian Science Monitor. She has won awards from the Society of Professional Journalists of Western Washington, New American Media, and the National Council on Crime and Delinquency. 17. Women Behind Bars was described as a “com prehensive and passionately argued indictment of the inhum an treatment of fe male prisoners … the sort of shocking expose too seldom seen in these media days of so m uch celebrity fluff” by the Seattle Post-Intelligencer.
4

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 5 of 11
Ms. Magazine said, “Like mirrors in a house of horrors , the women in Talvi's book reflect the distorted collective flaws of our society: violence, addiction, poverty, pervasive low self-esteem, and families trapped in chronic financial and emotional crises.” A former police chief said, “I've read few accounts of social injustice that have ar oused in me such intense feelings of sadness, shame, and rage. As a cop for thirty-four year s, I confess to having given only passing thought to what happened to wom en after they' re arrested and ultim ately sentenced to prison. I have been stripped of m y ignorance by Women Behind Bars. The agonizing expe riences of many of these women, described so eloquently by [Ms.] Talvi, will haunt me for the rest of my days.”
18. In December 2008, a prisoner at TDCJ ’s Hilltop Unit ordered a copy of Women Behind Bars from PLN. PLN placed the book in the mail, and it arrived at the Hilltop Unit mailroom.
19. At the Hilltop Unit m ailroom, Doe 1 refuse d to deliver the book to the prisoner. Doe 1 completed a TDCJ “Publication Review/Denial Notification” form informing the prisoner she could not receive Women Behind Bars because “a specific determination has been made that the publication is detrim ental to offenders’ rehabilitation, because it would encourage homosexual or deviant criminal behavior.” The notification suggested the book was censored by the mailroom because page 38 depicted “sex with a minor.” PLN did not receive a copy of the notice, or directions on how to appeal the m ailroom’s decision. TDCJ policy does not require providing publishers, like PLN, instructions on how to use the publication rejection appeal process.
20. Page 38 of Women Behind Bars reads: What is even m ore remarkable about [Tina] Thom as [a m edical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her a dult life. It m ight have been precisely that background that first propelled her to become an overach iever and attain a high level of professional success, but then came back to haunt her just as she had gotten to w here she wanted to go. The dark secret of her life was that she had
5

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 6 of 11
been forced to perform fellatio on her uncle when she was just four years old. Thomas explains that this unresolved trauma became “the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.” The remainder of the page discusses how this trauma caused Thomas to develop the drug addiction that resulted in her incarceration. The page contains no further discussion of “sex with a minor.” 21. Doe 1’s decision to censor Women Behind Bars was reviewed by Smith and the DRC. Campuzano, Smith, White, Lopez, Campbell and Bell, acting as the DRC, upheld Doe 1’s decision, and the prisoner wa s not allowed to receive Women Behind Bars . PLN was not informed of this decision, or given directions on how to pres ent information to the DRC during the review process. 22. After Campuzano, Smith, White, Lopez, Campbell and Bell, acting as the DRC, censor a bo ok, the boo k’s title is p laced on a list of “disapproved” books that is circulated to other TDCJ m ailrooms. W hen a “ disapproved” book arrives at a unit, it is sent to Sm ith for review. Smith reviews books “case-by-case” in conjunction with the DRC. 23. PLN sent two m ore copies of Women Behind Bars to prisoners in TDCJ’s Garza East Unit, in Beeville, Texas in Septem ber 2009. Defendant Brown censored the books, again relying on the “sex with a minor” passage on page 38. Brown failed to provide PLN with a copy of the “Pub lication Review/Denial Notification” or any inf ormation about how to contest the decision. 24. In March 2009, PLN sent a copy of another book, Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer to a prisoner incarcerated at TDCJ’s Allred Unit in Iowa Park, Texas. 25. Perpetual Prisoner Machine is a critique of the fo r-profit prison industry. The Rocky Mountain News called it “enlightening and frighten ing … a m oving and gripping social
6

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 7 of 11
commentary.” The San Diego Union Tribune said it was “a good assault on destructive social policy.” Professor Howard Zinn described it as “a bold and deep-probing analysis of our criminal justice system. It raises serious questions about crime and punishment which reflect not just on prisons, but on our for-profit driven society.”
26. TDCJ “disapproved” of Perpetual Prisoner Machine because page 45 discusses “rape.” P age 45, in fact, quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners.
27. TDCJ did not provide PLN with any inform ation about how to contest the decision to censor Perpetual Prisoner Machine or any opportunity to do so.
28. Defendants’ censorship regim e, as author ized and supervised by Livingston, is arbitrary, serves no legitimate penological purpose as applied to PLN’s publications, and violates the constitutional rights of publishe rs like PLN. Livingston moreover fails to ensure the regim e provides publishers constitutionally-required due process to con test decisions to ban the ir publications. TDCJ’s w ritten policies do no t permit censoring publications like Women Behind Bars and Perpetual Prisoner Machine for the reasons identified by Defendants.
29. It is likely Defendants will continue to censor the books PLN distributes, including Women Behind Bars and Perpetual Prisoner Machine, in the future without providing PLN due process.
30. Allowing PLN to distribute Women Behind Bars and Perpetual Prisoner Machine to TDCJ prisoners will not have any significant impact on TDCJ facilities or programs.
31. Readily available alternatives to censoring Women Behind Bars and Perpetual Prisoner Machine could, at de minimis cost, easily satisfy any leg itimate or significant interests of TDCJ without sacrificing the free speech an d expression rights of PLN and the prisoners in TDCJ custody.
7

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 8 of 11
32. The violations of PLN’s constitutional ri ghts have resulted in lost revenue from book sales, and loss of business rep utation, in addition to the loss of its valuable con stitutionally protected free speech and due process rights.
CAUSE OF ACTION I: FREEDOM OF SPEECH AND EXPRESSION 33. Defendants’ censorship of Women Behind Bars and Perpetual Prisoner Machine violates the free speech and exp ression rights of Prison L egal News secured by the First and Fourteenth Amendments to the Untied States Constitution. 34. Prison Legal News has a con stitutionally-protected liberty interest in communicating with incarcerated individuals. Th is right is clearly established under existing case law. 35. Defendants’ policy does not further any legitimate penological interest. Defendants Livingston, Doe, Smith, Brown, Campuzano, White, Lopez, Campbell and Bell acted wantonly, willfully and/or maliciously in violating PLN’s constitutional rights.
CAUSE OF ACTION II: DUE PROCESS OF LAW 36. Defendants’ actions banning Women Behind Bars and Perpetual Prisoner Machine did not provide Prison Legal Ne ws with individualized notice that its free s peech and expression rights are being violat ed. Defendants gave PLN no notice of the decisions to deny copies of Women Behind Bars and Perpetual Prisoner M achine to prisoners, or information about how to contest the decisions. 37. Prison Legal News has a right under the F ourteenth Amendment to receive notice and the opportunity to object when Defendants prevent its publication from reaching prisoners who have requested its publications. This right is clearly established under existing case law. 38. Defendants’ failure to p rovide notice to Prison Legal News that its pu blication was being censored does not furt her any legitimate penological interest. Defendants Livingston,
8

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 9 of 11
Doe, Smith, Brown, Campuzano, White, Lopez, Campbell and Bell acted wanto nly, willfully and/or maliciously in violating PLN’s constitutional rights.
DAMAGES 39. Plaintiff seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech and due process righ ts under the First and Fourteenth Am endments; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF 40. Plaintiff requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF 41. Plaintiff requests the C ourt grant appropr iate relief enjoining Defendants from continuing to violate its free speech and due pro cess rights. Plaintiff seeks perm anent injunctive relief requiring Defendants to pr ovide written notice to publishers and an opportunity to respond before censoring their publications, and requiring the adoption of specific guidelines delineating what materials may be delivered to prisoners though the mail, as well as any other appropriate injunctive relief.
ATTORNEYS’ FEES AND COSTS 42. Pursuant to 42 U.S.C. § 1988, Plaintiff is entitled to recover attorneys’ fees and costs.
PRAYER FOR RELIEF THEREFORE, Plaintiff requests the Court: A. Award punitive damages against all individual Defendants sued in their individual
capacities, as appropriate and allowed by law;
9

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 10 of 11
B. Award compensatory damages, including damages for lost revenues and dam age to business reputation, against all D efendants sued in their individual capacities, jointly and severally;
C. Award nominal damages against all Defendants sued in their individual capacities, jointly and severally;
D. Grant declaratory and injunctive relief under federal law against all Defendants, as set out in this Complaint;
E. Grant reasonable attorneys’ fees, litigation expenses and court costs; and, F. Grant all such other and further relief as appears reasonab le and just, to which
Plaintiff may be entitled. Dated: November 4, 2009.

Respectf

ully Submitted:

Texas S.
State S.
Texas S.
TEXAS 1405 Austin,

/s/ Scott Medlock Scott Medlock
Bar No. 24044783 Dist. No. 608457 Attorney-in-charge Lauren Izzo
Bar No. 24065482 Dist. No. 1002172 James C. Harrington
Bar No. 09048500 Dist. No. 4025
CIVIL RIGHTS PROJECT Montopolis Dr.
TX 78741 (512) 474-5073 (512) 474-0726 (Fax)
10

Case 2:09-cv-00296 Document 1 Filed in TXSD on 11/04/09 Page 11 of 11

Daniel Michigan

E. Manville Bar No. 39731
Pro-hac application pending

HUMAN P.O. Ferndale,

RIGHTS DEFENSE CENTER Box 20321
MI 48220 (248) 890-4720

ATTORNE

YS FOR PLAINTIFF

11

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS,
Plaintiff, VS.
BRAD LIVINGSTON, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-09-296 § § § §

ORDER

On this day came on to be considered Defendants’ Supplemental Motion to

Dismiss Based on Qualified Immunity (the “Motion”). (D.E. 43.) For the reasons stated

herein, Defendants’ Motion is GRANTED.

I. Jurisdiction The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§

1331 (federal question), 1343(a)(3) and (4) (civil rights).

II. Factual and Procedural Background

The factual background of this case is fully recounted in this Court’s December

17, 2009 Order. (D.E. 32.) Essentially, Plaintiff Prison Legal News (“PLN”) originally

brought suit to challenge Defendants’ decision to censor two publications that PLN

attempted to distribute to inmates, Women Behind Bars: The Crisis of Women in the U.S.

Prison System and Perpetual Prisoner Machine: How America Profits from Crime. PLN

states that it was not notified of the Texas Department of Criminal Justice’s (“TDCJ”)

censorship decision nor provided with an opportunity to appeal that decision. PLN

argues that TDCJ’s censorship regime serves no legitimate penological purpose as

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applied to PLN’s distributed publications, and violates PLN’s constitutional rights under the First Amendment and due process clause of the Fourteenth Amendment. (D.E. 1.) On February 16, 2010, the Court granted Plaintiff’s motion to file a First Amended Complaint. (D.E. 47.) In this Amended Complaint, Plaintiff identifies a John Doe Defendant as Michayel Smith, a mailroom representative at TDCJ’s Hilltop Unit. (D.E. 48 at 3; D.E. 45 at 2.) The Amended Complaint also alleges that the TDCJ censors four additional publications that PLN distributes, namely The Politics of Heroin: CIA Complicity in the Global Drug Trade, by Alfred W. McCoy; Soledad Brother: The Prison Letters of George Jackson, by George Jackson; Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti; and Prison Masculinities, by Don Sabo, Dr. Terry Kupers, and Willie London. (D.E. 48 at 7; D.E. 45 at 2.) PLN alleges that these books are on TDCJ’s permanent “disallowed” list, and that TDCJ did not notify PLN of its censorship decision with respect to any of the publications. (D.E. 48 at 7, 8-9.)
On December 17, 2009, the Court denied motions to dismiss for lack of standing filed by Defendants Livingston, White, Campuzano, Smith, Brown, and Lopez. (D.E. 32.) In that Order, the Court held that PLN had standing as a book distributor to bring a First Amendment challenge to Defendants’ actions in this case, and rejected Defendants’ statute of limitations argument with respect to the Perpetual Prisoner Machine publication. (D.E. 32 at 19.) The Court, however, deferred judgment on the issue of qualified immunity, raised by Defendants sued in their individual capacities, and ordered additional briefing on the subject. In compliance with this Order, Defendants Livingston (in his individual capacity), Smith, Brown, Campuzano, White, Lopez, Campbell, and Bell filed the Motion presently before the Court, seeking dismissal pursuant to Federal
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Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. 43.) Plaintiff PLN filed its Response on February 12, 2010. (D.E. 44.)1 III. Discussion
A. Motion to Dismiss Standard A motion to dismiss on the basis of qualified immunity is generally evaluated under Rule 12(b)(6) rather than Rule 12(b)(1). See Collins v. Ainsworth, 382 F.3d 529, 536 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 197 (5th Cir. 1996); Richard v. Capps, 2007 WL 2428928, at *2 n.6 (N.D. Tex. Aug. 28, 2007) (“[T]he Court notes that Rule 12(b)(1) is not a proper vehicle to assert dismissal on grounds of qualified immunity. The Fifth Circuit has held that the defense of qualified immunity should be analyzed under a Rule 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment.”) (citing Baker). When reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), all well-pleaded facts are accepted as true and are viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003) (“This Court construes the complaint liberally in favor of the plaintiff, and takes all facts pleaded in the complaint as true.”). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” 495 F.3d at 205 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely granted.” Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).
1 Defendants filed their Motion prior to the filing of the Amended Complaint in this action. The new facts alleged do not, however, affect the qualified immunity analysis in this case, as the same constitutional violations are alleged to have occurred in relation to the four new books PLN has identified.
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B. Qualified Immunity 1. General Principles
Government officials who perform “discretionary functions” are entitled to the defense of qualified immunity for suits in their individual capacity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Goodman v. Harris County, 571 F.3d 388, 396 (5th Cir. 2009) (“Qualified immunity is only applicable as a protective shield once a plaintiff has made out a claim against an official acting in his individual capacity.”). Qualified immunity applies to Section 1983 claims. See, e.g., Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (“[W]e have recognized two kinds of immunities under § 1983. Most public officials are entitled only to qualified immunity.”). The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. “Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection of qualified immunity applies regardless of whether the government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, __ U.S. __, 129 S. Ct. 808, 815 (2009) (internal quotation marks omitted). The Fifth Circuit has emphasized the broad protections of qualified immunity, stating that it “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” DePree v. Saunders, 588 F.3d 282, 288 (5th Cir. 2009).
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Because qualified immunity constitutes “an immunity from suit rather than a mere defense to liability it is effectively lost if a case is erroneously permitted to go to trial. [T]he ‘driving force’ behind creation of the qualified immunity doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery.” Pearson, 129 S. Ct. at 815 (internal citations and quotation marks omitted). Accordingly, the Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Id. (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
Until recently, the Supreme Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. “First, a court must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right. Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.” Id. at 815-16 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). The Court in Pearson v. Callahan, however, recently rejected this mandatory two step approach, stating instead, “[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. at 818. Thus, the Court is free to conduct the qualified immunity analysis in any order.
The question of whether a right is “clearly established” turns on “whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he
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confronted.” Mace v. City of Palestine, 333 F.3d 621, 623-24 (5th Cir. 2003). The Supreme Court has explained, “[t]he contours of that right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . but it is to say that in the light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); Murray v. Earle, 405 F.3d 278, 289 (5th Cir. 2005) (“Although there need not be prior case law directly on point for a constitutional right to be clearly established, the state of the law must be such that a reasonable officer would be on notice that his actions could violate a constitutional right.”).
Once a defendant has invoked the defense of qualified immunity, the burden shifts to plaintiff to show that the defense is inapplicable. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam). To defeat a qualified immunity claim, a plaintiff must: “1) state a claim for a violation of a constitutional right; 2) show that the constitutional right was established at the time of the actions at issue; and 3) demonstrate that [the defendant’s] conduct was objectively unreasonable in light of the legal rules clearly established at the time of [his or her] actions.” Decker v. Dunbar, 2009 WL 5095139, at *1 (5th Cir. Dec. 21, 2009) (citing Thomas v. City of Dallas, 175 F.3d 358, 363-64 (5th Cir. 1999)).
2. Qualified Immunity for TDCJ Defendants In this case, Defendants argue that their actions are consistent with the policies governing delivery of publications to inmates established by the Fifth Circuit in Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978), and the more general reasonableness standard
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enunciated by the Supreme Court in Thornburgh v. Abbott, 490 U.S. 401 (1989). Under these policies, both the sender of a book and the intended inmate recipient receive notice and an opportunity to appeal when a book is originally denied. Defendants contend that, as PLN was not the original sender of either Women Behind Bars or Perpetual Prisoner Machine, it was not entitled to notice and opportunity to appeal the TDCJ decision under existing law. Thus, the question is whether PLN, as an additional sender of a publication, has a clearly established right to notice and an opportunity to respond to an earlier denial and appeal. (D.E. 43 at 4-5.) When Perpetual Prisoner Machine was originally denied in 2000, Defendants claim that both the inmate and sender received the required notice and opportunity to appeal. The same is true of Women Behind Bars, which was originally denied in 2008, after it was sent by amazon.com. Because PLN was not the original sender of either publication, it was not entitled to receive notice and an opportunity to appeal. (D.E. 43 at 6.) To overcome qualified immunity, Defendants argue, PLN must show that each new sender of a book, and each new inmate recipient, has a clearly established right to receive notice of the book’s denial and opportunity to appeal. As no case has established that the TDCJ must allow additional appeals, PLN cannot meet its burden. (D.E. 43 at 6.) Defendants further state that, even if such a right does exist, it is not “clearly established.” As such, Defendants claim to be entitled to qualified immunity, and that they are entitled to dismissal of the suit against them in their individual capacities. (D.E. 43 at 6-7.) Defendant Livingston further argues that the suit against him in his individual capacity must be dismissed because, as the Executive Director of the TDCJ, he had no personal involvement in the actions alleged by PLN. PLN has thus failed to state a claim against Livingston in his individual capacity, and dismissal of this
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claim is proper, according to Livingston. (D.E. 43 at 7.)
In response, PLN first distinguishes between its First Amendment claims and its
due process claims. It argues that, as Defendants’ briefing does not address qualified
immunity with respect to the alleged violation of PLN’s free speech rights, Defendants
essentially concede that such violations took place and do not seek dismissal of these
claims. Rather, PLN reads Defendants’ Motion as urging only the dismissal of its due process claims on qualified immunity grounds. (D.E. 44 at 2.)2 With respect to those
claims, PLN refutes Defendants’ contention that present law only requires prison officials
to provide notice and an opportunity to appeal to the first person to send a censored book
to prisoners, not every subsequent sender. Rather, PLN contends that clearly established
constitutional law requires that all senders of a publication receive notice of a prison
decision to censor a publication and provide the sender with an opportunity to appeal that
decision. (D.E. 44 at 2, 4-8.) Courts have repeatedly recognized senders’ due process
rights, and have not limited those rights to only the first sender of a publication. (D.E. 44
at 4-5.) Even TDCJ policies, PLN contends, do not limit the right to appeal to the first
sender of a publication. (D.E. 44 at 6.)
The qualified immunity issue presents a close question in this case. As an initial
matter, Defendants are entitled to claim qualified immunity, as they are all TDCJ
employees performing discretionary functions, and are sued in their individual capacities.
2 Although Defendants request that the Court dismiss “all of Plaintiff’s claims against them in their individual capacities,” (D.E. 43 at 7) Defendants appear to argue that they are entitled to qualified immunity with respect to the due process claims only. (D.E. 43 at 5 (“[T]he proper inquiry for the qualified immunity analysis is whether additional senders of books have a ‘clearly established’ right to notice and opportunity to respond to an earlier denial and appeal.”).) Defendants do not make a separate argument that they are entitled to qualified immunity with respect to the First Amendment claims. This understanding is further confirmed by Defendants’ Amended Answer, in which they assert that due process rights for distributors are not “clearly established,” but make no such argument with respect to Plaintiff’s First Amendment claims. (D.E. 49 at 11-12.) The Court thus interprets Defendants’ qualified immunity argument as applying only to Plaintiff’s due process claims.
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Goodman, 571 F.3d at 396. Defendant Livingston is the executive director of the TDCJ;
Defendant Smith is the program specialist for TDCJ’s Mail System Coordinators Panel
and is responsible for reviewing censored publications; Defendant E. Brown is a
mailroom representative who is responsible for censoring publications at the Garza East
Unit; and Defendants Campuzano, White, Lopez, Campbell, and Bell are all members of TDCJ’s Director’s Review Committee (“DRC”). (D.E. 48 at 2-4.)3
There is no dispute that TDCJ policies acknowledge due process protections for
distributors, as they afford the sender of a publication notice and an opportunity to appeal
after that publication is initially denied. (D.E. 43 at 5.) The question before the Court is
whether subsequent senders of a publication, namely a distributor such as PLN, also have
a clearly established right to notice that its books have been rejected and to receive an
opportunity to appeal the TDCJ decision.
In Guajardo, the Fifth Circuit laid out the following procedures that prison
administrators must follow before they may reject a publication intended to be delivered
to an inmate:
Before delivery of a publication may be refused, prison administrators must review the particular issue of the publication in question and make a specific, factual determination that the publication is detrimental to prisoner rehabilitation because it would encourage deviate, criminal sexual behavior. Prisoners must, of course, be allowed to appeal that decision through proper administrative channels.
580 F.2d at 762 (internal citations omitted). Further, “[p]risoners must be given
notification of the refusal. An inmate receives sufficient review of the administration’s
3 Defendant Michayel Smith did not join in the Supplemental Motion to Dismiss, as her identity was not revealed until the Amended Complaint was filed on February 16, 2010. Ms. Smith is alleged to perform the same duties at the Hilltop Unit that Defendant E. Brown performs at the Garza East Unit, namely, “censoring publications as they arrive at the Hilltop mailroom before they are distributed to prisoners.” (D.E. 48 at 3.) Because Ms. Smith’s job function is very similar to that performed the other Defendants, the Court’s qualified immunity analysis is also applicable to Defendant Michayel Smith.
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decision not to permit the magazine if he receives (1) appropriate notice, (2) a reasonable opportunity to challenge the initial decision, and (3) an ultimate decision by a disinterested party not privy to the initial censorship decision.” Id. at n.10; see Thompson v. Patteson, 985 F.2d 202, 206-07 (5th Cir. 1994) (citing Guajardo). Guajardo must be read in light of the Supreme Court decision in Thornburgh, which held that prison regulations regarding censorship of publications must be “reasonably related to legitimate penological interests.” 490 U.S. at 404; Brewer v. Wilkinson, 3 F.3d 816, 824 (5th Cir. 1993).
The Supreme Court in Procunier v. Martinez recognized the rights of senders impacted by a prison official’s censorship decision to “be given a reasonable opportunity to protest that decision, and [to have] complaints be referred to a prison official other than the person who originally disapproved the correspondence.” Procunier v. Martinez, 416 U.S. 396, 418 (1978), overruled in part on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Since Procunier, courts have recognized that both inmates and senders of publications have a right to procedural due process when publications are rejected. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (“Other courts have recognized that both inmates and publishers have a right to procedural due process when publications are rejected. . . . We agree.”); Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001); Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996) (“We hold that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers.”); Prison Legal News v. Lindsey, No. 3:07-CV-0367-P, at 5 (N.D. Tex. June 18, 2007) (“[T]he right of a publisher to procedural due process in the event that its publication is disallowed by
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prison authorities appears equally clear.”).
The rules established in Guajardo and related cases have since been codified in
TDCJ policies. See Texas Dep’t of Crim. Justice, Uniform Offender Correspondence
Rules, BP-03.91 (July 13, 2007).4 Under these policies, “[i]f a publication is rejected,
the offender, the editor and/or the publisher shall be provided a written notice of the
disapproval and a statement of the reason within 72 hours of receipt of said publication
on a Publication Denial Form. Within the same time period, the offender, the editor
and/or the publisher shall be notified of the procedure for appeal.” Id. at 10. In such
circumstances, “[t]he offender, the editor or the publisher may appeal the rejection of the
publication through procedures provided by these Rules.” Id.5 The Offender Orientation
Handbook outlines a similar procedure, but provides that the notice and opportunity to
appeal are extended to “[t]he offender and the sender or addressee.” Tex. Dep’t of Crim.
Justice, Offender Orientation Handbook, Uniform Offender Correspondence Rules, Part
IV.A. (Nov. 2004). TDCJ regulations provide the following rules governing inspection
of publications:
All publications are subject to inspection by the MSCP [Mail System Coordinators Panel] in Huntsville and by unit staff. The MSCP has the authority to accept or reject a publication for content, subject to review by the DRC. Publications shall not be rejected solely because the publication advocates the legitimate use of the Offender Grievance Procedure, urges
4 The Court may take judicial notice of official TDCJ policies. See Fed. R. Evid. 201(b); see, e.g., Hutt v. Hofman, 2009 WL 2601927, at *7 (D. Vt. Aug. 18, 2009) (taking judicial notice of Vermont Department of Corrections regulations); Martin v. Hurtado, 2008 WL 4145683, at *5 (S.D. Cal. Sept. 3, 2008) (taking judicial notice of state prison operational procedure); Hosendove v. Myers, 2003 WL 22216809, at *1 (D. Conn. Sept. 19, 2003) (taking judicial notice of Department of Corrections Administrative Directives). 5 Defendants note that the TDCJ policies and procedures in fact provide for notice to senders of a publication, not just a publisher. (D.E. 43 at 5 n.2). This issue is also addressed in Defendant Jennifer Smith’s Affidavit. The Court does not, however, consider this Affidavit. While the “use of affidavits in consideration of a Rule 12(b)(1) motion to dismiss for lack of jurisdiction is proper and, unlike a Rule 12(b)(6) motion, does not require notice to the plaintiffs or change the motion into a motion for summary judgment,” Carmichael v. United Technologies Corp., 835 F.2d 109, 114 n.7 (5th Cir. 1988), qualified immunity is generally considered under Rule 12(b)(6), not Rule 12(b)(1). See Collins, 382 F.3d at 536. The Court need not and does not consider the Affidavit at this stage of the proceedings.
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offenders to contact public representatives about prison conditions or contains criticism of prison authorities.
Texas Dep’t of Crim. Justice, Uniform Offender Correspondence Rules, BP-03.91, at 12.
Relevant to this case, the regulations permit a publication to be rejected if “[a] specific
determination has been made that the publication is detrimental to offenders’ rehabilitation because it would encourage deviant criminal sexual behavior.” Id. at 10.6
The TDCJ procedures also govern appeals, and provide:
Any offender or other correspondent, or editor or publisher of a publication may appeal the rejection of any correspondence or publication. An offender or a correspondent may appeal the placement of the correspondent on the offender’s negative mailing list. An offender or a correspondent may apply to the DRC for reconsideration of the negative mailing list placement after the passage of six (6) months.
Texas Dep’t of Crim. Justice, Uniform Offender Correspondence Rules, BP-03.91, at 12.
The regulations further provide that “[a] written notice of appeal shall be sent to the DRC
within two (2) weeks of notification of rejection. Upon receipt of notification, the
correspondence or publication in question shall be sent to the DRC.” Id. Thereafter,
“[t]he DRC shall render its decision within two (2) weeks,” and “shall issue written
notification of the decision to the parties involved within 48 hours.” Id. at 13.
Existing precedent and TDCJ regulations thus clearly establish the due process
rights of initial distributors and inmate recipients. The relevant case law does not,
however, address whether such due process protections extend to subsequent distributors
or recipients. Guajardo addresses the due process rights of inmates, and does not
specifically address the rights of subsequent recipients, let alone distributors. Procunier
6 Other bases for rejection include, for example, the publication contains “information regarding the manufacture of explosives, weapons or drugs,” “material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots or security threat group activity,” or “sexually explicit images.” Texas Dep’t of Crim. Justice, Uniform Offender Correspondence Rules, BP-03.91, at 10.
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is also not directly on point, as it discusses procedural protections for those who send letters to inmates, not protections afforded to distributors of mass produced publications that may be sent to many different inmates over the course of months or years. Procunier, 416 U.S. at 418-19. The more recent lower court decisions discussed above come somewhat closer to recognizing the due process rights of subsequent distributors, but none clearly establish procedural protections for this group. Plaintiff has provided no other case law from which to conclude that the due process rights of subsequent distributors in this context is “clearly established,” nor has the Court discovered any such case law in its independent research. While subsequent senders and recipients perhaps should not be forced to accept another party’s ultimately ineffective challenge that may have occurred years or even decades earlier, the Court concludes that no existing case law clearly extends due process rights to these groups.
As noted previously, qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.” Saunders, 2009 WL 3769108, *2. For a constitutional right to be “clearly established,” it is not necessary for the “very action in question [to have] previously been held unlawful;” rather, it is only necessary that “in the light of pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640. Although the case law in this area might have indicated to Defendants that their practices violated the due process rights of subsequent distributors, the unlawfulness of their actions was not “apparent” in light of pre-existing law. Defendants’ actions were neither “plainly incompetent” nor constituted a knowing violation of the law.
In sum, the Court concludes that Defendants’ conduct did not “violate clearly
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established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818. Defendants are therefore entitled to qualified immunity with respect to Plaintiff’s due process claims, and the individual capacity claims against them must be dismissed. IV. Conclusion
For the reasons stated above, Defendants’ Supplemental Motion to Dismiss based on Qualified Immunity is GRANTED. (D.E. 43.) Plaintiff’s individual capacity claims for due process violations against Defendants Brad Livingston, Jennifer Smith, E. Brown, Gilbert Campuzano, Joni White, Richard Lopez, Kevin Campbell, Chris Bell and Michayel Smith7 are hereby DISMISSED. The following causes of action remain against Defendants:
(1) Defendant Brad Livingston (official capacity): a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) b. Count II: Due Process of Law (D.E. 48 ¶¶ 47-49)
(2) Defendant Brad Livingston (individual capacity): a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46)
(3) Defendant Jennifer Smith (individual capacity): a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46)
(4) Defendant E. Brown (individual capacity): a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46)
(5) Defendant Gilbert Campuzano (individual capacity):
7 While Defendant Michayel Smith did not join in the motion to dismiss, the qualified immunity analysis conducted herein extends equally to her. The Court will not require Defendant Smith to file a separate motion to dismiss on the basis of qualified immunity, and instead dismisses the individual capacity due process claim against her as well.
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a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) (6) Defendant Joni White (individual capacity):
a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) (7) Defendant Richard Lopez (individual capacity):
a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) (8) Defendant Kevin Campbell (individual capacity):
a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) (9) Defendant Chris Bell (individual capacity):
a. Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) (10) Defendant Michayel Smith (individual capacity):
Count I: Freedom of Speech and Expression (D.E. 48 ¶¶ 44-46) SIGNED and ORDERED this 21st day of April, 2010.
___________________________________ Janis Graham Jack
United States District Judge
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 Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 1 of 14

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS, a non-profit, §

Washington corporation,

§

§

Plaintiff

§

v.

§

§

§

BRAD LIVINGSTON, in his individual §

and official capacity as the executive

§

director of the Texas Department of

§

Criminal Justice, JENNIFER SMITH, E. §

BROWN, MICHAYEL SMITH,

§

GILBERT CAMPUZANO, JONI

§

WHITE, RICHARD LOPEZ, KEVIN §

CAMPBELL, and CHRIS BELL in their §

individual capacities

§

§

Defendants.

§

CAUSE NO. 2:09-cv-00296

AMENDED COMPLAINT

Plaintiff Prison Legal News respectfully files this Amended Complaint and will show:

STATEMENT OF CLAIM

1. Plaintiff Prison Legal News brings this civil rights action for redress of violations

of its rights to free speech and due process under the law, seeking injunctive and declaratory

relief, as well as nominal, compensatory and punitive damages against Defendants, as

appropriate.

2. Plaintiff complains Defendants have violated and continue to violate its

constitutional rights under color of law and in violation of the First and Fourteenth Amendments

of the United States Constitution.

Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 2 of 14
JURISDICTION AND VENUE 3. This action is brought pursuant to 42 U .S.C. §§ 1983 a nd 1988. J urisdiction is based on 28 U .S.C. §§ 1331, 1343(a)(3) and (4), and the aforementioned federal statutory and constitutional provisions. 4. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because the events complained of occurred within this district.
PARTIES 5. Plaintiff Prison Legal News (PLN) is a project of the Human Rights Defense Center, a Washington non-profit IRS section 501(c)(3) corporation. It has offices in Seattle, Washington and Brattleboro, Vermont. 6. Defendant Brad Livingston is the executive director of the Texas Department of Criminal Justice (TDCJ). A s such, Livingston is the commanding officer of all TDCJ correctional officers, guards, and TDCJ employees and contractors, and is responsible for their training, supervision, and conduct. B y law, he is responsible for protecting the constitutional rights of all persons and entities interacting with TDCJ, including PLN. At all relevant times, Livingston was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. H e is sued in his individual capacity for nominal, punitive, and compensatory damages, and his official capacity for prospective injunctive and declaratory relief. Livingston has been served and appeared in this action. 7. Defendant Jennifer Smith is the program specialist for TDCJ’s Mail System Coordinators Panel (MSCP). As such, Smith is responsible for review of publications censored by TDCJ mailroom staff. At all relevant times, Smith was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual
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capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Jennifer Smith has been served and appeared in this action.
8. Defendant E. Brown is a m ailroom representative at TDCJ’s Garza East Unit in Beeville, Texas. Brown is responsible for censoring publications as they arrive at the Garza East mailroom before they are distributed to prisoners. At all relevant times, Brown was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Brown has been served and appeared in this action.
9. Defendant Michayel Smith is a mailroom representative at TDCJ’s Hilltop Unit in Gatesville, Texas. Michayel Smith is responsible for censoring publications as they arrive at the Hilltop mailroom before they are distributed to prisoners. At all relevant times, Michayel Smith was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served at the Hilltop Unit, 1500 State School Road, Gatesville, TX 76598-2996. Service is requested.
10. Defendant Gilbert Campuzano is a m ember of TDCJ’s Director’s Review Committee (DRC). The DRC is composed of Jennifer Smith, Campuzano and five other TDCJ administrators, and reviews decisions to censor publications made by the mailroom staff. Campuzano is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Campuzano has been served and appeared in this action.
11. Defendant Joni White is a m ember of TDCJ’s DRC. White is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. White has been served and appeared in this action.
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 4 of 14
12. Defendant Richard Lopez is a member of TDCJ’s DRC. Lopez is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Lopez has been served and appeared in this action.
13. Defendant Kevin Campbell is a member of TDCJ’s DRC. Campbell is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Campbell has been served and appeared in this action.
14. Defendant Chris Bell is a member of TDCJ’s DRC. Bell is sued in his individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Bell has been served and appeared in this action.
STATEMENT OF FACTS 15. Prison Legal News (“PLN”) publishes a monthly, 56-page legal information magazine and distributes over fifty books dealing with the rights of incarcerated people. PLN’s publications provide information about, e.g., court access, disciplinary hearings, prison conditions, excessive force, mail censorship, jail litigation, visitation, telephones, religious freedom, prison rape, and the death penalty. PLN has published the magazine continuously since 1990. P LN’s publications are core protected speech, which is not objectionable on s ecurity or other grounds. 16. PLN is a distributor for Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an investigative journalist whose work has appeared in publications like The Nation, Salon, The Utne Reader, and The Christian Science Monitor. S he has won awards from the Society of Professional Journalists of Western Washington, New American Media, and the National Council on Crime and Delinquency. 17. Women Behind Bars was described as a “comprehensive and passionately argued indictment of the inhuman treatment of female prisoners … t he sort of shocking expose too
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 5 of 14
seldom seen in these media days of so much celebrity fluff” by the Seattle Post-Intelligencer. Ms. Magazine said, “Like mirrors in a house of horrors, the women in Talvi's book reflect the distorted collective flaws of our society: violence, addiction, poverty, pervasive low self-esteem, and families trapped in chronic financial and emotional crises.” A former police chief said, “I've read few accounts of social injustice that have aroused in me such intense feelings of sadness, shame, and rage. As a cop for thirty-four years, I confess to having given only passing thought to what happened to women after they're arrested and ultimately sentenced to prison. I have been stripped of my ignorance by Women Behind Bars. The agonizing experiences of many of these women, described so eloquently by [Ms.] Talvi, will haunt me for the rest of my days.”
18. In December 2008, a prisoner at TDCJ’s Hilltop Unit ordered a copy of Women Behind Bars from PLN. P LN placed the book in the mail, and it arrived at the Hilltop Unit mailroom.
19. At the Hilltop Unit mailroom, Michayel Smith refused to deliver the book to the prisoner. Michayel Smith completed a TDCJ “Publication Review/Denial Notification” form informing the prisoner she could not receive Women Behind Bars because “a specific determination has been made that the publication is detrimental to offenders’ rehabilitation, because it would encourage homosexual or deviant criminal behavior.” T he notification suggested the book was censored by the mailroom because page 38 depicted “sex with a minor.” PLN did not receive a copy of the notice, or directions on how to appeal the mailroom’s decision. TDCJ policy does not require providing book distributors, like PLN, instructions on how to use the publication rejection appeal process.
20. Page 38 of Women Behind Bars reads: What is even more remarkable about [Tina] Thomas [a medical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her adult life. It might have been precisely that background that first propelled her to become an overachiever and attain a
5

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high level of professional success, but then came back to haunt her just as she had gotten to where she wanted to go. T he dark secret of her life was that she had been forced to perform fellatio on he r uncle when she was just four years old. Thomas explains that this unresolved trauma became “the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.” The remainder of the page discusses how this trauma caused Thomas to develop the drug addiction that resulted in her incarceration. The page contains no further discussion of “sex with a minor.” 21. Michayel Smith’s decision to censor Women Behind Bars was reviewed by Jennifer Smith and the DRC when the prisoner appealed. C ampuzano, Jennifer Smith, White, Lopez, Campbell and Bell, acting as the DRC, upheld Michayel Smith’s decision, and the prisoner was not allowed to receive Women Behind Bars. PLN was not informed of this decision, or given directions on how to present information to the DRC during the review process. 22. After Campuzano, Jennifer Smith, White, Lopez, Campbell and Bell, acting as the DRC, censor a book, the book’s title is placed on a list of “disapproved” books that is circulated to other TDCJ mailrooms. When a book has been “disapproved” by the DRC it will never be reviewed again. 23. PLN sent two more copies of Women Behind Bars to prisoners in TDCJ’s Garza East Unit, in Beeville, Texas in September 2009. D efendant Brown censored the books, again relying on the “sex with a minor” passage on page 38. Brown failed to provide PLN with a copy of the “Publication Review/Denial Notification” or any information about how to contest the decision. 24. In March 2009, P LN sent a copy of another book, Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer to a prisoner incarcerated at TDCJ’s Allred Unit in Iowa Park, Texas.
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25. Perpetual Prisoner Machine is a critique of the for-profit prison industry. T he Rocky Mountain News called it “enlightening and frightening … a moving and gripping social commentary.” The San Diego Union Tribune said it was “a good assault on destructive social policy.” Professor Howard Zinn described it as “a bold and deep-probing analysis of our criminal justice system. It raises serious questions about crime and punishment which reflect not just on prisons, but on our for-profit driven society.”
26. TDCJ, through the DRC, “disapproves” of Perpetual Prisoner Machine because page 45 discusses “rape.” Page 45, in fact, quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners.
27. TDCJ, through the DRC, did not provide PLN with any information about how to contest the decision to censor Perpetual Prisoner Machine or any opportunity to do so.
28. The DRC Defendants and Livingston censor four other books PLN distributes, The Politics of Heroin: CIA Complicity in the Global Drug Trade, by Prof. Alfred W. McCoy; Soledad Brother: The Prison Letters of George Jackson, by George Jackson; Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti; and Prison Masculinities, by Don Sabo, Dr. Terry Kupers, and Willie London. These books are all on TDCJ’s permanent “disallowed” list.
29. Politics of Heroin is by a professor of history at the University of Wisconsin. Prof. McCoy is a leading authority on t he history of drug trafficking in Southeast Asia. H is recent book on covert operations, A Question of Torture: CIA Interrogations from the Cold War to the War on Terror, was the basis for Taxi to the Darkside, the 2008 Academy Award winning film for Best Documentary. The New York Times Review of Books described Politics of Heroin
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as “a fascinating, meticulous unraveling of the byzantine complexities of the drug trade” and “a pioneering book.”
30. The DRC did not provide PLN notice TDCJ was censoring Politics of Heroin before filing this litigation, and PLN has no knowledge why TDCJ censors it. PLN has no knowledge of when TDCJ first censored Politics of Heroin.
31. Soledad Brother is a co llection of letters by George Jackson, a member of the Black Panthers, who was imprisoned in California’s Soledad prison in the 1960s. The New York Times called Jackson “a talented writer, a sensitive man, a potential leader and political thinker of great persuasiveness.” Ebony called the book a “penetrating and scathing” criticism of American life.
32. The DRC did not provide PLN notice TDCJ was censoring Soledad Brother before filing this litigation, and PLN has no knowledge why TDCJ censors it. PLN has no knowledge of when TDCJ first censored Soledad Brother.
33. Lockdown America is a history of the prison expansion that began in America in the 1970s. The Washington Post praised it as “exhaustively documented” and “deserv[ing] [of] a full hearing from anyone serious about ending the often horrific realities of the criminal justice system.” The Christian Science Monitor described it as an “unflinching look at what our nation has become” and noted it “cannot fail to generate serious thought about issues we prefer to lock away in darkness.”
34. The DRC did not provide PLN notice TDCJ was censoring Lockdown America before filing this litigation, and PLN has no knowledge why TDCJ censors it. PLN has no knowledge of when TDCJ first censored Lockdown America.
35. Prison Masculinities is a collection of essays about prison conditions by distinguished authors. O ne of the editors, Dr. Terry Kupers, is a psychiatrist and has been
8

Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 9 of 14
recognized as an expert witness in over a dozen federal prison conditions cases, and is a consultant to the U.S. Department of Justice, Human Rights Watch, and Amnesty International. Other contributors to the book i nclude the former directors of noted prison-reform non-profits, Stop Prisoner Rape, the Prison Law Office, and the Sentencing Project; and professors at the University of Southern California, Bowling Green State University, the University of Missouri – Kansas City.
36. Prison Masculinities was censored at TDCJ’s Powledge Unit in 2009 because “pages: 128-131 – contain rape” and “pages 194 + 222 – contain racial material.” Passages on pages 128-131 do discuss prisoner rape. A prisoner describes how he was “humiliated telling anyone about” being sexually assaulted, and how he underwent “torture scenes” at the hands of fellow prisoners. Page 194 is from an essay by Dr. Kupers where he discusses a guard calling a prisoner a “damn nigger” before assaulting the inmate. Page 222 is from an essay about support groups in prison, and discusses a conv ersation prisoners had about personal responsibility. “James Jackson, forty-five, who has already done seventeen and a half years of a twenty-year-tolife sentence, nods his head in agreement. Jackson continues, ‘Black people can get on the radio and use the words ‘niggers’ and ‘bitch.’ To me, that’s serious. If you think white people are going to stop us from calling us niggers and bitches, you’re crazy. We’ve got to stop degrading ourselves.”
37. TDCJ did not notify PLN Prison Masculinities was being censored. PLN learned of the censorship when the prisoner instructed TDCJ to send the book and censorship notice to PLN’s counsel.
38. Defendants’ censorship regime, as authorized and supervised by Livingston, is arbitrary, serves no legitimate penological purpose as applied to PLN’s publications, and violates the constitutional rights of book distributors like PLN. Livingston moreover fails to ensure the
9

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regime provides distributors constitutionally-required due process to contest decisions to permanently ban their publications. TDCJ’s written policies do not permit censoring publications like Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother¸ Lockdown America, or Prison Masculinities for the reasons identified by Defendants.
39. Livingston’s deliberately indifferent failure to supervise or train his subordinates results in violations of PLN’s constitutional rights. The practices of Livingston’s subordinates, of which he is aware and deliberately indifferent to, are contrary to clearly established free speech and due process protections.
40. It is likely Defendants will continue to censor the books PLN distributes, including Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities, in the future without providing PLN due process.
41. Allowing PLN to distribute Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities to TDCJ prisoners will not have any significant impact on TDCJ facilities or programs.
42. Readily available alternatives to censoring Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities could, at de minimis cost, easily satisfy any legitimate or significant interests of TDCJ without sacrificing the free speech and expression rights of PLN and the prisoners in TDCJ custody.
43. The violations of PLN’s constitutional rights have resulted in lost revenue from book sales, and loss of business reputation, in addition to the loss of its valuable constitutionally protected free speech and due process rights.
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 11 of 14
CAUSE OF ACTION I: FREEDOM OF SPEECH AND EXPRESSION 44. Defendants’ censorship of Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities violates the free speech and expression rights of Prison Legal News secured by the First and Fourteenth Amendments to the Untied States Constitution. 45. Prison Legal News has a constitutionally-protected liberty interest in communicating with incarcerated individuals. This right is clearly established under existing case law. 46. Defendants’ policy does not further any legitimate penological interest. Defendants Livingston, Michayel Smith, Jennifer Smith, Brown, Campuzano, White, Lopez, Campbell and Bell acted wantonly, willfully and/or maliciously in violating PLN’s constitutional rights.
CAUSE OF ACTION II: DUE PROCESS OF LAW 47. Defendants’ actions banning Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities did not provide Prison Legal News with individualized notice that its free speech and expression rights are being violated. Defendants gave PLN no notice of the decisions to deny copies of Women Behind Bars, Perpetual Prisoner Machine, Politics of Heroin, Soledad Brother, Lockdown America and Prison Masculinities to prisoners, or information about how to contest the decisions. 48. Prison Legal News has a right under the Fourteenth Amendment to receive notice and the opportunity to object when Defendants prevent its publication from reaching prisoners who have requested its publications. This right is clearly established under existing case law.
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 12 of 14
49. Defendants’ failure to provide notice to Prison Legal News that its books were being censored does not further any legitimate penological interest. Defendants Livingston, Michayel Smith, Jennifer Smith, Brown, Campuzano, White, Lopez, Campbell and Bell acted wantonly, willfully and/or maliciously in violating PLN’s constitutional rights.
DAMAGES 50. Plaintiff seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech and due process rights under the First and Fourteenth Amendments; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF 51. Plaintiff requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF 52. Plaintiff requests the Court grant appropriate relief enjoining Defendants from continuing to violate its free speech and due process rights. Plaintiff seeks permanent injunctive relief requiring Defendants to provide written notice to publishers and an opportunity to respond before censoring their publications, and requiring the adoption of specific guidelines delineating what materials may be delivered to prisoners though the mail, as well as any other appropriate injunctive relief.
ATTORNEYS’ FEES AND COSTS 53. Pursuant to 42 U.S.C. § 1988, Plaintiff is entitled to recover attorneys’ fees and costs.
PRAYER FOR RELIEF THEREFORE, Plaintiff requests the Court: A. Award punitive damages against all individual Defendants sued in their individual
capacities, as appropriate and allowed by law;
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 13 of 14
B. Award compensatory damages, including damages for lost revenues and damage
to business reputation, against all Defendants sued in their individual capacities,
jointly and severally;
C. Award nominal damages against all Defendants sued in their individual
capacities, jointly and severally;
D. Grant declaratory and injunctive relief under federal law against all Defendants,
as set out in this Complaint;
E. Grant reasonable attorneys’ fees, litigation expenses and court costs; and,
F. Grant all such other and further relief as appears reasonable and just, to which
Plaintiff may be entitled.
Dated: February 12, 2010.
Respectfully Submitted:
/s/ Scott Medlock Scott Medlock Texas Bar No. 24044783 S. Dist. No. 608457 Attorney-in-charge Lauren Izzo State Bar No. 24065482 S. Dist. No. 1002172 James C. Harrington Texas Bar No. 09048500 S. Dist. No. 4025
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741
(512) 474-5073 (512) 474-0726 (Fax)
Daniel E. Manville Michigan Bar No. 39731 Admitted pro hac vice
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Case 2:09-cv-00296 Document 48 Filed in TXSD on 02/16/10 Page 14 of 14 HUMAN RIGHTS DEFENSE CENTER P.O. Box 20321 Ferndale, MI 48220 (248) 890-4720 ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE A true copy of this document was sent to Assistant Attorney General of Texas, Jennifer Wells, P.O. Box 12548, C apitol Station, Austin, TX, 78711, via the Court’s electronic filing system pursuant to Local Rule LR5.1.
/s/ Scott Medlock Scott Medlock
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS,
Plaintiff, VS.
BRAD LIVINGSTON, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-09-296 § § § §

ORDER

On this day came on to be considered (1) Plaintiff’s Motion for Summary

Judgment (D.E. 75); and (2) Defendants’ Motion for Summary Judgment (D.E. 82). For

the reasons stated herein, Plaintiff’s Motion for Summary Judgment is DENIED and

Defendants’ Motion for Summary Judgment is GRANTED.

I. Jurisdiction

The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§

1331 (federal question), 1343(a)(3) and (4) (civil rights).

II. Factual Background

Plaintiff Prison Legal News (“Plaintiff” or “PLN”) is self-described as a “small,

nationwide non-profit, whose goal is to educate prisoners and the general public about

prison conditions and the rights of incarcerated people.” (D.E. 75 at 2; D.E. 75-1 at 5.)

PLN publishes a monthly newsletter and distributes to inmates approximately fifty

different books related to prisoner’s rights issues. (D.E. 75 at 2.) According to its

founder, “[s]ending books and the [PLN] magazine through the mail to prisoners is

essential to accomplishing PLN’s mission. PLN relies on sending the books and

magazines through the mail to communicate with prisoners, and cannot communicate

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with prisoners without being able to use the mail.” (D.E. 75-1 at 5.) Among those prisoners with whom PLN communicates are those within facilities run by the Texas Department of Criminal Justice (“TDCJ”), a 96 unit system that incarcerates approximately 139,000 offenders. (D.E. 82-2 at 4.)
On November 4, 2009, PLN filed this lawsuit against Defendant Brad Livingston, director of the TDCJ, and several other TDCJ officials, claiming that Defendants violated PLN’s First Amendment and due process rights when it censored1 two books, Women Behind Bars and Perpetual Prisoner Machine, which PLN sought to send to prisoners at TDCJ facilities. (D.E. 1.)
Since filing suit, PLN has twice amended its complaint, most recently on July 30, 2010. (D.E. 67.) Named as defendants in PLN’s Second Amended Complaint are Brad Livingston, Jennifer Smith (program specialist for TDCJ’s Mail System Coordinators Panel), Ramona Creek (mailroom clerk at the TDCJ Garza East Unit), and Sue Weeks (mailroom representative at the TDCJ Hilltop Unit). Livingston is sued solely in his official capacity, whereas Smith, Creek, and Weeks are sued solely in their individual capacities. (D.E. 67 at 1-3.) In its Second Amended Complaint, PLN alleged that Defendants censored the following five books that it attempted to distribute to prisoners at TDCJ facilities: Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi; Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer; Soledad Brother: The Prisoner Letters of George Jackson, by George Jackson; Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti; and Prison Masculinities, by Don Sabo, Dr. Terry Kupers, and Willie London.
1 The Court understands that Defendants object to use of the word “censor” in this context, as “misleading, incomplete, vague, overbroad, and confusing.” (See D.E. 75-1 at 18.) The Court uses this term simply as an alternative to “disapprove” or “deny,” without any negative connotation.
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(D.E. 67 at 3-9.) PLN states that it was never notified that the books at issue were disapproved by the TDCJ. (D.E. 67.) Rather, PLN found out that its books were disapproved when the books were returned in the mail, during the discovery process, or upon receipt of an e-mail from the author. (D.E. 75-1 at 7-8.)
The reasons for disapproving these books vary, and may be briefly summarized as follows:
(1) Women Behind Bars: This book is described as a “comprehensive and passionately argued indictment of the inhuman treatment of female prisoners.” (D.E. 67 at 4.) PLN states that TDCJ disapproved the publication because page 38 depicted “sex with a minor.”2 It was originally denied in April 2008, and subsequently denied in November 2008, when it was sent to inmate Lou Johnson at the TDCJ Hilltop Unit. (D.E. 67 at 4-5; see also D.E. 75 at 6-10; D.E. 75-1 at 20-21, 41; D.E. 82-12.) Lou Johnson appealed the denial, but the decision was upheld on December 3, 2008. (D.E. 82-2 at 13.) Women Behind Bars was denied to other inmates on other occasions as well. (D.E. 82-2 at 15.) On July 30, 2010, Defendant Smith re-reviewed Women Behind Bars and determined that it should be approved. (D.E. 82-2 at 11.)
(2) Perpetual Prisoner Machine: This publication is described as “a critique of the for-profit prison industry.” (D.E. 67 at 6.) PLN states that this publication was ordered
2 The relevant passage read as follows: What is even more remarkable about [Tina] Thomas [a medical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her adult life. It might have been precisely that background that first propelled her to become an overachiever and attain a high level of professional success, but then came back to haunt her just as she had gotten to where she wanted to go. The dark secret of her life was that she had been forced to perform fellatio on her uncle when she was just four years old. Thomas explains that this unresolved trauma became “the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.”
(D.E. 75-3 at 21.)
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by a prisoner at TDCJ’s Allred Unit, and was denied because “page 45 discusses ‘rape.’”
(D.E. 75-3 at 77.) This book was originally denied on February 15, 2000, and
subsequently denied on February 25, 2009 at the Allred Unit. (D.E. 67 at 6; see also D.E.
75 at 10-13; D.E. 75-1 at 22; D.E. 82-2 at 15, 16 D.E. 82-16.)3
(3) Soledad Brother: This book is “a collection of letters by George Jackson, a
member of the Black Panthers, who was imprisoned in California’s Soledad prison in the
1960s.” (D.E. 67 at 6.) TDCJ disapproved this book because “page xxiii is ‘racial.’”
(D.E. 75-4 at 9.) Other denials note that the “entire publication advocates overthrow of
prisons by riots and revolt.” (D.E. 82-26 at 2, 4, 7.) The book was initially denied at the
Connally Unit on August 10, 2005. (D.E. 67 at 7; see also D.E. 75 at 13-14; D.E. 75-1 at
3 The relevant passages read as follows:
I was laying in my bed when seven or eight inmates came to my bed, pulled the blankets off me, put it on the floor and told me to pull my pants down and lay face down on the blanked. I said, “No,” and was punched in the face by one of the inmates. The inmate that punched me stated if I did not get on the floor the other inmates would gang up on me.
I got on the floor and my pants and shorts were pulled off. Two inmates spread and held my legs apart while two more inmates held my hands in front of me. While I was being buggered from behind another inmate would make me suck his penis. This continued until all the inmates had attacked me and I heard one of them say it was 1:30 AM, so let’s go to bed. They put me on the bed, covered me with the blanket and one of them patted me on the behind saying, “Good boy, we will see you again tomorrow night.”
A second passage reads:
I was in the cell at 1801 Vine when four Negro boys started bothering me for not having underwear on. Then when we got on the Sheriff’s van and started moving they told everyone that I didn’t have on underwear . . . they started moving close to me. One of them touched me and I told them to please stop. All of a sudden a coat was thrown over my face and when I tried to pull it off I was viciously punched in the face for around ten minutes. . . . They ripped my pants from me while five or six of them held me down and took turns fucking me. . . . My insides feel sore and my body hurts, my head hurts, and I feel sick in the stomach. Each time they stopped I tried to call for help but they put their hands over my mouth . . .
(D.E. 75-3 at 100.)
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23.)4 Defendant Smith subsequently decided to remove Soledad Brother from the denied
book list in July 2010. (D.E. 82-2 at 17.)
(4) Lockdown America: This book is described as “a history of the prison
expansion that began in America in the 1970s.” (D.E. 67 at 7.) TDCJ disapproved this
book because “page 206 is ‘racial.’” (D.E. 75-4 at 50.) This title was originally denied
on June 5, 2000. (D.E. 67 at 7-8; see also D.E. 75 at 15-16; D.E. 75-1 at 23; D.E. 82-2 at
17.)5
(5) Prison Masculinities: This publication is a “collection of essays about prison
conditions by distinguished authors.” (D.E. 67 at 8.) It was disapproved because “pages
128-131 contain rape” and “pages 194 + 222 – contain racial material.” (D.E. 75-4 at
91.) Prison Masculinities was originally denied on May 24, 2001, and subsequently
denied on December 12, 2009 at the Powledge Unit. (D.E. 67 at 8; see also D.E. 75 at
16-18; D.E. 75-1 at 22; D.E. 82-2 at 17; D.E. 82-23 at 2.)6
4 The relevant passage provides:
Race is more times than not the easy answer to a problem. Among people of color in the United States, the quick fix, “blame it on whitey” mentality has become so prevalent that it shortcuts thinking. Conversely, stereotypes of minorities act as simple-minded tools of divisiveness and oppression. George addressed these issues in prison, setting a model for the outside as well: “I’m always telling the brothers some of those whites are willing to work with us against the pigs. All they got to do is stop talking honky. When the races start fighting, all you have is one maniac group against another.
(D.E. 75-4 at 24.) 5 The relevant passage provides: “Another group of screws at the California Institution for Men at Chino called itself SPONGE, a disgusting acronym for the equally disgusting name, ‘Society for the Prevention of Niggers Getting Everything.’” (D.E. 75-4 at 79.) 6 The relevant passages in this book discuss an inmate being “raped and beaten by Blacks as a punishment for permitting [himself] to be raped by Whites,” and that “getting fucked by a tender, gentle jock was better than the vicious gang-bangs and there was pride in making my man happy in bed . . . The s & m freaks . . . always scared the hell out of me and were the worse [sic] of all the jocks in any joint I was in.” The passages discuss repeated sexual assaults and rapes of an inmate who was a teenager at the time, some of which are quite graphic. (D.E. 75-5 at 5-9.) The “racial” material on pages 194 discusses officers “calling [an inmate] a ‘nigger’ as the other guards laugh . . . .,” and page 222 contains the following passage: “Black people can get on the radio and use the words ‘nigger’ and ‘bitch.’ To me, that’s serious. If you think
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PLN claims that, for all publications at issue except Soledad Brother, it has
encountered no instances of censorship with respect to those titles at any other
correctional facility in the United States. (D.E. 75-1 at 6-7.)
The TDCJ book review process begins when a book arrives at a TDCJ mailroom.
There, a mailroom employee first checks the TDCJ database to determine whether the
book has previously been approved or rejected. If the book has been previously rejected,
as stated in the database, mailroom staff will not re-review the book; rather, they will
simply notify the offender that the book is not allowed. (D.E. 82-2 at 8-9.) If the book
has not been previously considered, the employee begins to review the book. (D.E. 75-1
at 39; see also D.E. 75-1 at 50; D.E. 82-2 at 7; D.E. 82-4.) TDCJ policy permits
disapproval of a book when:
(1) it contains contraband that cannot be removed;
(2) it contains information regarding the manufacture of explosives, weapons, or drugs;
(3) it contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or security threat group activity;
(4) a specific determination has been made that the publication is detrimental to offenders’ rehabilitation because it would encourage deviant criminal sexual behavior;
(5) it contains material on the setting up and operation of criminal schemes; or (6) it contains sexually explicit images.7
white people are going to stop us from calling us niggers and bitches, you’re crazy. We’ve got to stop degrading ourselves.” (D.E. 75-5 at 21.) 7 This last section also provides: “Publications shall not be prohibited solely because the publication displays naked or partially covered buttocks. Subject to review by the MSCP and on a case-by-case basis, publications constituting educational, medical/scientific or artistic materials, including but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic or artistic reference material depicting historical, modern and/or post modern era art, may be permitted.” (D.E. 75-1 at 106.)
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(D.E. 75-1 at 105-106 (TDCJ Board Policy BP-03.91)). With respect to the fourth category, “deviant criminal sexual behavior,”
Defendant Smith testified that there is no precise definition of which she was aware to apply in this category, and that there are various “rules of thumb” for denying certain nude artwork. (D.E. 75-1 at 75, 78.) For example, art “that has got more of a pornographic edge to it,” as opposed to “historical art that’s everywhere in museums,” may be denied, as would certain naked pictures of children in, for example, National Geographic. (D.E. 75-1 at 79.) Defendant Smith testified during her deposition that “if a mailroom clerk or mailroom supervisor feels that something needs to be denied, [she] always tell[s] them to err on the side of caution. Go ahead and deny it and give that offender the right to appeal . . . and let someone else take a look at it instead of putting the burden on them to make that sort of decision.” (D.E. 75-1 at 74.) Once a problematic passage is found, TDCJ staff does “not attempt to determine whether the remainder of the book contains other content which is not in violation of policy or which would ‘outweigh’ this reference.” Instead, the entire publication is denied based upon the one passage at issue. (D.E. 82-2 at 13.)
Once the decision is made to disapprove a book at the unit level, the employee completes a “Publication Review/Denial” form and sends the form to the prisoner who had ordered the book. (D.E. 75-1 at 40; D.E. 75-1 at 106 (BP-03.91, describing notice procedures).) The prisoner may then appeal the decision to the Director’s Review Committee (“DRC”) if the decision as to that particular book has not been previously appealed. The DRC delegates its review authority to the Mail Systems Coordinators Panel (“MSCP”), which is composed of two TDCJ employees, including Defendant
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Smith, the MSCP chair. Smith states that she reviewed “8-9 books per day that come to [her] office on appeal, in addition to [her] other duties.” (D.E. 82-2 at 19.) If the MSCP members cannot reach a unanimous decision as to a particular book, the book is forwarded to the DRC as a whole for further review. None of the books at issue in this litigation reached the full DRC. Once the DRC/MSCP makes a decision, there is no further appeal, at least absent republication of the book without the material that led to the initial disapproval. (D.E. 75 at 4-5; D.E. 75-1 at 21, 40; D.E. 75-1 at 67; D.E. 75-1 at 108-109 (BP-03.91, describing appeal procedures); D.E. 82-2 at 8, 11; D.E. 90-1 at 34; see generally D.E. 82-3.)
The prior TDCJ policy required only that notice be sent to the prisoner, not the sender of the book, unless the sender was also the editor and/or publisher. This policy was changed in February 2010, to include notice to the sender. (D.E. 75 at 5 n. 33; D.E. 75-1 at 70; D.E. 75-1 at 120 (B.P 03.91, Feb. 2010 revision); D.E. 82-11.) PLN contends that, in practice, the TDCJ sends a rejection form to the sender only when the DRC/MSCP has not already censored a book after an appeal. If the book has already been disapproved by DRC/MSCP, there is no notice and no appeal. (D.E. 75 at 6.) PLN states that DRC/MSCP receives fewer than ten appeals from senders each year; the vast majority of appeals originate from prisoners. (D.E. 75 at 6.) III. Procedural Background
In its Second Amended Complaint, filed on July 30, 2010, PLN brought claims for violation of its First Amendment and due process rights, and sought declaratory relief, injunctive relief, damages, and attorney’s fees. (D.E. 67 at 10-11.) The Court has since
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dismissed Plaintiff’s due process claims against Defendants in their individual capacities
on qualified immunity grounds. (D.E. 53 at 14; D.E. 66.)
Plaintiff and Defendants filed cross-motions for summary judgment on October
15, 2010. (D.E. 75; 82.)8 The parties filed their respective responses on November 8,
2010. (D.E. 89; 90.)9
Defendants argue various bases for dismissal of this action. Defendants contend
that Plaintiff’s claims must fail because (1) PLN is not the publisher of any of the books
at issue (and thus lacks First Amendment rights), (2) even if PLN has First Amendment
rights, it cannot demonstrate that any inmate requested certain books that PLN sent (and
lacks a First Amendment right to send unsolicited books to inmates), and (3) even if PLN
can demonstrate that inmates requested the books at issue, PLN cannot overcome the
considerable deference to which prison administrators’ disapproval decisions are entitled.
(D.E. 82.) Defendants also argue that Smith, Weeks, and Creek are entitled to qualified
immunity, that Creek is entitled to dismissal for lack of personal involvement, and that
punitive damages are unwarranted. (D.E. 20-24.)
8 Defendants’ Motion for Summary Judgment was initially filed on October 15, 2010, but struck for procedural reasons. (D.E. 77.) It was properly refiled on October 18, 2010. (D.E. 82.) 9 Defendants have also filed, inter alia, a Motion to Strike (D.E. 87). Defendants seek to strike (1) Exhibits 8(a)-(c) (a purported TDCJ approved/denied book list), (2) Exhibits 12 and 32 (related to Women Behind Bars), (3) Exhibit 18 (a second purported TDCJ approved book list), (4) Exhibit 21 (preface to Blood in my Eye), (5) Exhibits 24 and 27 (declarations by Christian Parenti and Terry Kupers), (6) Exhibit 30 (declaration of Ron McAndrew), and (7) Exhibit 31 (BOP policies). The Court DENIES AS MOOT the Motion to Strike with respect to Exhibits 21 and 24, since this Court dismisses, infra, Plaintiff’s claims with respect to Soledad Brother and Lockdown America. As to Defendants’ other objections on relevancy grounds, the Court finds that the evidence is sufficiently relevant under Federal Rule of Evidence 401 to avoid being struck, even though it is not controlling on the issues presented to the Court, as discussed further herein. Fed. R. Evid. 401. The Court therefore DENIES the Motion to Strike with respect to Exhibits 12, 32, 27, and 31. With respect to Exhibits 8(a)-(c) and 18, the Court does not share Defendants’ concerns as to authentication or admissibility. Indeed, Defendants do not specifically allege that anything in those large exhibits is inaccurate. Plaintiff’s summary is admissible under Fed. R. Evid. 1006. The Court therefore DENIES the Motion to Strike with respect to Exhibits 8(a)-(c) and 18. Finally the Court does not reach the question of the admissibility of the testimony of expert Ron McAndrew (Exhibit 30), as this Court’s grant of Defendant’s motion for summary judgment precludes a ruling on the Motion to Exclude. (D.E. 76.)
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Plaintiff’s own summary judgment motion argues, inter alia, that Defendant’s disapproval decisions are arbitrary and not “reasonably related to legitimate penological interests.” (D.E. 75 at 18-22.) IV. Discussion
A. Summary Judgment Standard Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The substantive law identifies which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; Judwin Props., Inc., v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). On summary judgment, “[t]he moving party has the burden of proving there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law.” Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 246 (5th Cir. 2003); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, “the non-moving party must show that summary judgment is inappropriate by setting forth specific facts showing the existence of a genuine issue concerning every essential component of its case.” Rivera, 349 F.3d at 247. The nonmovant’s burden “is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Willis v. Roche Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995); see also Brown v. Houston, 337
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F.3d 539, 541 (5th Cir. 2003) (stating that “improbable inferences and unsupported speculation are not sufficient to [avoid] summary judgment”).
Summary judgment is not appropriate unless, viewing the evidence in the light most favorable to the non-moving party, no reasonable jury could return a verdict for that party. Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 399 (5th Cir. 2000).
B. First Amendment Rights of Book Distributors 1. First Amendment Rights are Clearly Established
Defendants first contend that book distributors, such as PLN, do not have clearly established First Amendment rights. As such, Defendants argue, PLN must establish that it is a publisher of the materials at issue, and that those materials were in fact requested by inmates, to obtain First Amendment protection. (D.E. 82 at 7-10.)
As this Court has previously explained, “[a]lthough no case has directly addressed the First Amendment rights of distributors who seek to send books or other publications to prisoners, the cases discussed [in the Court’s December 17, 2009 Order] firmly establish that First Amendment protections apply not only to readers and publishers, but to book distributors as well, and may be invoked when a distributor seeks to challenge a governmental action that interferes with its constitutional rights.” (D.E. 32 at 15-16 (emphasis added).) These constitutional rights are clearly established, and the Court does not interpret Thornburgh v. Abbott as establishing a bright-line rule limiting First Amendment protections in the prison context to publishers alone. This is particularly so in light of earlier Supreme Court precedent acknowledging the importance of distributors in the exercise of free speech rights. See, e.g., Smith v.
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California, 361 U.S. 147, 150 (1959) (“[I]t . . . requires no elaboration that the free publication and dissemination of books and other forms of the printed word furnish very familiar applications of these constitutionally protected freedoms [of the press and of speech]. It is of course no matter that the dissemination takes place under commercial auspices. Certainly a retail bookseller plays a most significant role in the process of the distribution of books.”); Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984) (“First Amendment guarantees have long been recognized as protecting distributors of publications.”). Defendants’ arguments to the contrary are unavailing. Consistent with its earlier holding in this case, the Court concludes that PLN has clearly established First Amendment rights as a book distributor, akin to those of a publisher.
2. First Amendment Rights Are Contingent Upon a Willing Recipient
Defendants contend that PLN’s First Amendment rights are dependent upon, or derivative of, an offender’s First Amendment rights, such that PLN only has the right to distribute publications to those offenders who order those materials. (D.E. 82 at 9, 1113.) Defendants’ basis for their argument is the Supreme Court’s decision in Thornburgh v. Abbott, wherein the Court stated that “publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” 490 U.S. at 408 (emphasis added). They argue that, because no TDCJ offender ordered three of the books at issue (Women Behind Bars, Lockdown America, or Soledad Brother), PLN has no First Amendment claim with respect to these publications. (D.E. 82 at 11-13.) In response, PLN disputes Defendants’ contentions with respect to Women Behind Bars, but essentially concedes that no inmate specifically ordered Lockdown America or Soledad Brother. (D.E. 90 at
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12 (“PLN undisputedly sent Prison Masculinities, Perpetual Prisoner Machine, and Women Behind Bars to prisoners who specifically sought the books or PLN’s ‘point of view.’”).) With respect to Lockdown America and Soledad Brother, PLN contends that its rights to send individually addressed books to certain inmates, even absent subscription, is protected under the First Amendment and distinguishable from prohibitions on “bulk mailings.” (D.E. 90 at 13-14.)
The issue of whether a distributor such as PLN has a freestanding right to send unsolicited books to prisoners has rarely been addressed in the federal courts. The Supreme Court in Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 131 (1977) upheld a ban on junk mail sent indiscriminately to all inmates, but the unsolicited books at issue here were addressed and sent to individual prisoners. In Prison Legal News v. Lehman, the Ninth Circuit addressed “whether a ban on non-subscription bulk mail and catalogs is . . . unconstitutional.” 397 F.3d 692, 699 (9th Cir. 2005). In that case, the court made clear that mail from PLN was “sent as a result of a request by the recipient.” Id. at 700. The court confirmed that “it is the request on the part of the receiver and compliance on the part of the sender, and not the payment of money, that is relevant to the First Amendment analysis.” Id. at 701 (emphasis added). Other courts within the Ninth Circuit have considered, but not decided, whether a publisher or distributor has a First Amendment right to send books or other materials to inmates who have not specifically subscribed or otherwise requested those materials. See Hrdlicka v. Cogbill, 2006 WL 2560790, at *8 (N.D. Cal. Sep. 1, 2006) (“in the absence of authority indicating that a publisher’s First Amendment interest in communicating with inmates is contingent on an inmate first expressing an interest in receiving such information, the
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fact that [publication] is unsolicited does not compel the conclusion that Plaintiffs, as publishers, lack any First Amendment interest in distributing their magazine. . . . [T]he Court assumes, without deciding, that Plaintiffs have a First Amendment interest in distributing their unsolicited, non-subscription publication to Sonoma County inmates.”) (emphasis added); see also Crime, Justice & America, Inc. v. McGinness, 2009 WL 2390761, at *4 n.4 (E.D. Cal. Aug. 3, 2009) (noting, but declining to address the issue of whether plaintiffs had a First Amendment right to distribute their unsolicited publication to inmates).
Nevertheless, the Court has found no relevant authority within the Fifth Circuit on this issue. In the absence of any such authority, the Court must rely upon the Supreme Court’s statement in Thornburgh that “publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” 490 U.S. at 408 (emphasis added); see also id. at 411 n.9. Although the Court has found a sufficient basis to extend Thornburgh to include non-publisher distributors, it finds no such basis to extend it beyond distributions to recipients who ordered or otherwise willingly sought the books at issue. Thus, without demonstrating that at least one TDCJ inmate willingly sought PLN’s books, Plaintiff cannot state a valid First Amendment claim with respect to those books.
There is no dispute that prisoners in fact ordered Prison Masculinities and Perpetual Prisoner Machine. (D.E. 82 at 11; see D.E. 75-4 at 1 (inmate Michael W. Jewell stating that his wife ordered Prison Masculinities for him from PLN in October 2005 and November 2009).) As to Women Behind Bars, PLN has presented sufficient evidence that the TDCJ recipients “willingly” sought this publication, even if PLN also
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sent copies of the book to test for censorship, and the book was not sent in exchange for payment. (D.E. 90-1 at 40 (letter from Rudy Martinez, stating “I’m sharing the PLN with guys in here who are amazed at what they are reading in the PLN and the excellent book Women Behind Bars”); 41 (letter from Alan Wade Johnson, stating “I received [Women Behind Bars] on July 30, 200. In the future, if PLN needs to challenge such a censorship, you are welcome to forward same to me.”); 45 (letter from Michael Pitman, stating “thank you for [Women Behind Bars] and happy to have been some service to you.”); see also D.E. 75-5 at 54-55 (declaration of inmate at Segovia Unit stating that, upon receiving notice that Women Behind Bars was denied, he filed grievances to obtain the book); D.E. 82-18 at 4 (letter from Woodrow Miller at Garza East Unit requesting that another copy of Women Behind Bars be forwarded to him, “with the objectionable content redacted.”); but see D.E. 82-14 (discussing proposal to send books to TDCJ prisoners to “see what happens”); see generally D.E. 82-28 (deposition of Paul Wright); D.E. 90-1 at 2 (second declaration of Paul Wright, stating that some copies of Women Behind Bars were sent to test for censorship).) Plaintiff, however, has not submitted any evidence that any TDCJ inmate ordered or otherwise sought Lockdown America or Soledad Brother. As such, PLN does not have standing to pursue a First Amendment claim with respect to either of these books. PLN’s claims with respect to these two books (Lockdown America and Soledad Brother) must therefore be dismissed. Plaintiff’s claims with respect to Women Behind Bars, Prison Masculinities, and Perpetual Prisoner Machine, however, may proceed to the next stage of the analysis.10
10 Even if, as Defendants suggest, PLN “impermissibly sat on its rights” with respect to Women Behind Bars by “ignor[ing] TDCJ’s appeal process,” (D.E. 82 at 13-14) this would have no effect on PLN’s ability to bring this action. As PLN correctly notes, there is no “administrative exhaustion” requirement with respect to its Section 1983 claim. See Steffel v. Thompson, 415 U.S. 452, 472-73 (1974) (“When federal
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C. Facial Validity vs. As-Applied Challenge 1. Facial Validity Not Disputed
Defendants state that the TDCJ offender correspondence rules, as written, are constitutional as a matter of law under Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978), which developed guidelines to be followed before TDCJ could refuse delivery of correspondence to inmates. The Fifth Circuit reaffirmed the rules’ constitutionality after Thornburgh. (D.E. 82 at 6-7 (citing Thompson v. Patteson, 985 F.2d 202, 206 (5th Cir. 1993).) Plaintiff admits that its dispute lies not with the TDCJ policies as written, but rather as they are applied. (D.E. 90 at 6 (“PLN’s complaint is not that TDCJ’s policy is unconstitutional as written, but that TDCJ fails to ensure that its employees apply it in a constitutional fashion.”).).
In light of the foregoing, the Court clarifies that this case does not test the facial validity of the relevant TDCJ regulations, but rather only as they have been applied in this instance. In other words, PLN’s First Amendment claims can succeed, if at all, only as an “as applied” challenge to the TDCJ regulations. The next consideration is whether PLN is in fact able to make such an “as applied” challenge.
2. PLN May Make an “As Applied” Challenge Defendants contend that PLN’s “as applied” challenge to the TDCJ regulations fail as a matter of law. Defendants argue that, since PLN’s rights are derivative of the offender’s rights, and since an offender cannot make an “as applied” challenge, PLN cannot do so either. (D.E. 82 at 10.) Plaintiff disagrees. (D.E. 90 at 6-8.)
claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)-as they are here-we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.”). Thus, whether or not PLN pursued the TDCJ appeal process is irrelevant to its First Amendment claim.
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Defendants’ contention with respect to as applied challenges is simply incorrect. Thornburgh v. Abbott, which was brought by a class of inmates and certain publishers, involved “a facial challenge to the [BOP] regulations as well as a challenge to the regulations as applied to 46 specific publications excluded by the Bureau.” 490 U.S. at 403 (emphasis added). In the end, the Supreme Court in Thornburgh addressed only the facial validity of the BOP regulations, but remanded to the lower court “for an examination of the validity of the regulations as applied to any of the 46 publications introduced at trial as to which there remains a live controversy.” Id. at 419 (emphasis added). The Court never suggested that the as applied challenges to the BOP regulations were per se invalid. The Fifth Circuit has similarly considered “as applied” challenges from inmates, even if ultimately rejecting such challenges on other grounds. See, e.g., Leachman v. Thomas, 229 F.3d 1148, 2000 WL 1239126, at *1 (5th Cir. 2000) (considering as applied challenge to jail’s regulations, but rejecting it in light of the jail’s “valid penological interest in preventing dissemination of literature that would have a detrimental effect upon the safety and/or rehabilitation interests of the facility.”).
Defendants rely upon Moore v. Dretke, 2006 WL 1663758 (S.D. Tex. June 14, 2006) and Thompson v. Patteson, 985 F.2d 202 (5th Cir. 1993) to support their conclusion that as applied challenges to TDCJ regulations must fail as a matter of law. In Thompson, the plaintiff-inmate sought to challenge the TDCJ’s decision to withhold certain books and pornographic magazines because “they would encourage deviate, criminal sexual behavior.” The Fifth Circuit explicitly noted that the plaintiff did not “argue that the defendants withheld material not properly covered by” the relevant regulation, but rather “his First Amendment claim appear[ed] to be a facial challenge to
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the initial rule itself: he argues that the very practice of limiting access to sexually oriented materials embodied in the rule is unconstitutional.” 985 F.2d at 206 (emphasis added). Such a claim, the court rightly concluded, was foreclosed by Guajardo. Id.; see also Id. at 207 (“Thompson’s suit was not one alleging that his publications were excluded because of an improper application of the correspondence rules . . . .”). Similarly, Moore v. Dretke, which relied upon Thompson, properly concluded that an inmate’s facial challenge to the same TDCJ regulation was unavailing, after he was denied access to pornographic magazines such as Penthouse, Gallery, and High Society. 2006 WL 1663758, at *6. Neither Thompson nor Moore stand for the proposition that “as applied” challenges to TDCJ regulations are prohibited (by publishers, distributors, or inmates) as a matter of law. Plaintiff is allowed to challenge Defendants’ application of the TDCJ regulations to the books it has distributed to willing recipients in this litigation (Prison Masculinities, Perpetual Prisoner Machine, and Women Behind Bars).
D. Reasonable Relationship to Legitimate Penological Interests The core dispute in this litigation is whether Defendants’ decision to disapprove the books at issue violated PLN’s First Amendment rights. (D.E. 75 at 18-23; D.E. 82 at 14-19.) The court first reviews the applicable law, then considers its application with respect to Defendants’ decisions regarding Prison Masculinities, Perpetual Prisoner Machine, and Women Behind Bars.
1. Applicable Law A court must review prison regulations that encroach on fundamental constitutional rights under the standard set forth by the Supreme Court in Turner v. Safley, to determine whether the regulation is “reasonably related to legitimate
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penological interests.” Turner v. Safley, 482 U.S. 78 (1987); Mayfield v. Tex. Dep’t Crim. Just., 529 F.3d 599, 607 (5th Cir. 2008). The Turner factors are applicable to both facial and as-applied challenges to prison regulations. See, e.g., Shaw v. Murphy, 532 U.S. 223, 232 (2001) (“Under Turner, the question remains whether the prison regulations, as applied to Murphy, are ‘reasonably related to legitimate penological interests.’”); Thornburgh, 490 U.S. at 414. The burden is on the party challenging the regulation at issue, not the state. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
In evaluating the reasonableness of a prison regulation, the Court must consider four factors: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) “the impact accommodation . . . will have on guards and other inmates, and on the allocation of prison resources generally”; (4) whether there are “ready alternatives that could fully accommodate[ ] the prisoner’s rights at de minimis cost to valid penological interests.” Turner, 482 U.S. at 89-91 (internal citations and quotation marks omitted); Mayfield, 529 F.3d at 607 (citing Turner).
The Supreme Court has recently acknowledged the importance of the first Turner factor. Beard v. Banks, 548 U.S. 521, 532 (2006) (“[T]he second, third, and fourth factors, being in a sense logically related to the Policy [at issue] itself, here add little, one way or another, to the first factor’s basic logical rationale.”). As the Supreme Court has explained, “[t]he real task . . . is not balancing these factors, but rather determining whether the Secretary [of the Department of Corrections] shows more than simply a logical relation, that is, whether he shows a reasonable relation.” Id. at 533 (emphasis
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added); see also Morgan v. Quarterman, 570 F.3d 663, 666 (5th Cir. 2009); Mayfield, 529 F.3d at 607 (“While Turner’s standard encompasses four factors, we have noted that rationality is the controlling factor, and a court need not weigh each factor equally.”); Scott v. Miss. Dep’t of Corr., 961 F.2d 77, 80-81 (5th Cir. 1992) (“Turner [does not] require a court to weigh evenly, or even consider, each of these [four] factors. . . . Factor one is simply a restatement of the principle of rationality review: ‘[A] regulation must have a logical connection to legitimate governmental interests invoked to justify it. . . . [T]his is the controlling question . . . ; the other factors merely help a court determine if the connection is logical. . . .”).
“Turner’s standard also includes a neutrality requirement- ‘the government objective must be a legitimate and neutral one . . . [and] [w]e have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion.’” Mayfield, 529 F.3d at 607 (citing Turner, 482 U.S. at 90). As the Supreme Court has explained, “[w]here . . . prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are ‘neutral’ in the technical sense in which we meant and used that term in Turner.” Thornburgh, 490 U.S. at 415-16.
The Supreme Court has made clear that corrections officials are to be accorded considerable deference in their prison management decisions. As the Court in Thornburgh explained:
All these claims to prison access undoubtedly are legitimate; yet prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison. Acknowledging the expertise of these officials and that the judiciary is “ill equipped” to deal with the difficult and delicate problems of prison management, this Court has
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afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world. 490 U.S. at 407-08 (emphasis added); see also Overton, 539 U.S. at 132 (“We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.”) (emphasis added). As such, the Court must apply the Turner factors, with deference to Defendants’ actions in this case.
2. Analysis The Court considers each of the Turner factors to determine whether Defendants’ censorship decisions were “reasonably related to legitimate penological interests,” with respect to Prison Masculinities, Perpetual Prisoner Machine, and Women Behind Bars.
a. Rational Connection The first Turner factor asks whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89. As noted above, this is the most important consideration. Beard, 521 U.S. at 533. PLN contends that there is no “rational reason” for censoring the books at issue in this case, particularly when compared to other publications that have not been banned, such as Mein Kampf, Lolita, The Shawshank Redemption, or Pimpology: The 48 Laws of
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the Game.11 (D.E. 75 at 20-22.) Defendants respond by explaining their reasoning
behind their censorship decisions. (D.E. 82 at 14-19.)
As discussed above, the TDCJ provided specific reasons for its denial of each of
the books at issue. Women Behind Bars was originally disapproved due to a passage
depicting “sex with a minor” on page 38 of the book, and thus would encourage “deviant
criminal sexual behavior.” The specific passage at issue reads as follows:
What is even more remarkable about [Tina] Thomas [a medical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her adult life. It might have been precisely that background that first propelled her to become an overachiever and attain a high level of professional success, but then came back to haunt her just as she had gotten to where she wanted to go. The dark secret of her life was that she had been forced to perform fellatio on her uncle when she was just four years old. Thomas explains that this unresolved trauma became “the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.”
(D.E. 75-3 at 21.) Defendant Smith re-reviewed Women Behind Bars after being
deposed in this lawsuit, however, and determined that TDCJ would no longer censor it, as
it would not “encourage deviant criminal sexual behavior.” (D.E. 75 at 8.)12
11 Pimpology: The 48 Laws of the Game (New York: Simon Spotlight Entertainment, 2007) deals generally with the business of prostitution, and has chapter titles such as “Don’t Chase ‘Em, Replace ‘Em,” “Prey on the Weak,” “Pimp Like You’re Ho-less,” and “Get You a Bottom Bitch.” (D.E. 75-3 at 113.) 12 Defendants argue that the July 30, 2010 approval of Women Behind Bars moots PLN’s claims with respect to this publication, as there is no longer a “case or controversy.” (D.E. 82 at 17.) Plaintiff responds that, despite the approval, copies of Women Behind Bars are still not being delivered to some inmates, and that TDCJ’s censorship of this book is capable of repetition. (D.E. 90 at 17-20.) Here, the Court finds that TDCJ’s mid-litigation approval of Women Behind Bars does not moot the claims. The Supreme Court has explained that the mootness standard is “stringent,” and “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, Inc. v. Laidlaw Env. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations omitted); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009) (citing Friends of the Earth). While “government actors in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith” in the mootness analysis, 560 F.3d at 325, Defendants cannot demonstrate that subsequent banning of Women Behind Bars will not recur, either upon further review after this litigation concludes, or if a new edition is released. The Court declines Defendants’ invitation to dismiss Plaintiff’s claim as to Women Behind Bars on mootness grounds.
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Perpetual Prisoner Machine was rejected for a similar reason, namely that page 45 discussed “rape,” when quoting from a 1968 Philadelphia District Attorney’s Office report discussing rape in local jails. One relevant portion of the passage reads: “virtually every slightly built young man committed to jail by the courts . . . is sexually approached within hours of his admission to prison. Many young men are overwhelmed and repeatedly ‘raped’ by gangs of inmate aggressors.” (D.E. 75, Exh. 6.)
Finally, Prison Masculinities was rejected because pages 128-131 discussed “rape” and pages 194 and 222 contained “racial material.” The rape passages discuss how a prisoner was “humiliated telling anyone about” being sexually assaulted, and how he underwent “torture scenes” while incarcerated. Specifically, the relevant passages in this book discuss an inmate being “raped and beaten by Blacks as a punishment for permitting [himself] to be raped by Whites,” and that “getting fucked by a tender, gentle jock was better than the vicious gang-bangs and there was pride in making my man happy in bed . . . The s & m freaks . . . always scared the hell out of me and were the worse [sic] of all the jocks in any joint I was in.” The passages discuss repeated sexual assaults and rapes of an inmate who was a teenager at the time, some of which are quite graphic. (D.E. 75-5 at 5-9.) The racial material involves use of the phrase “damn nigger” by a corrections officer before assaulting the inmate, and a passage that states as follows:
James Jackson, forty-five, who has already done seventeen and a half years of a twenty-year-to-life sentence, nods his head in agreement. Jackson continues, ‘Black people can get on the radio and use the words ‘nigger’ and ‘bitch.’ To me, that’s serious. If you think white people are going to stop us from call us niggers and bitches, you’re crazy. We’ve got to stop degrading ourselves. (D.E. 75, Ex. 29.)
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There can be little doubt that rape and racial violence are serious problems in correctional facilities, and that prison officials’ actions are “reasonably related to legitimate penological interests” when they seek to address these problems. It is also true that rehabilitation of inmates is a “legitimate penological interest.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (“The limitations on the exercise of constitutional rights arise both from the fact of incarceration and from valid penological objectives – including deterrence of crime, rehabilitation of prisoners, and institutional security.”); Green v. Polunsky, 229 F.3d 486, 489 (5th Cir. 2000) (citing O’Lone).
In assessing the TDCJ’s initial decision to disapprove Women Behind Bars, Perpetual Prisoner Machine, and Prison Masculinities, the question is not whether this Court, or indeed any outside observer, agrees with the decision that was made. Rather, the question is focused solely on whether there is a “valid, rational connection” between the decision made and a “legitimate governmental interest.” Turner, 482 U.S. at 89.
With this in mind, the Court cannot say that Defendants’ disapproval decisions bear no “rational connection” to the legitimate interests of improving institutional security or assisting inmate rehabilitation. It is tempting, as Plaintiff argues, to compare the disapproved materials to others that have been approved, such as Mein Kampf, Lolita, or Pimpology. (D.E. 75.) This, however, is not the appropriate inquiry. The Court can look only at the “rationality” or “reasonableness” of the decision with respect to the particular publication at issue, keeping in mind that these decisions are made over the course of many years, perhaps by many different individuals.13 If Defendants believed that the offensive material in Women Behind Bars, Prison Masculinities, and Perpetual
13 Defendants note in their Response that many of the purported “inconsistent” books were reviewed at the TDCJ unit level, not at the DRC/MSCP level, and the decisions were made “long before any of the individual Defendants began reviewing books at TDCJ.” (D.E. 89 at 3.)
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Prisoner Machine would interfere with legitimate penological interests, perhaps by interfering with the rehabilitation of inmates or increasing institutional violence, this decision is entitled to deference, even if subject to reasonable debate.
With respect to Women Behind Bars, Defendant Weeks testified that she believed the disapproval to be justified based upon the brief reference to child sexual abuse because some of the prisoners on her unit had been sexually abused, and “sometimes just reading something can trigger a reaction. It would not be good for them. It would not be good for the unit.” Mailroom employee Michayel Smith also testified that she would disapprove Women Behind Bars. (D.E. 75-1 at 53; see also D.E. 75-2 at 374 (Michayel Smith deposition); 82-30 at 3-4.) In her declaration, Defendant Jennifer Smith explained that “a book entering into any TDCJ prison could be read by many more offenders than the offender who received the book and [her staff] often do[es] not know the background of the offender or how a publication might influence their emotional state at any given moment.” (D.E. 82-2 at 6.) She particularly notes the large number of sexual and other physical assaults in the TDCJ system in any given year, incidents which her staff must “keep in mind when reviewing books.” (D.E. 82-2 at 6; see generally D.E. 82-6 (statistics related to sexual assaults and other violence at TDCJ facilities from 20062009).)
With respect to Perpetual Prisoner Machine, Defendant Smith stated in her declaration that the book should be denied “due to the amount of graphic detail describing the rape.” She explains that “[a] graphic, detailed description such as this constitutes a threat to the safety and security of the prison because offenders could ‘act out’ the description to commit a copycat type rape or it could remind an offender of a
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similar experience which could upset the offender.” (D.E. 82-2 at 15.) This is a particular concern in light of the high number of sexual assaults at TDCJ facilities. (Id.)
Finally, with respect to Prison Masculinities, Defendant Smith states in her declaration that “due to the amount of graphic detail describing rapes on pages 128-131, the book should remain on the database as denied.” (D.E. 82-2 at 17.) Just a small portion of the rape discussions in this book are reproduced above; some others are simply too graphic to include in this opinion. Defendant Smith’s determination that the graphic detail of the rape scenes could be detrimental is rational, and entitled to deference, even if others would tend to disagree with her conclusions.
The Supreme Court in Thornburgh recognized the inevitable difficulty in determining whether certain materials would likely be disruptive to the prison environment, and therefore recognized that courts should defer to the decisions of prison officials. As the Court explained, “[o]nce in the prison, [incoming publications] reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct. Furthermore, prisoners may observe particular material in the possession of a fellow prisoner, draw inferences about their fellow’s beliefs, sexual orientation, or gang affiliations from that material, and cause disorder by acting accordingly. . . . In the volatile prison environment, it is essential that prison officials be given broad discretion to prevent such disorder.” 490 U.S. at 412-13 (emphasis added).14 The list of TDCJ denied books submitted by Plaintiff (D.E. 75-1 at
14 It is for this reason that PLN’s various declarations (D.E. 75-4 at 46-48; 85-90; D.E. 75-5 at 47-52), submitted by authors of the publications at issue or other experts, do not change the analysis. It is not the opinions of these authors that is determinative, but rather the decisions of prison administrators, in light of their personal experience. While the declaration of former warden Ron McAndrew (D.E. 75-5 at 23-32) is somewhat more relevant (as it provides a vantage point from which to evaluate if Defendants’ decisions are in fact rational), it again misses the point. Reasonable minds can, and indeed do, differ on rational
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145-250; D.E. 75-2 at 1-312), while long, indicated that TDCJ officials have applied their regulations consistently over time. The list of books initially denied but subsequently approved on appeal (D.E. 75-2 at 313-359) demonstrates that the TDCJ system does provide an appropriate check when a book is unreasonably denied. The lists also demonstrate the importance of deference in this case. It is likely that at least some, if not many, of the disapprovals on the list can be subject to reasonable debate and disagreement. Prison officials, however, have the authority to make these judgment calls. Given the shear numbers of books and other publications that flow through the TDCJ system on a given year, it would not be advisable (or perhaps even feasible) for the courts to make an independent judgment as to each denial, whenever called upon to do so.
In making this decision, the Court does not suggest that it agrees with Defendants’ disapproval decisions, particularly in light of the minimal nature of the “offensive” material, and certain approved publications that appear to present the same problems that led to the censorship of Women Behind Bars, Prison Masculinities, and Perpetual Prisoner Machine. This, however, is not the point. The point is whether the decision is rational. Indeed, the decisions are highly subjective (as evidenced by Defendant Smith’s own about-face with respect to Women Behind Bars (D.E. 75-1 at 83)), but ultimately it is the prison administrator’s decision that is entitled to deference, not to be lightly disturbed. This Court will not substitute its own judgment for the rational (even if debatable) decisions of prison administrators. Turner, 482 U.S. at 89 (“prison administrators . . . and not the courts, [are] to make the difficult judgments concerning institutional operations.”).
disapproval decisions. Indeed, Defendant Smith even changed her own mind with respect to Women Behind Bars. Mere disagreements do not demonstrate irrationality of the Defendants’ decisions.
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b. Alternative Means of Exercising The second Turner consideration is “whether there are alternative means of exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. “Where ‘other avenues’ remain available for the exercise of the asserted right, courts should be particularly conscious of the ‘measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.’” Id. PLN contends that, as a small non-profit organization, it can only communicate with inmates through the mail. (D.E. 75 at 22.) Defendants respond that TDCJ inmates have a “vast number” of approved books from which to chose, a total of approximately 80,000 approved titles. TDCJ has also approved “almost all” of PLN’s books for receipt by prisoners. (D.E. 82 at 16-17.) PLN’s argument on this factor appears more related to its own ability to exercise its rights, rather than the rights of prison inmates. The focus, however, is upon whether the inmates themselves have other ways to receive the information at issue. PLN has not demonstrated that TDCJ regulations, as applied, significantly inhibit TDCJ inmate’s rights to receive information. Indeed, with over 80,000 approved titles, it is difficult to argue that prisoners lack “alternative means” of exercising their rights. In any event, the Court concludes that PLN has plenty of ways to interact with prisoners. Defendant Smith states in her declaration that, of the 46 books listed at PLN’s website, only three are currently denied, and 37 have been approved. (D.E. 82-2 at 18.) PLN does not dispute this tally. The second factor does not favor PLN.
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c. Impact of Accommodation The third Turner factor considers “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 482 U.S. at 90. PLN contends that adding its books to the permissible reading list cannot have more than a de minimis impact, as evidenced by some of the other books that have been approved, and the fact that the same books have been received at other TDCJ units. (D.E. 75.) This factor, though less important, favors PLN. In light of the numerous publications already at issue, there is no indication that accommodation would impose increase costs upon the TDCJ. Nevertheless, as the Court has already concluded that Defendants’ application of the TDCJ policies in this case is rationally related to a legitimate governmental interest in limiting institutional violation and aiding rehabilitation, the mere ease of accommodation does not change the outcome.
d. Ready Alternatives The final Turner factor examines whether there are “ready alternatives that could fully accommodate[ ] the prisoner’s rights at de minimis cost to valid penological interests.” As the Supreme Court explained, “the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” 482 U.S. at 91. If an inmate can point to such an alternative, “a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. PLN does not present an argument on this final factor. As both sides admit, there are over 80,000 approved titles from which inmates may choose. Some of these titles, such as Lolita, The Shawshank Redemption, or Mein
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Kampf contain similar objectionable material that led TDCJ to disapprove the books at issue in this litigation. Nonetheless, short of banning all books with any type of objectionable material (which neither side suggests), alternative reading materials will continue to be available at TDCJ facilities. The mere fact that alternatives exist does not alter the Court’s conclusion as to the overall reasonableness of Defendant’s application of the regulations at issue.
e. Neutrality A final important consideration under Turner is the neutrality of the state action at issue. Mayfield, 529 F.3d at 607 (“we have found it important to inquire whether prison regulations restricting inmates’ First Amendment rights operated in a neutral fashion.’”) (citing Turner, 482 U.S. at 90). PLN does not specifically argue that the regulations at issue have been applied in a non-neutral, biased fashion, though the Court must consider this possibility. As noted above, of the 46 books listed at PLN’s website, only three are currently denied, and 37 have been approved. (D.E. 82-2 at 18.) Smith also states that TDCJ offenders have more than 80,000 approved books from which to choose. (D.E. 822 at 19.) Available statistics for 2008 demonstrate that of 3,158 publications reviewed by the MSCP, 2,370 were reviewed and approved, with only 788 denied, an approval rate of approximately 75 % at the MSCP level. (D.E. 82-5 at 16; see generally D.E. 82-5 (statistics related to approvals and denials of publications in 2008); D.E. 82-25 (PLN booklist).). There is thus no evidence of bias against books distributed by PLN specifically, or any particularly genre (other than those allowed to be restricted under current TDCJ regulations). The neutrality factor is therefore satisfied.
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E. Summary In light of the foregoing, the Court concludes that PLN has not met its burden to prove that Defendant’s application of the TDCJ regulations to Women Behind Bars, Perpetual Prisoner Machine, and Prison Masculinities, is not “reasonably related to legitimate penological interests.” As such, PLN has not demonstrated that Defendants have violated its First Amendment rights. In light of this conclusion, the Court need not address Defendants’ arguments regarding qualified immunity, lack of personal involvement, punitive damages, injunctive relief, and declaratory relief. (D.E. 82 at 2025.) Plaintiff’s Motion for Summary Judgment also addresses its due process cause of action. (D.E. 75 at 23-26.) As noted above, the Court already dismissed this cause of action with respect to the individual capacity claims against Defendants. (D.E. 53; D.E. 66.) To the extent Plaintiff continues to pursue this claim against Defendant Livingston in his official capacity, the Court dismisses this claim. The Court finds that the February 2010 amendments to TDCJ regulation BP-03.91 satisfies PLN’s due process concerns. The regulations now provide, “[i]f a publication is rejected, the offender and sender shall be provided a written notice of the disapproval and a statement of the reason for disapproval within 72 hours of receipt of the publication on a Publication Denial Form. Within the same time period, the offender and sender shall be notified of the procedure for appeal. . . . The offender or sender may appeal the rejection of the publication through procedures provided by these rules.” (D.E. 75-1 at 120 (emphasis added).) The revisions also provide that “[a]ny . . . sender of a publication may appeal the rejection of any correspondence or publication.” (D.E. 75-1 at 122.) The Supreme Court in
31 / 32

Procunier stated, with respect to senders of correspondence, the sender must “be given a reasonable opportunity to protest that decision, and [have] complaints be referred to a prison official other than the person who originally disapproved the correspondence.” Procunier v. Martinez, 416 U.S. 396, 418-19 (1974); see also Guajardo v. Estelle, 580 F.2d 748, 762 n.10 (5th Cir. 1978). The current TDCJ regulations meet this standard.15
Thus, the Court must therefore deny Plaintiff’s Motion for Summary Judgment (D.E. 75) and grant Defendants’ Motion for Summary Judgment (D.E. 82).16 V. Conclusion
For the reasons stated above, the Court DENIES Plaintiff’s Motion for Summary Judgment (D.E. 75) and GRANTS Defendants’ Motion for Summary Judgment (D.E. 82).
SIGNED and ORDERED this 4th day of January, 2011.
___________________________________ Janis Graham Jack
United States District Judge
15 As the due process claim is maintained, if at all, solely against Defendant Livingston in his official capacity, “the relief sought must be declaratory or injunctive in nature and prospective in effect.” See Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As the TDCJ policy has already been altered, and the Court find it is now consistent with due process requirements, PLN cannot seek any further relief, and this claim must be dismissed. 16 The Court also DENIES AS MOOT Defendants’ Motion to Exclude Expert Opinion, (D.E. 76) in light of its dismissal of this action.
32 / 32

 
 CCaassee22:0:099-c-cvv-0-000229966 DDooccuummeennt t6637-1 FFilieleddininTTXXSSDDoonn0077/3/208/1/100 PPaaggee12oof f1231

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS, a non-profit, §

Washington corporation,

§

§

Plaintiff

§

v.

§

§

§

BRAD LIVINGSTON, in his official §

capacity as the executive director of the §

Texas Department of Criminal Justice, §

and JENNIFER SMITH, SUE WEEKS, §

and RAMONA CREEK, in their

§

individual capacities

§

§

Defendants.

§

CAUSE NO. 2:09-cv-00296

SECOND AMENDED COMPLAINT

Plaintiff Prison Legal News respectfully files this Amended Complaint and will show:

STATEMENT OF CLAIM

1. Plaintiff Prison Legal News brings this civil rights action for redress of violations

of its rights to free speech and due process under the law, seeking injunctive and declaratory

relief, as well as nominal, compensatory and punitive damages against Defendants, as

appropriate.

2. Plaintiff complains Defendants have violated and continue to violate its

constitutional rights under color of law and in violation of the First and Fourteenth Amendments

of the United States Constitution.

JURISDICTION AND VENUE

3. This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988. Jurisdiction is

based on 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and the aforementioned federal statutory and

constitutional provisions.

CCaassee22:0:099-c-cvv-0-000229966 DDooccuummeennt t6637-1 FFilieleddininTTXXSSDDoonn0077/3/208/1/100 PPaaggee23oof f1231
4. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) and (2) because the events complained of occurred within this district.
PARTIES 5. Plaintiff Prison Legal News (PLN) is a project of the Human Rights Defense Center, a Washington non-profit IRS section 501(c)(3) corporation. It has offices in Seattle, Washington and Brattleboro, Vermont. 6. Defendant Brad Livingston is the executive director of the Texas Department of Criminal Justice (TDCJ). As such, Livingston is the commanding officer of all TDCJ correctional officers, guards, and TDCJ employees and contractors, and is responsible for their training, supervision, and conduct. By law, he is responsible for protecting the constitutional rights of all persons and entities interacting with TDCJ, including PLN. At all relevant times, Livingston was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. He is sued in his official capacity for prospective injunctive and declaratory relief. Livingston has been served and appeared in this action. 7. Defendant Jennifer Smith is the program specialist for TDCJ’s Mail System Coordinators Panel (MSCP). As such, Smith is responsible for review of publications censored by TDCJ mailroom staff, as well as training and supervising all TDCJ mailroom staff (as relates to TDCJ’s book censorship program). At all relevant times, Smith was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. Jennifer Smith has been served and appeared in this action. 8. Defendant Ramona Creek is a mailroom clerk at TDCJ’s Garza East Unit in Beeville, Texas. Creek is responsible for censoring publications as they arrive at the Garza East mailroom before they are distributed to prisoners. At all relevant times, Creek was acting under
2

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color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served at the Garza East Unit, 4304 Highway 202, Beeville, Texas 78102. Service is requested.
9. Defendant Weeks is a mailroom representative at TDCJ’s Hilltop Unit in Gatesville, Texas. Weeks is responsible for censoring publications as they arrive at the Hilltop mailroom before they are distributed to prisoners. At all relevant times, Weeks was acting under color of law and as the agent, and, as a matter of law, the official representative of TDCJ. She is sued in her individual capacity for nominal, punitive, declaratory, injunctive, and compensatory relief. She can be served at the Hilltop Unit, 1500 State School Road, Gatesville, TX 765982996. Service is requested.
STATEMENT OF FACTS 10. Prison Legal News (“PLN”) publishes a monthly, 56-page legal information magazine and distributes over fifty books dealing with the rights of incarcerated people. PLN’s publications provide information about, e.g., court access, disciplinary hearings, prison conditions, excessive force, mail censorship, jail litigation, visitation, telephones, religious freedom, prison rape, and the death penalty. PLN has published the magazine continuously since 1990. PLN’s publications are core protected speech, which is not objectionable on security or other grounds. 11. PLN is a distributor for Women Behind Bars: The Crisis of Women in the U.S. Prison System, by Silja J.A. Talvi. Ms. Talvi is an investigative journalist whose work has appeared in publications like The Nation, Salon, The Utne Reader, and The Christian Science Monitor. She has won awards from the Society of Professional Journalists of Western Washington, New American Media, and the National Council on Crime and Delinquency.
3

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12. Women Behind Bars was described as a “comprehensive and passionately argued indictment of the inhuman treatment of female prisoners … the sort of shocking expose too seldom seen in these media days of so much celebrity fluff” by the Seattle Post-Intelligencer. Ms. Magazine said, “Like mirrors in a house of horrors, the women in Talvi's book reflect the distorted collective flaws of our society: violence, addiction, poverty, pervasive low self-esteem, and families trapped in chronic financial and emotional crises.” A former police chief said, “I've read few accounts of social injustice that have aroused in me such intense feelings of sadness, shame, and rage. As a cop for thirty-four years, I confess to having given only passing thought to what happened to women after they're arrested and ultimately sentenced to prison. I have been stripped of my ignorance by Women Behind Bars. The agonizing experiences of many of these women, described so eloquently by [Ms.] Talvi, will haunt me for the rest of my days.”
13. In December 2008, a prisoner at TDCJ’s Hilltop Unit ordered a copy of Women Behind Bars from PLN. PLN placed the book in the mail, and it arrived at the Hilltop Unit mailroom.
14. At the Hilltop Unit mailroom, Weeks refused to deliver the book to the prisoner. Weeks completed a TDCJ “Publication Review/Denial Notification” form informing the prisoner she could not receive Women Behind Bars because “a specific determination has been made that the publication is detrimental to offenders’ rehabilitation, because it would encourage homosexual or deviant criminal behavior.” The notification suggested the book was censored by the mailroom because page 38 depicted “sex with a minor.” PLN did not receive a copy of the notice, or directions on how to appeal the mailroom’s decision. TDCJ policy does not require providing book distributors, like PLN, instructions on how to use the publication rejection appeal process.
15. Page 38 of Women Behind Bars reads:
4

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What is even more remarkable about [Tina] Thomas [a medical doctor incarcerated in Oklahoma] is that she had overcome the kind of childhood trauma that might have completely derailed her adult life. It might have been precisely that background that first propelled her to become an overachiever and attain a high level of professional success, but then came back to haunt her just as she had gotten to where she wanted to go. The dark secret of her life was that she had been forced to perform fellatio on her uncle when she was just four years old. Thomas explains that this unresolved trauma became “the template for a lifetime of distrust, fear, uncertainty, and a spirit of self-negation.” The remainder of the page discusses how this trauma caused Thomas to develop the drug addiction that resulted in her incarceration. The page contains no further discussion of “sex with a minor.” 16. Weeks’ decision to censor Women Behind Bars was reviewed by Jennifer Smith when the prisoner appealed. Smith, acting as the delegate of the Directors Review Committee (DRC) which reviews censorship decisions, upheld Weeks’ decision, and the prisoner was not allowed to receive Women Behind Bars. PLN was not informed of this decision, or given directions on how to present information to the DRC during the review process. 17. After Smith and the DRC censor a book, the book’s title is placed on a list of “denied” books that is circulated to other TDCJ mailrooms. When a book has been “denied” by the DRC it will never be reviewed again. 18. PLN sent two more copies of Women Behind Bars to prisoners in TDCJ’s Garza East Unit, in Beeville, Texas in September 2009. Defendant Creek censored the books, again relying on the “sex with a minor” passage on page 38. Creek failed to provide PLN with a copy of the “Publication Review/Denial Notification” or any information about how to contest the decision. 19. At Smith’s direction, TDCJ mailroom clerks like Weeks and Creek routinely fail to provide notice books are being censored to the people who send those books.
5

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20. In March 2009, PLN sent a copy of another book, Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer to a prisoner incarcerated at TDCJ’s Allred Unit in Iowa Park, Texas.
21. Perpetual Prisoner Machine is a critique of the for-profit prison industry. The Rocky Mountain News called it “enlightening and frightening … a moving and gripping social commentary.” The San Diego Union Tribune said it was “a good assault on destructive social policy.” Professor Howard Zinn described it as “a bold and deep-probing analysis of our criminal justice system. It raises serious questions about crime and punishment which reflect not just on prisons, but on our for-profit driven society.”
22. TDCJ, through the DRC, “disapproves” of Perpetual Prisoner Machine because page 45 discusses “rape.” Page 45, in fact, quotes from a 1968 Philadelphia District Attorney’s Office investigation into sexual assault in prison, and describes crimes committed against prisoners.
23. TDCJ, through Smith and the DRC, did not provide PLN with any information about how to contest the decision to censor Perpetual Prisoner Machine or any opportunity to do so.
24. TDCJ and Smith also censor three other books PLN distributes: Soledad Brother: The Prison Letters of George Jackson, by George Jackson; Lockdown America: Police and Prisons in the Age of Crisis, by Christian Parenti; and Prison Masculinities, by Don Sabo, Dr. Terry Kupers, and Willie London. These books are all on TDCJ’s permanent “disallowed” list.
25. Soledad Brother is a collection of letters by George Jackson, a member of the Black Panthers, who was imprisoned in California’s Soledad prison in the 1960s. The New York Times called Jackson “a talented writer, a sensitive man, a potential leader and political thinker
6

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of great persuasiveness.” Ebony called the book a “penetrating and scathing” criticism of American life.
26. TDCJ did not provide PLN notice TDCJ was censoring Soledad Brother before the filing of this litigation.
27. TDCJ censors Soledad Brother because page xxiii is “racial.” Page xxiii is part of an introduction written by George Jackson’s nephew, Jonathan Jackson, Jr. The offending passage reads:
Race is more times than not the easy answer to a problem. Among people of color in the United States, the quick fix, “blame it on whitey” mentality has become so prevalent that it shortcuts thinking. Conversely, stereotypes of minorities act as simple-minded tools of divisiveness and oppression. George addressed these issues in prison, setting a model for the outside as well: “I’m always telling the brothers some of those whites are willing to work with us against the pigs. All they got to do is stop talking honky. When the races start fighting, all you have is one maniac group against another. Nothing on this page encourages racial hatred or division, and, in fact, the page promotes racial harmony. 28. Lockdown America is a history of the prison expansion that began in America in the 1970s. The Washington Post praised it as “exhaustively documented” and “deserv[ing] [of] a full hearing from anyone serious about ending the often horrific realities of the criminal justice system.” The Christian Science Monitor described it as an “unflinching look at what our nation has become” and noted it “cannot fail to generate serious thought about issues we prefer to lock away in darkness.” 29. TDCJ did not provide PLN notice TDCJ was censoring Lockdown America before filing this litigation. 30. TDCJ censors Lockdown America because page 206 is “racial.” The page describes how some prison guards in California belong to racist prison gangs: “Another group of screws at the California Institution for Men at Chino called itself SPONGE, a disgusting
7

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acronym for the equally disgusting name, ‘Society for the Prevention of Niggers Getting Everything.’” Nothing on this page encourages racial hatred or division, and, in fact, the page promotes racial harmony.
31. Prison Masculinities is a collection of essays about prison conditions by distinguished authors. One of the editors, Dr. Terry Kupers, is a psychiatrist and has been recognized as an expert witness in over a dozen federal prison conditions cases, and is a consultant to the U.S. Department of Justice, Human Rights Watch, and Amnesty International. Other contributors to the book include the former directors of noted prison-reform non-profits, Stop Prisoner Rape, the Prison Law Office, and the Sentencing Project; and professors at the University of Southern California, Bowling Green State University, and the University of Missouri – Kansas City.
32. Prison Masculinities was censored at TDCJ’s Powledge Unit in 2009 because “pages: 128-131 – contain rape” and “pages 194 + 222 – contain racial material.” Passages on pages 128-131 do discuss prisoner rape. A prisoner describes how he was “humiliated telling anyone about” being sexually assaulted, and how he underwent “torture scenes” at the hands of fellow prisoners. Page 194 is from an essay by Dr. Kupers where he discusses a guard calling a prisoner a “damn nigger” before assaulting the inmate. Page 222 is from an essay about support groups in prison, and discusses a conversation prisoners had about personal responsibility. “James Jackson, forty-five, who has already done seventeen and a half years of a twenty-year-tolife sentence, nods his head in agreement. Jackson continues, ‘Black people can get on the radio and use the words ‘niggers’ and ‘bitch.’ To me, that’s serious. If you think white people are going to stop us from calling us niggers and bitches, you’re crazy. We’ve got to stop degrading ourselves.”
8

CCasaese2:20:90-9c-vc-v0-002092696 DDocoucmumenetn6t 36-71 FFiilleedd iinn TTXXSSDD oonn 0077//3208//1100 PPaaggee 910ofo1f 321
33. TDCJ did not notify PLN Prison Masculinities was being censored. PLN learned of the censorship when the prisoner instructed TDCJ to send the book and censorship notice to PLN’s counsel.
34. Defendants’ censorship regime, as authorized and supervised by Smith, is arbitrary, serves no legitimate penological purpose as applied to PLN’s publications, and violates the constitutional rights of book distributors like PLN. Smith and TDCJ moreover fails to ensure the regime provides distributors, like PLN, constitutionally-required due process to contest decisions to permanently ban their publications. TDCJ’s written policies do not permit censoring publications like Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother¸ Lockdown America, or Prison Masculinities for the reasons identified by Defendants.
35. Smith’s deliberately indifferent failure to supervise or train her subordinates results in violations of PLN’s constitutional rights. The practices of Smith’s subordinates, of which she is aware and deliberately indifferent to, are contrary to clearly established free speech and due process protections.
36. It is likely Defendants will continue to censor the books PLN distributes, including Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities, in the future without providing PLN due process.
37. Allowing PLN to distribute Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities to TDCJ prisoners will not have any significant impact on TDCJ facilities or programs.
38. Readily available alternatives to censoring Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities could, at de minimis cost, easily satisfy any legitimate or significant interests of TDCJ without sacrificing the free speech and expression rights of PLN and the prisoners in TDCJ custody.
9

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39. The violations of PLN’s constitutional rights have resulted in lost revenue from book sales, and loss of business reputation, in addition to the loss of its valuable constitutionally protected free speech and due process rights.
CAUSE OF ACTION I: FREEDOM OF SPEECH AND EXPRESSION 40. Defendants’ censorship of Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities violates the free speech and expression rights of Prison Legal News secured by the First and Fourteenth Amendments to the Untied States Constitution. 41. Prison Legal News has a constitutionally-protected liberty interest in communicating with incarcerated individuals. This right is clearly established under existing case law. 42. Defendants’ policy does not further any legitimate penological interest. Defendants Smith, Weeks and Creek acted wantonly, willfully and/or maliciously in violating PLN’s constitutional rights.
CAUSE OF ACTION II: DUE PROCESS OF LAW 43. Defendants’ actions banning Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities did not provide Prison Legal News with individualized notice that its free speech and expression rights are being violated. Defendants gave PLN no notice of the decisions to deny copies of Women Behind Bars, Perpetual Prisoner Machine, Soledad Brother, Lockdown America and Prison Masculinities to prisoners, or information about how to contest the decisions. 44. Prison Legal News has a right under the Fourteenth Amendment to receive notice and the opportunity to object when Defendants prevent its books from reaching prisoners. This right is clearly established under existing case law.
10

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45. Defendants’ failure to provide notice to Prison Legal News that its books were being censored does not further any legitimate penological interest. Defendant Smith acted wantonly, willfully and/or maliciously in violating PLN’s constitutional rights.
DAMAGES 46. Plaintiff seeks compensatory, punitive, and nominal damages for violations of its constitutional free speech and due process rights under the First and Fourteenth Amendments; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF 47. Plaintiff requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF 48. Plaintiff requests the Court grant appropriate relief enjoining Defendants from continuing to violate its free speech and due process rights. Plaintiff seeks permanent injunctive relief requiring Defendants to provide written notice to senders and an opportunity to respond before censoring their publications, and requiring the adoption of specific guidelines delineating what materials may be delivered to prisoners though the mail, as well as any other appropriate injunctive relief.
ATTORNEYS’ FEES AND COSTS 49. Pursuant to 42 U.S.C. § 1988, Plaintiff is entitled to recover attorneys’ fees and costs.
PRAYER FOR RELIEF THEREFORE, Plaintiff requests the Court: A. Award punitive damages against all individual Defendants sued in their individual
capacities, as appropriate and allowed by law;
11

CCaassee22:0:099-c-cvv-0-000229966 DDooccuummeennt t6637-1 FFilieleddininTTXXSSDDoonn0077/3/208/1/100 PPaaggee1123oof f1231
B. Award compensatory damages, including damages for lost revenues and damage
to business reputation, against all Defendants sued in their individual capacities,
jointly and severally;
C. Award nominal damages against all Defendants sued in their individual
capacities, jointly and severally;
D. Grant declaratory and injunctive relief under federal law against all Defendants,
as set out in this Complaint;
E. Grant reasonable attorneys’ fees, litigation expenses and court costs; and,
F. Grant all such other and further relief as appears reasonable and just, to which
Plaintiff may be entitled.
Dated: July 28, 2010.
Respectfully Submitted:
/s/ Scott Medlock Scott Medlock Texas Bar No. 24044783 S. Dist. No. 608457 Attorney-in-charge Lauren Izzo State Bar No. 24065482 S. Dist. No. 1002172 James C. Harrington Texas Bar No. 09048500 S. Dist. No. 4025
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr. Austin, TX 78741
(512) 474-5073 (512) 474-0726 (Fax)
Adam Cook Massachusetts Bar No. 659575 Pro Hac Vice
12

CCaassee22:0:099-c-cvv-0-000229966 DDooccuummeennt t6637-1 FFilieleddininTTXXSSDDoonn0077/3/208/1/100 PPaaggee1134oof f1231 Human Rights Defense Center PO Box 2420 1037 Western Ave. West Brattleborough, VT 05303 ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE A true copy of this document was sent to Assistant Attorney General of Texas, Cynthia Alexander, P.O. Box 12548, Capitol Station, Austin, TX, 78711, via the Court’s electronic filing system pursuant to Local Rule LR5.1.
/s/ Scott Medlock Scott Medlock
13

 
 Case 2:09-cv-00296 Document 97 Filed in TXSD on 01/05/11 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

PRISON LEGAL NEWS,
Plaintiff, VS.
BRAD LIVINGSTON, et al,
Defendants.

§ § § § CIVIL ACTION NO. C-09-296 § § § §

FINAL JUDGMENT

In accordance with this Court’s Order GRANTING Defendants’ Motion for Summary

Judgment, the Court hereby enters final judgment DISMISSING this case in its entirety.

SIGNED and ORDERED this 5th day of January, 2011.

___________________________________ Janis Graham Jack
United States District Judge

1 / 1

 
 Case 2:09-cv-00296 Document 105 Filed in TXSD on 06/29/12 Page 1 of 2

United States Court of Appeals Fifth Circuit
UNITED STATES COURT OF APPEALS F I LED
June 1, 2012

FOR THE FIFTH CIRCUIT

Lyle W. Cayce Clerk

No. 11-40128

D.C. Docket No. 2:09-CV-296
PRISON LEGAL NEWS, a non-profit, Washington Corporation,
Plaintiff - Appellant v.

~ us. DIstrIct Court
"""""18m DIstrict 01 T8JrB8 FlLEO
JUN 29 2012
DavId J. Bradley. Clerk Of Court

BRAD LIVINGSTON, in his official capacity as the executive director of the Texas Department of Criminal Justice; JENNIFER SMITH; RAMONA CREEK, in her individual capacity; SUE WEEKS, in her individual capacity,

Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas, Corpus Christi

Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and was argued by counsel.

It is ordered and adjudged that the judgment of the District Court is affirmed.

IT IS FURTHER ORDERED that plaintiff-appellant pay to defendantsappellees the costs on appeal to be taxed by the Clerk of this Court.
A True Copy Attest
ISSUED AS MANDATE:

New Orleans, Louisiana jUN 2 5 2012

Case 2:09-cv-00296 Document 105 Filed in TXSD on 06/29/12 Page 2 of 2

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BILL OF COSTS

NOTE: The Bill of Costs is due in this office within 14 dIlys from the date ofthe opinion, See FED. R. APP. P. & ST. CIR. R. 39. Untimely bills of costs must be
accompanied by a separate motion to file out of time, which the court may deny.

_ Pris_on_Le_ga_l N_ ew_s _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ v. Livingston, et al.

No.(1140128 -- - -,

The Clerk is requested to tn the following costs against: -Pla-in-tiff--A~pp-ella-nt-P-ris-on-Le~ga-l N-ew-s--------------------------

eOSTSTAXABLEUNDER Fed. R. App. P. & S.. elr. R. 39

No. of Copies

REQUESTED

ALLOWED (If different from amount requested)

Docket Fee (54S0.00)

Appendix or Record Excerpts

Appellant'. Brief

Appellee'. Brief

7

Appellant'. Reply Brief

Other:

78

0.1

54.6

Total sls4·6

:J

Costs are tned in tbe amount of S r~j--:-llm

c5l.\ LL 0 Costs are hereby tned in the amouDt of $

I

this

State of
- - - - - - - COUDiy of Travis

/).5-w..

B:YUW~ l?a2 J day o~

• 2-DIL .

~Deputy Clerk

I Rance L. Craft

, do hereby swear UDder penalty of perjury that the services for which fees have beeD charged were

incurred in this action and that the services for which fees have beea charged were actually aDd Decessarily performed. A copy of this Bill ofCosts was this day mailed to

opposing couaseJ. with postage fully prepaid thereon. This 6th

day of June

, .=2""0..;.;12=--_ _ _•

IS/RanceLCraft -- -- - - - -

*SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS

(Signatare) Attorney for Defendants-Appellees

 
 Case: 11-40128 Document: 00511874819 Page: 1 Date Filed: 06/01/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Unl..dS..... C.urt.fApp••I. Fifth Circuit

F I LED

June 1, 2012

No. 11-40128

Lyle W. Cayce Clerk

PRISON LEGAL NEWS, a non-profit, Washington Corporation,

Plaintiff - Appellant v.

BRAD LIVINGSTON, in his official capacity as the executive director of the Texas Department of Criminal Justice; JENNIFER SMITH; RAMONA CREEK, in her individual capacity; SUE WEEKS, in her individual capacity,

Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas
Before DeMOSS, CLEMENT, and ELROD, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:
Prison Legal News (''PLN''), a non-profit corporation, brought this § 1983 action against the Texas Department of Criminal Justice ("TDCJ") and three individual TDCJ officials (with TDCJ, the "Defendants") for alleged First Amendment and due process violations in connection with TDCJ's censorship of five books PLN wishes to distribute to inmates in the Texas prison system. The district court granted summary judgment to the Defendants, and we now AFFIRM.

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No. 11-40128 FACTS AND PROCEEDINGS 1. TDCJ's Book-Review Procedures As part of a comprehensive system of processing mail addressed to prisoners, mail-room employees at each of TDCJ's 96 prison units review incoming books for content that may cause problems in TDCJ facilities. Individual defendants Ramona Creek and Sue Weeks are mail-room workers. When a book arrives, the mail-room employees first check to see whether the title is listed in the TDCJ database. The database includes books that have previously been sent to TDCJ inmates and reviewed by TDCJ personnel. If the book is in the database, it is shown as having been either approved or denied, and the mail-room stafffollow the existing designation without conducting a new reVIew. If the book is not in the database, the mail-room employee adds it to the database and conducts a review for content deemed inappropriate for the prison population. TDCJ's "Uniform Offender Correspondence Rules" (the "Policy") set forth the following content-based reasons that a book should be rejected: 1) It contains contraband that cannot be removed; 2) It contains information regarding the manufacture of explosives, weapons, or drugs; 3) It contains material a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or [security threat group] activity; 4) A specific determination has been made the publication is detrimental to offenders' rehabilitation because it would encourage deviant criminal sexual behavior; 5) It contains material on the setting up and operation of criminal schemes ...;
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No. 11-40128 6) It contains sexually explicit images. The Policy also prohibits rejecting books for certain content. For example, the Policy provides that TDCJ should not reject a book solely because it advocates legitimate use ofthe prison grievance system or criticizes prison authorities. The parties agree that the Policy, which is a revised version of the rules established in a consent decree that the district court approved in 1983 and vacated in 2002, is facially constitutional. TDCJ has no other written guidelines for censoring books. Purportedly applying the Policy, the mail-room employee reviewing an incoming book makes an initial decision whether the book should be approved or denied. At present, over 92,000 books are in the database, and approximately 80,000 of those are approved. If the reviewing employee approves the book, he delivers it to the addressee. TDCJ has no automatic review procedure for approvals, and no sender or inmate has a reason to request an appeal, so initial approval decisions by mail-room staff are, at least in practice, final. For this reason, mail-room workers are encouraged to "err on the side of caution" and deny books they believe might be problematic. Ifmail-room stafffind content they determine to be objectionable in a new book, they deny the book without reviewing the book's remaining content or attempting to weigh the objectionable content against permissible content. Staff record in the database that the book was "denied" and the reason for the denial, with citations to specific pages. Mail-room employees receive training and supervision on the Policy from the Mail System Coordinators Panel (''MSCP''), the body that coordinates the prison mail system. Individual defendant Jennifer Smith is the Program Director in charge of the MSCP. MSCP attempts to provide guidance to mail-room staff in complying with the First Amendment.
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No. 11-40128
When a book is initially denied by mail-room staff, TDCJ sends a written notice to the prisoner and the book's sender' that (1) states that the book has been denied for content, (2) identifies the page(s) containing the objectionable content and the reason it is objectionable, and (3) explains how to appeal the mail-room's decision. Either the prisoner or the sender may appeal the denial of the book.
An appeal of a new book is sent to TDCJ's Director's Review Committee ("DRC"), a body ofTDCJ administrators. DRC typically delegates the appeal to a member of the MSCP, the body headed by Smith. A single MSCP member reviews the book, purportedly applying the criteria listed in the Policy. Generally, the MSCP member will either approve or deny the book, and such a decision is final. If the MSCP member is uncertain whether the book should be denied, a second MSCP member reviews the book. Ifthe two MSCP members do not agree, the book is referred to the DRC as a whole for final review. Like the mail-room employees, the MSCP/DRC "do[es] not attempt to determine whether the remainder of the book contains other content which is not in violation of policy or which would 'outweigh' [the objectionable content]."
During this appeals process, the MSCPIDRC reviews only the denial form and the book itselfin reaching its decision. The "appellant" inmate or sender has no formal opportunity to participate in the appeals process, either at a hearing or by submitting written arguments. Essentially, the right to appeal is only the right to request additional review from TDCJ. The DRC sends the parties involved written notice of the decision. An approved book is delivered to the prisoner. The appeal and its result are noted in TDCJ's book database. A list of
1 The Policy originally stated that the prisoner and "the editor and/or the publisher" would receive notice and an opportunity to appeal. TDCJ alleges that in practice, it always gave notice to the book's sender rather than its editor or publisher. In February 2010, TDCJ amended the Policy to reflect this practice, expressly extending notice and appeal rights to a book's "sender." Prisoners may receive publications only from publishers and booksellers.
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No. 11-40128 newly approved and denied books is posted in each unit's law library to inform prisoners of decisions from the current and previous month.
Mter a book's denial has been upheld by a final DRCIMSCP decision, TDCJ does not send a denial notice to senders of subsequent copies of the book. The mailroom sends notice to the prisoner addressee only for the purpose of seeking instructions on how to dispose of the denied book. 2. PLN's Books
PLN is a non-profit organization whose core mISSIon IS "informing prisoners about their rights." PLN publishes Prison Legal News, a monthly magazine about prisoners' rights. TDCJ allows prisoners to subscribe to the magazine. PLN also distributes approximately 50 books, covering a variety of subject matters, that it believes are helpful to prisoners. Relevant to this appeal, TDCJ has excluded from its facilities five of the books PLN distributes: Prison Masculinities, Don Sabo, et aI., eds., (2001); The Perpetual Prison Machine: How America Profits from Crime, Joel Dyer (1999); Lockdown America: Police and Prisons in the Age of Crisis, Christian Parenti (2000); Soledad Brother: The Prison Letters of George Jackson, George Jackson (1970); and Women Behind Bars: The Crisis of Women in the U.S. Prison System, Silja J.A. Talvi (2007).
Prison Masculinities is a collection of essays from various authors about prison conditions. A mail-room employee denied the book in 2001 because pages 128--31 "contain rape" and pages 194 and 222 "contain racial material." The prisoner addressee appealed and the DRC upheld the denial. In 2009, a TDCJ prisoner ordered a copy of the book from PLN, and it was rejected as a matter of course because it was marked as denied in the TDCJ database.
The offending pages of Prison Masculinities describe incidents of prison rape in detail, including passages describing how the author was ''raped and beaten by Blacks as a punishment for permitting [himself] to be raped by Whites," assaulted by "a huge gang" that "took turns raping us anally and orally
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No. 11-40128 simultaneously," forced to perform fellatio, urinated upon during a rape, and forced to drink urine during a "mass rape." The "racial material" that was cited in the denial decision included racial slurs and an account of a prison guard "calling [a prisoner] a 'nigger' as the other guards laugh[ed]."
According to PLN, The Perpetual Prison Machine is a "critique of the prison industry." Mail-room staff denied the book in 2000 because the description of rape on page 45 "encourage[s] . . . deviant criminal sexual behavior." The prisoner addressee appealed and the denial was upheld by the DRC. The offending page described two rapes, including details about being held down and subjected to anal and oral sex simultaneously.
In 2009, two prisoners ordered copies of The Perpetual Prison Machine from PLN. The mail-rooms denied the book for the reason listed in the database, described above, and, consistent with its normal procedures, sent notice to the prisoners but not to PLN.
Lockdown America is a history of American prison expansion, beginning in the 1960s. A mail-room employee reviewed and denied the book in 2000. The denial was appealed and upheld by the DRC. Lockdown America was denied because page 206 contains "racial material." In discussing California's prison system, this page describes racist prison-guard organizations and racial tension between guards and prisoners. No TDCJ prisoner ordered Lockdown America from PLN within the time frame relevant to this suit.
Soledad Brother is a collection of letters by George Jackson, a member of the Black Panthers who was imprisoned in California's Soledad prison in the 1960s. According to California prison officials, the book is used by the "Black Guerilla Family" prison gang to convey its ideology to recruits. In re Furnace, 110 Cal. Rptr. 3d 820,823 (Cal. Ct. App. 2010). A mail-room employee reviewed and denied the book in 2005. The denial was appealed and upheld by the DRC. The reason for the 2005 denial was that racial material appears in the
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No. 11-40128 introduction on page xxiii. One paragraph contains the words "whitey" and ''honky.''
In July 2010, Smith removed Soledad Brother from the book database so that it was not listed as approved or denied, and testified that she would not have denied the book based solely on the page cited by the original denial decision. Soon thereafter, PLN sent a copy of Soledad Brother to a prisoner. A mail-room employee denied the book. Because Smith had removed the previous denial indicator from the database, the mail-room sent written notice of the denial to the prisoner and PLN, just as in the case of a book reviewed for the first time, but PLN did not receive the notice. The prisoner did not appeal. The reasons given for the 2010 denial were that certain pages contain racial slurs; and the entire book advocates the overthrow of prisons by riots and revolt.
Later in 2010, the publisher of Soledad Brother sent a copy of the book to another TDCJ prisoner. The mail-room denied the book for the reasons listed in the database, and because the 2010 denial had not yet been appealed and upheld by the DRC, TDCJ sent written notice to the prisoner and the publisher. The prisoner appealed the denial, which was upheld by the DRC. No TDCJ prisoner ordered Soledad Brother from PLN within the time frame relevant to this suit.
PLN describes Women Behind Bars as an "expose" on the treatment of women in prisons. A mail-room employee reviewed and denied the book in 2008 because page 38 describes sex with a minor, which would "encourage deviant criminal sexual behavior." Neither the prisoner nor the sender (amazon.com) appealed. Page 38 contains the sentence: "The dark secret of her life was that she had been forced to perform fellatio on her uncle when she was just four years old." The prisoner addressee notified the book's author, Silja J.A. Talvi, who notified PLN, that the book had been denied. Thereafter, PLN sent an unsolicited copy of Women Behind Bars to the same prisoner as a means of
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No. 11-40128 "Testing for Censorship." The mailroom denied the book for the reason listed in the book database.
Later in 2008, an unknown sender mailed a copy of Women Behind Bars to another TDCJ prisoner. The book was denied, the prisoner appealed, and the denial was upheld by the DRCIMSCP. Around the same time, PLN sent unsolicited copies ofthe book to numerous TDCJ prisoners to test for censorship. Silja's assistant asked PLN to send copies of Women Behind Bars to eight TDCJ prisoners "to see what happens." PLN also sent unsolicited copies of Women Behind Bars to other TDCJ prisoners, asking them to send PLN copies of denial notices that they receive.
In July 2010, Smith re-reviewed Women Behind Bars and determined that it should be approved for prisoners, even though she had stated in an answer to an interrogatory only a few months earlier that "no one in my office would have felt any doubt about denying the book" because it "describes deviant sexual behavior with a minor, [and] it would have been standard practice for the MSCP staff member who inspected this book to deny it." Following Smith's re-review, the book is listed as approved in TDCJ's database. 3. Procedural History
Based on the exclusion decisions described above, PLN filed suit against the Defendants pursuant to § 1983, alleging First Amendment and due process violations and seeking damages and an injunction requiring TDCJ to allow PLN's books into its facilities. The district court granted the Defendants' qualified-immunity motion on the due process claims against the individual defendants on the grounds that any right ofsubsequent senders to receive notice was not clearly established. The parties filed cross-motions for summary judgment on the remaining claims. The only factual issue specifically identified was whether PLN received notice and an opportunity to respond when TDCJ personnel denied a prisoner access to a copy of Soledad Brother sent by PLN.
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No. 11-40128 PLN noted, however, that this fact might not be material. The district court granted Defendants' motion and denied PLN's. The court dismissed PLN's claims regarding LockdownAmerica and Soledad Brother, which no prisoner had ordered from PLN, for lack of standing on the grounds that PLN has no First Amendment right to send books to prisoners who have not requested them.2
The district court then held that Defendants did not violate PLN's First Amendment rights by denying prisoners access to the books Women Behind Bars, Prison Masculinities, and The Perpetual Prisoner Machine. Finally, the district court dismissed PLN's due-process claims against TDCJ as moot based on the recent change to TDCJ's written procedures providing notice and the opportunity to appeal to senders rather than editors or publishers. The court determined that this change satisfied any due process requirements. The district court entered a final judgment dismissing the case, and PLN timely appealed.
STANDARD OF REVIEW We review a grant of summary judgment de novo, applying the same standards as the district court. Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). There is no genuine issue for trial "[iJf the record, taken as a whole, could not lead a rational trier offact to find for the non-moving party." Kipps v. Caillier, 197 F.3d 765, 768 (5th Cir. 1999). We view the evidence in the light most favorable to the nonmoving party. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).
DISCUSSION I. First Amendment Claims
2 The court declined to dismiss PLN's claims regarding another unordered book, Women Behind Bars, because some prisoners had expressed interest in it after PLN had sent it to them unsolicited.
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No. 11-40128 1. Unsolicited Books
The district court concluded that the FirstAmendment does not guarantee the right of outsiders to send unsolicited communications to prisoners. On that basis, the court determined that PLN lacks standing to bring claims related to TDCJ's censorship of Lockdown America, Soledad Brother, or Women Behind Bars because no prisoner had requested a copy of these titles from PLN prior to the filing of this lawsuit. TDCJ argues (1) that the district court was correct to deny PLN standing on this basis and (2) even if PLN has standing, its claims relative to these three titles should lose on the merits. TDCJ is incorrect on both points.
a. Standing Even if the First Amendment did not guarantee PLN the right to send unsolicited mail to prisoners, that would not destroy PLN's standing to bring its claims. To have standing at the summary judgment stage, PLN must present evidence of specific facts that, if true, would demonstrate an injury in fact that is fairly traceable to the defendant's conduct and likely to be redressed by a favorable ruling. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). TDCJ contends that the constitutional "injury in fact" requirement includes the additional requirement that a plaintiffs injury in fact must be "caused by the violation of legal right." (quoting Lewis v. Casey, 518 U.S. 343, 353 nA (1996». From this premise, TDCJ argues that PLN lacks standing to bring claims regarding the unsolicited books simply because the First Amendment does not, in its view, protect the right PLN seeks to vindicate. We first note that TDCJ's argument would, in every case, condition standing on a full and favorable determination on the merits ofa plaintiffs claim. But a plaintiffneed not prevail on the merits before he can establish his standing to sue. For that reason, TDCJ's argument is clearly incorrect.
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No. 11-40128 Government interference with one's attempts to sell or distribute written material unquestionably satisfies Article Ill's injury-in-fact requirement. See, e.g., Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6 (1963) (''The constitutional guarantee of freedom of the press embraces the circulation of books ....").3 PLN's interest in distributing books to TDCJ's inmates-which is precisely the type of interest at the core of First Amendment protections-is more than sufficient to support its standing to sue. TDCJ cites Lewis v. Casey to support its argument that Article III standing requires an injury-in-fact that is caused by the violation ofa legal right. TDCJ misunderstands the Supreme Court's standing discussion in Lewis. See 518 U.S. at 351-53 & n.4. Lewis involved an inmate's claim that he was denied his constitutional right of access to the courts by the poor quality of his prison's legal library. In that context, the Supreme Court said that a deficient law library, though it might be an "injury in fact," was not a "relevant injury in fact" because there is not, and the plaintiff did not even argue for, a free-standing right to access a legal library. The right to access legal materials derives from the right to access the courts, so a "relevant" injury in Lewis had to be one that was at least allegedly caused by being denied access to the courts, i.e., lost or impeded legal claims. Consequently, the plaintiff in Lewis lacked standing because he did not even allege an injury that resulted from the alleged legal violation. Cf Allen v. Wright, 468 U.S. 737, 751 (1984) (noting that standing requires a "plaintiff [to] allege personal injury fairly traceable to the defendant's allegedly unlawful conduct" (emphasis added». Unlike the plaintiff in Lewis, PLN suffered an injury-denial of the opportunity to communicate with certain inmates-that resulted directly from the government action it challenges as illegal. Aside from its misplaced reliance
3 In fact, Bantam Books took as its starting point that book distributors have standing to challenge censorship schemes. See 372 U.S. at 64 n.6.
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No. 11-40128 on Lewis, TDCJ presents no argument as to why this injury fails to meet Article Ill's injury-in-fact requirement, and it is well recognized that booksellers have standing to challenge censorship schemes. PLN's asserted injury is neither speculative nor abstract. Thus, PLN has standing to raise its First Amendment claims regarding the censorship of Lockdown America, Soledad Brother, and Women Behind Bars.
b. Merits TDCJ's argument that the First Amendment does not protect the right of outsiders to send unsolicited mail to inmates is unpersuasive. It is wellestablished that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution, nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the 'inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 84, 94-99 (1987» (alteration in original) (citation and internal quotation marks omitted). "[A] prison inmate retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Turner, 482 U.S. at 95 (second alteration in original) (internal quotation marks omitted). Specifically, prisoners and their correspondents enjoy the protections ofthe First Amendment except to the extent that prison regulations curtailing those protections are "reasonably related to legitimate penological interests." Id. at 89. Receiving unsolicited mail is not, by itself, intrinsically "inconsistent with [one's] status as a prisoner" or an obvious threat to valid penological objectives, and TDCJ does not allege that it is. Thus, TDCJ's argument would carve away a large chunk of the First Amendment's protections even without so much as an assertion that those protections are in conflict with legitimate penological interests. TDCJ's analysis essentially ignores the framework provided in Turner and applied in Thornburgh: as a default, prisoners and their correspondents
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No. 11-40128 have all the constitutional rights ofthose outside the prison context unless those rights are curtailed by a reasonable prison regulation. Following Turner and Thornburgh, we decline to go beyond the limitations imposed by TDCJ's regulations and deny prisoners rights that TDCJ has not found it necessary to curtail.
The government's briefrelies heavily on an illicit inference drawn from the Supreme Court's statement in Thornburgh that "there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point ofview have a legitimate First Amendment interest in access to prisoners." 490 U.S. at 408.4 From this sentence, TDCJ concludes that First Amendment protections must not extend to unsolicited communications. The quoted sentence simply cannot do the heavy lifting TDCJ asks of it. The qualified language is best explained as tracking the specific facts before the Court in Thornburgh. Recognizing one right as obvious hardly demonstrates that a related right does not exist. In any event, the inference TDCJ attempts to draw is directly contrary to the whole approach set forth in Turner and followed consistently since: prisoners and those ''reaching out" to them enjoy generallyexisting constitutional rights unless those rights interfere with prison regulations reasonably related to legitimate penological interests. It is therefore unsurprising that TDCJ's position was rejected by the only court of appeals decision cited by either party that squarely addresses the issue. Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011) ("A First Amendment interest in distributing and receiving information does not depend on a recipient's prior request for that information.").
4 PLN also argues that the intended recipients of its books have ''willingly sought" PLN's point of view. PLN contends that it only sent books to prisoners who had subscribed to its magazine or otherwise been in contact with PLN.
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No. 11-40128 TDCJ correctly argues that the rights ofoutsiders wishing to communicate with prisoners are correlative to the rights of prisoners and must be analyzed under the same standard. But TDCJ is wrong to conclude that outsiders' rights are therefore strictly dependent on a prior request from an inmate. Rather, the correlative nature of the rights indicates that, in the absence of a prison regulation to the contrary, prisoners have the right to receive, and outsiders have a correlative right to send, unsolicited communications. See Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002) (recognizing a prisoner's right to receive an unordered "gift publication''). The general right to receive unsolicited communications free from government interference is not only well-established, it is also quite valuable, a fact that is particularly apparent in the prison context: prisoners have an obvious interest, for example, in receiving unsolicited mailings from family members attempting to reconcile, ministries reaching out to convicts, and those attempting to offer legal assistance, because prisoners would often be practically unable to initiate such contact themselves. Cf Thornburgh, 490 U.S. at 407 (recognizing the qualified rights oflawyers, journalists, families, and friends to access prisons "though the written word" as "undoubtedly" valid without conditioning such rights on prisoner solicitation). For the above reasons, PLN has standing to bring claims related to the three books it sent without a prior request. We also reject TDCJ's argument that the First Amendment offers no protection for unsolicited communications to prisoners. Because TDCJ's policies do not generally treat unsolicited books differently from solicited ones, we do not address whether a policy of rejecting all unsolicited books would be defensible under the standards delineated in Turner and Thornburgh. 2. Turner-Thornburgh Analysis "[A] prison inmate 'retains those [constitutional] rights that are not inconsistent with his status as a prisoner ....'" Turner, 482 U.S. at 95 (quoting
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No. 11-40128 Pell v. Procunier, 417 U.S. 817, 822 (1974» (second alteration in original). Accordingly, prisoners and their correspondents enjoy the protections ofthe First Amendment except to the extent that prison regulations curtailing those protections are "reasonably related to legitimate penological interests." Thornburgh, 490 U.S. at 404 (quoting Turner, 482 U.S. at 89). In assessing the "reasonableness" of a prison regulation that infringes on First Amendment interests, a court must consider four factors: (1) whether the regulation is "rationally related" to a legitimate penological goal; (2) whether alternative means of exercising First Amendment rights remain open; (3) the impact that accommodating the asserted right will have on other prisoners and prison employees; and (4) whether there are easy and obvious alternative means of accommodating the asserted right. Id. at 414-18. "[R]ationality is the controlling factor," Mayfield v. Tex. Dep't of Criminal Justice, 529 F.3d 599, 607 (5th Cir. 2008), and the remaining factors are best understood as indicators ofrationality. See Scott v. Miss. Dep't of Corr., 961 F.2d 77, 80-81 (5th Cir. 1992).
The Supreme Court has also instructed that it is "important to inquire whether prison regulations restricting inmates' First Amendment rights operated in a neutral fashion." Thornburgh, 490 U.S. at 415 (quoting Turner, 482 U.S. at 90). This neutrality requirement means that "the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression." Id. (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974». Prison regulations that "draw distinctions between publications solely on the basis oftheir potential implications for prison security" are facially neutral in the relevant sense. Id. at 415--16.
PLN bears the burden of showing that the regulations, as applied, are not reasonably related to legitimate penological objectives, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003), or that they are an "exaggerated response" to such concerns. Turner, 482 U.S. at 87. Moreover, courts must give "substantial"
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No. 11-40128 deference to prison officials' judgment. See, e.g., Overton, 539 U.S. at 132. TDCJ must do more, however, than merely show "a formalistic logical connection between [its censorship decisions] and a penological objective," Beard v. Banks, 548 U.S. 521, 535 (2006); it must "showD a reasonable relation," in light of the ''importance of the rights [here] at issue." Id. at 533. To be entitled to summary judgment, then, the record must be "sufficient to demonstrate that the Policy is a reasonable one." Id.
PLN mistakenly (and extensively) relies on this court's decision in Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978). In analyzing the constitutionality of an earlier version of TDCJ's mail regulations, Guajardo applied the test set out in Martinez, 416 U.S. 396. But Thornburgh partially overruled Martinez, limiting its application to ''regulations concerning outgoing correspondence," and adopted the Turner standard, which is more deferential to prison administrators. 490 U.S. at 413. Thus,
Thornburgh must be read as modifying ... Guajardo . .. in regard to prison regulations or practices which deal with prisoner mail. That is, in determiningthe constitutional validity ofprison practices that impinge upon a prisoner's rights with respect to mail, the appropriate inquiry is whether the practice is reasonably related to a legitimate penological interest. Brewer v. Wilkinson, 3 F.3d 816, 824 (5th Cir. 1993). PLN makes much of the fact that a post-Thornburgh decision of this court cited Guajardo. But in citing Guajardo, the court sought only to demonstrate that the challenged regulations were undoubtedly facially constitutional because they had been upheld under the Martinez standard, which was less deferential to prisons. PLN is plainly wrong that Guajardo is controlling precedent. a. Reasonableness of Specific Exclusion Decisions
i. Prison Masculinities and The Perpetual Prison Machine
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No. 11-40128 Both of these books contain graphic depictions of prison rape. Smith testified in her deposition that such descriptions constitute a threat to prison safety and security because prisoners could use the descriptions as templates to commit similar rapes. PLN argues that TDCJ has not presented evidence that a book containing depictions of sexual abuse has ever incited a copycat crime. But TDCJ is correct that it is not required to prove that the censored books would cause problems. PLN bears the burden to show that there is not a reasonable relationship between TDCJ's practice and legitimate penological objectives. See Overton, 539 U.S. at 132 (''The burden ... is not on the State to prove the validity of prison regulations but on the prisoner to disprove it."). Moreover, the Supreme Court has specifically acknowledged that prison policies may be legitimately based on prison administrators' reasonable assessment of potential dangers. See, e.g., Thornburgh, 490 U.S. at 407 ("[P]rison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison."). Pursuant to the inmate-education requirements of the Prison Rape Elimination Act of 2003 ("PREA"), TDCJ has its own program for educating prisoners about sexual abuse, so it does not, as PLN implies, deny inmates information about the existence of this problem. PLN argues that TDCJ's basis for denying these books is illegitimate because other books containing depictions ofprison rape have been approved. PLN specifically contends that the rape scene in Stephen King's novella Rita Hayworth and the ShawshankRedemption, which appears in multiple literary compilations that have been approved by TDCJ, is just as graphic as the designated passages of Prison Masculinities and The Perpetual Prison Machine. Aside from pointing to this alleged inconsistency, PLN has not produced specific evidence demonstrating that TDCJ's censorship ofPrison Masculinities
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No. 11-40128 and The Perpetual Prison Machine is "arbitrary or irrational." Freeman v. Tex. Dep't ofCriminal Justice, 369 F.3d 854,861 (5th Cir. 2004) (quoting Turner, 482 U.S. at 90). PLN argues that it and the authors of these books have no intention to incite sexual abuse, but it has not presented evidence that the depictions of rape contained in the books pose no threat to safety or rehabilitation. Instead, PLN only pits its own assessment of the likely consequences of allowing the books into prisons against the assessment of the TDCJ officials. It is, of course, extremely difficult for courts to judge whose assessment is more likely correct, which highlights the importance of the deference that is accorded to prison administrators applying reasonable policies.
ii. Soledad Brother TDCJ now excludes Soledad Brother because it contains racial slurs and "advocates the overthrow of prisons by riot and revolt." According to California prison officials, the book is used by the "Black Guerilla Family" prison gang to convey its ideology to recruits. PLN denies that the book advocates the violent overthrow ofprisons, but does not significantly elaborate on the book's viewpoint or contents. PLN acknowledges that the book and its author are controversial, and arguably concedes that the book can be read as promoting race riots, contending that "a 'reasonable person' ... could not conclude Soledad Brother's sole intent is to encourage race riots." Though PLN disagrees with TDCJ's assessment of the book and its likely effects on a prison population, it has not presented evidence demonstrating that TDCJ's exclusion ofthe book is irrational. TDCJ's exclusion decision is therefore entitled to deference.
iii. Women Behind Bars Because TDCJ no longer censors Women Behind Bars, the relevant question is whether its past exclusion of the book was reasonably related to TDCJ's legitimate penological interests. TDCJ censored the book because it
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No. 11-40128 recounts the sexual molestation of a young child, which Smith and Weeks testified could impair the rehabilitation of sex offenders or cause disruptive outbursts by prisoners who were similarly victimized. Despite this explanation, Smith has determined that Women Behind Bars should no longer be excluded. Presumably, the decision to approve the book indicates that Smith does not believe the once-censored passage actually poses a threat to TDCJ's legitimate goals, but this reassessment alone does not establish that the past exclusion was necessarily unreasonable.
PLN again bases its objection to the book's exclusion on a comparative analysis with other books that contain depictions of sex with a child or discuss erotic attraction to children. TDCJ does not directly respond to these comparisons, but it is relevant that the specific examples PLN relies upon are fictional works-Lolita and Death in Venice-which might make them less troubling than the biographical account in Women Behind Bars.
Though it seems unlikely that the brief, non-explicit passage in Women Behind Bars would create a significant threat to a prison's legitimate goals, in light of the Supreme Court's recognition in Thornburgh that "prison officials may well conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for ... order and security," 490 U.S. at 407, PLN must do more to meet its burden than merely assert that TDCJ's policy is unreasonable. As with the other books, PLN has not produced evidence that contradicts the rationality ofTDCJ's exclusion of Women Behind Bars.
iv. Lockdown America
TDCJ denied this title because it contains racial slurs and descriptions of racial tensions in prisons, including racially motivated crime by guards against prisoners. Smith testified that books describing racial tensions present a threat of violence because of the existence of race-based prison gangs and the
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No. 11-40128 prevalence of racial discord. The specific passage cited to justify the exclusion decision reads: "Another gang of screws [prison guards] at the California Institute for Men at Chino called itself SPONGE, a disgusting acronym for the equally disgusting name, 'Society for the Prevention of Niggers Getting Everything.'" A one-letter notation on the book's database page indicates that it was denied because it "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption.,,5
PLN essentially argues that TDCJ's purported concern over exacerbating racial tensions is merely a pretext for censoring a book that is sharply critical of the prison system. In support of this argument, PLN notes that certain overtly racist books-including Hitler's Mein Kampf and David Duke's Jewish Supremacism-are permitted into TDCJ facilities. In contrast to these obviously racist books, PLN argues that LockdownAmerica is "anti-racist," as it criticizes the racism that afflicts many prisons. The distinctive aspect of Lockdown America is that it discusses racial tensions specifically in the prison context.
We recognize the possibility that censorship ofviewpoints critical ofprison systems or prison administrators may disguise itself in a policy of excluding books depicting guard-prisoner conflict on the purported basis that they are likely to incite similar conflict. But we cannot say that it is unreasonable for prison administrators to conclude that books describing racial tensions in the prison context-as opposed to racial tensions more generally-are more likely to provoke prison violence. Thus, in the absence of specific evidence indicating that TDCJ excluded the book to censor its criticism of prisons, as opposed to
6 PLN misconstrues this provision by interpreting it to mean that a book is properly subject to exclusion only if a reasonable person would conclude that, in its entirety, the book's sole purpose is to achieve the breakdown of prisons. Rather, the language of the provision allows for exclusion of a book that contains any material written for such a purpose.
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Case: 11-40128 Document: 00511874819 Page: 21 Date Filed: 06/01/2012
No. 11-40128 excluding it because of its potentially harmful effects, TDCJ's decision does not run afoul of Turner.6 We therefore agree with TDCJ that it is relevant that TDCJ allows a multitude of publications critical of prisons into its facilities, including PLN's newsletter and the majority ofthe books it sends to prisoners.
b. Other Turner Factors The remaining Turner factors decidedly favor TDCJ.
i. Alternative means of exercising the right The second Turner factor-"whether there are alternative means of exercising the right that remain open"-weighs heavily in favor of TDCJ. The challenged policy leaves prisoners and PLN ample alternatives for exercising their First Amendment speech rights. In evaluating the availability of alternatives, the Supreme Court has emphasized that the right in question must be construed "expansively," meaning that adequate alternatives need not be perfect substitutes for the curtailed right. Thus, in Turner, this factor counted in the government's favor where the regulation forbidding all inmate-to-inmate correspondence did "not deprive prisoners of all means of expression. Rather, it bar[red] communication only with a limited class of other people ...." 482 U.S. at 92 (emphasis added). Similarly, in Thornburgh the Court held that this factor was "clearly satisfied" because the challenged regulation, which gave federal prison wardens discretion to censor publications for content-based reasons, "permit[ted] a broad range of publications to be sent, received, and read." 490 U.S. at 418. And in O'Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987), in evaluating a regulation that prevented Muslim inmates from attending Jumu'ah, a religious ceremony necessarily held at a specific time on Friday
6 This is difficult to slice because what would obviously constitute content·based discrimination outside the prison context is undoubtedly permissible within it. Thus, the distinction we draw is less clear than the distinction between content·neutral and content· based discrimination. Even viewpoint discrimination is permissible in the prison context.
21

Case: 11-40128 Document: 00511874819 Page: 22 Date Filed: 06/01/2012
No. 11-40128 afternoons, the Court stated that the relevant question was "whether under these regulations respondents retain[ed] the ability to participate in other Muslim religious ceremonies." (emphasis added).
TDCJ's policy leaves open ample alternative avenues for PLN to express its views to Texas inmates. Prisoners are permitted to read PLN's newsletter and the majority of the books it distributes. Moreover, PLN is free to distribute countless other books that are allowed into the prisons and may choose to distribute new books that it considers suitable substitutes for communicating its message. PLN has not demonstrated that anything unique about the five books in question is fundamental to the communication of its message, and even if it had, that would not be controlling: the Court found adequate alternatives even in Turner and O'Lone, where prisoners were cut off from unique and irreplaceable activities---communicating with specific individuals and participating in a unique religious ceremony. See generally Thornburgh, 490 U.S. at 417-18. The alternatives left open to PLN to communicate its intended message to TDCJ inmates are extensive, providing countless options that must be considered more adequate substitutes for the excluded books than the substitutes considered sufficient in Turner and O'Lone. This factor therefore strongly indicates that TDCJ's practices are reasonable.
ii. Impact on others "The third factor to be addressed under the Turner analysis is the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison." Id. at 418. This factor sheds minimal additional light on the general reasonableness analysis. As the Court explained in Thornburgh: Where "the class ofpublications to be excluded is limited to those found potentially detrimental to order and security ... [and] [w]here ... the right in question 'can be exercised only at the cost of significantly less liberty and safety for everyone else, guards and other prisoners alike,' the courts should
22

Case: 11-40128 Document: 00511874819 Page: 23 Date Filed: 06/01/2012
No. 11-40128
defer to the 'informed discretion ofcorrections officials.'" Id. (quoting Turner, 482 U.S. at 90, 92) (internal citations omitted). In essence, because TDCJ's regulations are reasonably connected to order and security, this factor is satisfied.
iii. Easy alternatives [T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable .... [I]f aD [plaintiff] can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.
Turner, 482 U.S. at 90-91. PLN has not even suggested an alternative way of accomplishing the same penological objectives promoted by the challenged policy; rather, PLN has only suggested that little harm would result if TDCJ interpreted its policy more narrowly and simply allowed prisoners to receive the contested books. On this point, PLN's argument merely rehashes its disagreement with TDCJ's assessment ofthe threat posed by allowing the books into the prisons. Because PLN has not proposed an "obvious, easy" alternative, and none is apparent, this factor also weighs in favor of TDCJ.
c. Other Prisons' Policies The Supreme Court has stated that "the policies followed at other well-run institutions [are] relevant to a determination ofthe need for a particular type of restriction." Martinez, 416 U.S. at 414 n.14.7 PLN argues that with the exception of Soledad Brother, no other prison system in the country censors the books at issue, but this assertion is not fully supported by evidence in the record. PLN
7 TDCJ argues that Thornburgh implicitly held that the practices of other prisons are irrelevant to the reasonableness analysis, but that is an unjustified conclusion. Though Thornburgh provides a potential explanation why a censorship decision might be reasonable despite being an outlier, it does not make the practices of other prisons irrelevant to the reasonableness analysis. TDCJ would likely find it highly relevant ifmany other prisons also censored PLN's books.
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No. 11-40128
relies only on its own experience and on the personal knowledge of three of its authors to substantiate its claim. But as PLN is at pains to point out elsewhere in its brief, it could very well be unaware that certain prisons are censoring its books.8 PLN has not presented enough evidence on the practices of other prison systems for this consideration to influence the resolution of its claims.
d. Consistency and Neutrality PLN argues that TDCJ's policy, taken as a whole, is not reasonably related to legitimate objectives because it is applied inconsistently. TDCJ essentially concedes that the policy generates inconsistent results, but attempts to argue that inconsistencies are irrelevant to the Turner reasonableness analysis. Both parties are incorrect. The inconsistent results of TDCJ's policy are partly attributable to the enormous diffusion ofresponsibility for making initial censorship decisions. The roughly 500 mailroom employees at TDCJ's 96 prison units are all responsible for making those initial decisions, and in the case of approvals, there is no procedure for ever reviewing their decisions. Thus, as TDCJ admits, some inconsistencies are inevitable. TDCJ defends this outcome by arguing that the price of greater consistency would likely be more censorship. TDCJ relies on Thornburgh for the proposition that inconsistencies are not grounds for granting PLN relief: "The exercise of discretion called for by these regulations may produce seeming 'inconsistencies,' but what may appear to be inconsistent results are not necessarily signs of arbitrariness or irrationality."
8 Relatedly, PLN offered Ron McAndrew as an expert witness based on his career as a corrections officer and warden in Florida's prison system. McAndrew's report arguably supports PLN's contention that other prisons likely do not find it necessary to censor the books at issue. TDCJ moved to exclude McAndrew's testimony, raising questions about his competency and methodology, but the district court never ruled on its admissibility, making it an unsound basis for reversing summary judgment. Even if admitted, McAndrew's report carries little weight because it is little more than a recitation that he would not have excluded PLN's books for the reasons cited by TDCJ. As the district court correctly noted, "[m]ere disagreements do not demonstrate irrationality of [TDCJ's] decisions."
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Case: 11-40128 Document: 00511874819 Page: 25 Date Filed: 06/01/2012
No. 11-40128 490 U.S. at 417 n.15. But the regulations considered in Thornburgh were crucially different from those considered here. In Thornburgh, the Federal Bureau of Prisons ("FBP") regulations gave individual wardens the discretion to exclude books for content-based reasons from their own facilities. In that context, certain inconsistencies arose across the various facilities within the FBP. The Supreme Court concluded that such inconsistencies were not fatal precisely because the regulations allowed for facility-specific analysis that accounted for the particular circumstances in which each warden was situated. Id. at 417 (noting that the FBP wardens made their censorship decisions "under the conditions of a particular prison at a particular time"). In this regard, the TDCJ regulations are completely unlike those addressed in Thornburgh: rather than allowing a policy-maker to exercise discretion using a context-specific analysis applicable only to his own facility, TDCJ's censorship decisions apply indefinitely across all 96 of its units. Thus, any inconsistencies resulting from TDCJ's procedures are not subject to the same type of explanation as were the "seeming inconsistencies" discussed in Thornburgh. Id. at 417 n.15 (emphasis added). Moreover, the Court, which considered only the facial validity of the challenged FBP regulations, expressly noted that whether "variability in enforcement of the regulations stems solely from the censors' subjective views" was relevant to the as-applied challenge that would ''be considered on remand." Id.
On the other hand, the "seeming inconsistencies" addressed in Thornburgh were, at least in one sense, more obviously inconsistent than those about which PLN complains: in Thornburgh, certain federal prisons had excluded the very same book that others had allowed. This type of inconsistency does not exist in the TDCJ system because its exclusion decisions apply system-wide. Thus, the alleged inconsistencies at issue here are only arguable. Concluding that it is inconsistent to allow The Shawshank Redemption while excluding Prison
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Case: 11-40128 Document: 00511874819 Page: 26 Date Filed: 06/01/2012
No. 11-40128 Masculinities requires a subjective assessment ofeach book rather than a simple matching of the books' ISBN codes. These are precisely the types of subjective assessments that usually fall within prison administrators' discretion.
Ultimately, a limited amount of inconsistency at the margins of TDCJ's exclusion decisions is not enough to defeat the reasonableness of TDCJ's practices. PLN's individualized challenges must be viewed in the context of TDCJ's broader book-review scheme, which certainly bears a reasonable relationship to valid penological objectives. We recognize the possibility that inconsistencies could become so significant that they amount to a practical randomness that destroys the relationship between a regulation and its legitimate penological objectives, but PLN has not presented anything close to enough evidence to demonstrate such a severe problem with TDCJ's policies. We decline PLN's invitation to engage in one-to-one comparisons of a few specific books. While PLN is likely correct that TDCJ's procedures and practices could be improved, we agree with TDCJ's contention that the Constitution does not create a bright line concerning which specific books must be admitted into TDCJ's prisons. Numerous books will fall into a range of discretion, and it follows that TDCJ may reasonably exclude some books and allow others that may be judged to fall in that discretionary range.
e. Conclusion PLN has not presented sufficient evidence to survive summary judgment on its FirstAmendment claims. PLN has, at most, demonstrated that reasonable minds might differ on whether to permit certain books into a general prison population, which is very different from demonstrating that TDCJ's practices and exclusion decisions bear no reasonable relation to valid penological objectives. The principal Supreme Court precedents applicable to PLN's First Amendment claims, which all dealt with facial challenges to prison regulations, emphasize the need for according deference to the judgment of prison
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No. 11-40128 administrators, and we conclude that such deference must be at its zenith in the context of challenges to individualized decisions implementing a facially constitutional policy. Any other conclusion would require the federal courts to sit as permanent appeals councils reviewing every individual censorship decision made by state corrections institutions. II. Due Process Claims
PLN argues TDCJ's book review procedures violate its due process rights by failing to provide notice of denials occurring after a final denial by MSCPIDRC. The district court dismissed PLN's due process claims as moot based on a recent change in TDCJ's written policy concerning its review procedures. As explained above, in 2010 TDCJ amended the Policy to provide that denial notices should be sent to the "sender" rather than "editor and/or publisher," an amendment that TDCJ asserts brought its written policy into line with its longstanding practice. The district court concluded that this change in policy, by providing notice and the right to appeal to senders, mooted PLN's prospective due process claims for injunctive relief.
PLN correctly argues that the district court misapprehended the significance of the change to TDCJ's notice procedures. The district court apparently understood the change in policy to mean that a denial notice, and the accompanying right to appeal, would be sent to each sender of a book. TDCJ concedes that this is not the case, as it continues its existing practice of sending denial notices only until a final denial decision has been made by the MSCPIDRC and "does not permit further appeals about [a DRC-denied] book."
PLN argues that because TDCJ's censorship program curtails a liberty interest protected by the First Amendment, it is entitled to due process protections before TDCJ denies a book that it distributes. PLN specifically contends that it has an individualized right to notice and appeal the denial of a book it distributes, regardless of whether other senders have already appealed
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Case: 11-40128 Document: 00511874819 Page: 28 Date Filed: 06/01/2012
No. 11-40128 the same book's denial. TDCJ responds that requiring repetitive appeals for every new sender of a denied book would be burdensome and pointless, considering that the book review process is not individualized to the specific sender or intended recipient, but rather focuses only on whether the book's contents are suitable for the prison population generally.
PLN cites numerous cases recognizing that due process protections apply to certain censorship decisions in the prison context. In Procunier v. Martinez, the Supreme Court held that senders and addressees were entitled to basic due process protections-notice and an opportunity to be heard-before the California Department of Corrections could censor personal correspondence. 416 U.S. at 417-19. Decisions of the Fourth, Ninth, Tenth, and Eleventh Circuits have cited Martinez in recognizing that due process must accompany various decisions to exclude prison mailings. None ofthese cases, however, addressed the precise question at issue-whether subsequent senders ofidentical publications are entitled to notice and an opportunity to appeal a denial.
Martinez itselfis readily distinguishable. In that case, the Supreme Court considered whether procedural protections were required before a prison could censor personal letters between prisoners and outsiders. In such a case, each censorship decision was necessarily individualized: for each letter considered, a unique screening determination had to be made. No two letters were exactly alike, so the specifics of each one had to be evaluated before a censorship decision could be justified. On the other hand, TDCJ's contested policies pertain to censorship of mass-market books that are applicable throughout the Texas prison system, and censorship decisions are not individualized. Once a book is deemed inappropriate for the prison system, there is nothing new to evaluate the next time a copy of the book is sent to an inmate. The procedural requirements proscribed in Martinez are not therefore necessarily applicable.
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No. 11-40128 PLN cites cases from other circuits that extend Martinez to other types of mail beyond personal letters or other individualized correspondence. In Montcalm Publishing Corp. v. Beck, 80 F.3d 105 (4th Cir. 1996), the Fourth Circuit, relying on Martinez, extended due process protections to publishers whose magazines were excluded by the Virginia Department of Corrections (''VDOC''). Although the Fourth Circuit recognized that Martinez "specifically limited its consideration to regulations of 'direct personal correspondence between inmates and those who have a particularized interest in communicating with them,'" id. at 107 (quoting Martinez, 416 U.S. at 408), it stated: "Having recognized that [the magazine publisher] indeed has a constitutional interest in communicating with its inmate-subscribers, we cannot conclude that it is entitled to no process at all when VDOC prevents the subscribers from receiving Montcalm's publications." Id. at 109. In Jacklovich v. Simmons, the Tenth Circuit, in considering non-content based regulations limiting prisoner access to publications, agreed that "publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate-subscribers." 392 F.3d 420, 433 (10th Cir. 2004) (quoting Montcalm Publ'g, 80 F.3d at 106). The Ninth Circuit held that PLN was entitled to due process protections before its newsletter could be banned because it was considered bulk mail due to its postage rate. See Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001). TDCJ is correct that none ofthese cases directly addresses the question at issue--whether subsequent senders are entitled to notice and appeal even after an identical publication has been finally denied. TDCJ also is correct that the proper standard of review, contrary to PLN's suggestion, is the standard articulated in Turner, discussed above. See Washington v. Harper, 494 U.S. 210, 224 (1990) (applying the Turner standard to due process claims and emphasizing
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No. 11-40128 that it is "quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights"). Thus, TDCJ's procedures need not fully satisfy the traditional demands of due process if the procedures it employs are reasonably related to legitimate penological objectives.
TDCJ's procedures are reasonable and do not run afoul ofthe Due Process Clause. Mter a DRC-Ievel denial has become final, subsequent denials of identical publications amount to the routine enforcement of a rule with general applicability. Such subsequent denials are non-individualized-they neither reconsider the content of the denied book nor depend on the particular sender or addressee-so it is not even clear that due process is implicated by such decisions. TDCJ must be permitted to pass rules of general application, even ones that limit prisoner rights, without subjecting such rules to repetitive challenges every time they are applied. "There must be a limit to individual argument in such matters ifgovernment is to go on." Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (''Where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption.").
IfTDCJ's policies have any procedural infirmities, they would relate to the initial DRC-Ievel decision, not the treatment of subsequent senders. As the Fourth, Ninth, and Tenth Circuits have recognized, in the cases cited above, publishers have due process rights when a prison bans their publications. That is because, at the time of the initial denial, an individualized decision (with respect to the book's contents) must be made. At least arguably, TDCJ's DRClevel procedures fall short ofthe traditional requirements ofdue process because they do not give the appellant, whether the prisoner or the outsider, the right to participate in DRC's consideration of the appeal, even informally or through written submissions. See Grannis v. Ordean, 234 U.S. 385, 394 (1914) ("The
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No. 11-40128
fundamental requisite of due process of law is the opportunity to be heard."). MSCPIDRC reviews only the denial form and the book itself in reaching its decision. Importantly, PLN does not challenge the adequacy of the DRC review procedure--it only demands that it be afforded its own "appeal." Thus, the adequacy of the DRC review procedure is not properly before the court.
Finally, PLN argues that even if it is not entitled to appeal a previously denied book, due process requires that it at least be given notice of all denials. This argument is incorrect. Due process pertains to the right to participate in government decision making. The "notice" required by due process is notice of when, where, and how one can be heard before a decision becomes final. See Londoner v. Denver, 210 U.S. 373, 385 (1908) ("[D]ue process oflaw requires that ... [a party] shall have an opportunity to be heard, of which he must have notice ... .''). The right to receive notice exists only to effectuate the right to be heard, and therefore is inapplicable where a party has no right to participate in the decision-making process. Giving notice to a sender that his communication has been rejected may be a reasonable courtesy, but such notice is not a requirement of due process. III. Qualified Immunity
Qualified immunity protects public officers from suit if their conduct does not violate any "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A two-step analysis governs whether public officials are entitled to qualified immunity.
First, we must determine whether the facts, either as the plaintiff alleges or as proved without dispute, establish that the officer violated a clearly established constitutional right. . . . [I]f the plaintiff has alleged a constitutional violation, the court must next determine whether the official's conduct was objectively unreasonable under established law.
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No. 11-40128 Linbrugger v. Abercia, 363 F.3d 537, 540 (5th Cir. 2004) (internal quotation marks and citations omitted). As explained above, TDCJ has not violated PLN's due process rights, and the individual defendants are therefore entitled to qualified immunity.
CONCLUSION For the reasons glVen above, the judgment of the district court IS AFFIRMED.
32

 
 Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 1 of 14
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Corpus Christi)
CIVIL DOCKET FOR CASE #: 2:09−cv−00296

Prison Legal News v. Livingston et al Assigned to: Judge Janis Graham Jack Cause: 42:1983 Civil Rights Act
Plaintiff Prison Legal News a non−profit, Washington Corporation

Date Filed: 11/04/2009 Date Terminated: 01/05/2011 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Scott Charles Medlock Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: scott@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel E Manville Daniel E Manville PC PO Box 20321 Ferndale, MI 48220 248−890−4720 Fax: 248−556−5598 Email: daniel.manville@gmail.com ATTORNEY TO BE NOTICED
James C Harrington Texas Civil Rights Project 1405 Montopolis Dr Austin, TX 78741−3438 512−474−5073 Fax: 512−474−0726 Email: jch@mail.utexas.edu ATTORNEY TO BE NOTICED
Lauren Izzo Texas City Rights Project 1405 Montopolis Dr Austin, TX 78741 512−474−5073 Fax: 512−474−0726 Email: lauren.tcrp@gmail.com ATTORNEY TO BE NOTICED

V.
Defendant
Brad Livingston in his official capacity as the executive director of the Texas Department of Criminal Justice

represented by Celamaine Cunniff Office of the Atty Gen Law Enforcement Def Div PO Box 12548 Austin, TX 78711−2548 512−463−2080 Email: cela.cunniff@texasattorneygeneral.gov TERMINATED: 01/11/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:09-cv-00296
Defendant Jennifer Smith

As of: 10/08/2012 09:07 AM CDT 2 of 14
Cynthia Burton Office of the Attorney General Capitol Station PO Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−495−9139 Email: cynthia.burton@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells Assistant Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512−463−2080 Email: jennifer.wells@oag.state.tx.us TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook Office of the Attorney General 300 W 15th Street 7th Floor Austin, TX 78701 512−475−1917 Fax: 512−495−9139 Email: Allan.Cook@texasattorneygeneral.gov ATTORNEY TO BE NOTICED
Calysta L Johnson Office of the Attorney General PO Box 12548 Capitol Station Austin, TX 78711 512−463−2080 Fax: 512−495−9139 Email: Calysta.Johnson@texasattorneygeneral.gov ATTORNEY TO BE NOTICED
Jesse Hoffman McCathern Mooty Hyde Grinke, LLP 3710 Rawlins, Suite 1600 Dallas, TX 75219 214−741−2662 Email: jhoffman@mccathernlaw.com ATTORNEY TO BE NOTICED
Karen D Matlock Office of the Texas Attorney General P O Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−495−9139 Email: karen.matlock@texasattorneygeneral.gov TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) TERMINATED: 01/11/2010 LEAD ATTORNEY

Case: 2:09-cv-00296
Defendant E. Brown TERMINATED: 07/30/2010

As of: 10/08/2012 09:07 AM CDT 3 of 14
ATTORNEY TO BE NOTICED
Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
Karen D Matlock (See above for address) TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) TERMINATED: 01/11/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
Karen D Matlock (See above for address) TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 4 of 14

Defendant Michayel Smith TERMINATED: 07/30/2010 also known as John 1 Doe TERMINATED: 07/30/2010
Defendant Gilbert Campuzano TERMINATED: 07/30/2010
Defendant Joni White TERMINATED: 07/30/2010

represented by Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address) TERMINATED: 01/11/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
Karen D Matlock (See above for address) TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED
represented by Celamaine Cunniff (See above for address)

Case: 2:09-cv-00296
Defendant Richard Lopez TERMINATED: 07/30/2010
Defendant Kevin Campbell TERMINATED: 07/30/2010

As of: 10/08/2012 09:07 AM CDT 5 of 14
TERMINATED: 01/11/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
Karen D Matlock (See above for address) TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED
represented by Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
Karen D Matlock (See above for address) TERMINATED: 04/12/2010 ATTORNEY TO BE NOTICED
represented by Cynthia Burton (See above for address)

Case: 2:09-cv-00296
Defendant Chris Bell TERMINATED: 07/30/2010
Defendant Ramona Creek in her individual capacity
Defendant Sue Weeks in her individual capacity

As of: 10/08/2012 09:07 AM CDT 6 of 14
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
represented by Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer J. Wells (See above for address) TERMINATED: 04/12/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Allan Kennedy Cook (See above for address) ATTORNEY TO BE NOTICED
Calysta L Johnson (See above for address) ATTORNEY TO BE NOTICED
Jesse Hoffman (See above for address) ATTORNEY TO BE NOTICED
represented by Allan Kennedy Cook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Burton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Allan Kennedy Cook (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cynthia Burton

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 7 of 14

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Office of the Attorney General for the State of Texas

represented by Karen D Matlock (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/04/2009
11/05/2009
11/06/2009 11/06/2009 11/13/2009 11/23/2009 12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/04/2009 12/07/2009
12/07/2009
12/08/2009 12/08/2009
12/08/2009

# Docket Text
1 COMPLAINT against all defendants (Filing fee $ 350 receipt number 05410000000005668449) filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet)(Medlock, Scott) (Entered: 11/04/2009)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 12/16/2009 at 01:15 PM before Judge Janis Graham Jack. (Attachments: # 1 Standing Order) Parties notified.(dterrell, ) (Entered: 11/05/2009)
3 MOTION for Daniel E. Manville to Appear Pro Hac Vice by Prison Legal News, filed. Motion Docket Date 11/27/2009. (Medlock, Scott) (Entered: 11/06/2009)
4 ORDER granting 3 Motion to Appear Pro Hac Vice.(Signed by Judge Janis Graham Jack) Parties notified.(dperez, ) (Entered: 11/09/2009)
Summons Issued as to Brad Livingston, Jennifer Smith, E. Brown, Gilbert Campuzano, Joni White, Richard Lopez, filed.(dterrell, ) (Entered: 11/13/2009)
5 CERTIFICATE OF INTERESTED PARTIES by Prison Legal News, filed.(Medlock, Scott) (Entered: 11/23/2009)
6 RETURN of Service of SUMMONS Executed as to Brad Livingston served on 11/17/2009, answer due 12/8/2009, filed.(Medlock, Scott) (Entered: 12/04/2009)
7 RETURN of Service of SUMMONS Executed as to Gilbert Campuzano served on 11/17/2009, answer due 12/8/2009, filed.(Medlock, Scott) (Entered: 12/04/2009)
8 RETURN of Service of SUMMONS Executed as to Jennifer Smith served on 11/17/2009, answer due 12/8/2009, filed.(Medlock, Scott) (Entered: 12/04/2009)
9 RETURN of Service of SUMMONS Executed as to Joni White served on 11/17/2009, answer due 12/8/2009, filed.(Medlock, Scott) (Entered: 12/04/2009)
10 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Prison Legal News, filed. (Attachments: # 1 Exhibit 1)(Medlock, Scott) (Entered: 12/04/2009)
11 Opposed MOTION to Transfer Case to Waco Division of the Western District, United States District Court by Gilbert Campuzano, Brad Livingston, Joni White, filed. Motion Docket Date 12/28/2009. (Attachments: # 1 Proposed Order)(Cunniff, Celamaine) (Entered: 12/07/2009)
12 MOTION to Dismiss for Lack of Standing by Gilbert Campuzano, Brad Livingston, Joni White, filed. Motion Docket Date 12/28/2009. (Attachments: # 1 Proposed Order, # 2 Exhibit A)(Cunniff, Celamaine) (Entered: 12/07/2009)
13 CERTIFICATE OF INTERESTED PARTIES by Gilbert Campuzano, Brad Livingston, Joni White, filed.(Cunniff, Celamaine) (Entered: 12/08/2009)
14 MOTION for Continuance of the Initial Pretrial and Scheduling Order Hearing Set for December 16, 2009 by Gilbert Campuzano, Brad Livingston, Joni White, filed. Motion Docket Date 12/29/2009. (Attachments: # 1 Attachment A, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 12/08/2009)
15 ADVISORY by Gilbert Campuzano, Brad Livingston, Joni White, filed.(Cunniff, Celamaine) (Entered: 12/08/2009)

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 8 of 14

12/09/2009 12/09/2009 12/09/2009 12/11/2009 12/14/2009 12/15/2009 12/15/2009
12/15/2009
12/16/2009
12/16/2009
12/16/2009
12/16/2009 12/17/2009 12/17/2009 12/17/2009
12/17/2009 12/17/2009

16 MOTION to Dismiss Defendant Jennifer Smith's Motion to Dismiss for Lack of Standing by Jennifer Smith, filed. Motion Docket Date 12/30/2009. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 12/09/2009)
17 RETURN of Service of SUMMONS Executed as to Richard Lopez served on 11/25/2009, answer due 12/16/2009, filed.(Medlock, Scott) (Entered: 12/09/2009)
18 RETURN of Service of SUMMONS Executed as to E. Brown served on 11/25/2009, answer due 12/15/2009, filed.(Medlock, Scott) (Entered: 12/09/2009)
19 MOTION to Dismiss Defendant E. Brown's Motion to Dismiss for Lack of Standing by E. Brown, filed. Motion Docket Date 1/1/2010. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Cunniff, Celamaine) (Entered: 12/11/2009)
20 NOTICE of Resetting. Parties notified. Telephone Conference set for 12/16/2009 at 12:30 PM before Judge Janis Graham Jack, filed. (sscotch, ) (Entered: 12/14/2009)
***Answer due for E. Brown 12/15/2009. (dperez, ) (Entered: 12/15/2009)
21 RESPONSE to 12 MOTION to Dismiss for Lack of Standing, 16 MOTION to Dismiss Defendant Jennifer Smith's Motion to Dismiss for Lack of Standing, 19 MOTION to Dismiss Defendant E. Brown's Motion to Dismiss for Lack of Standing, filed by Prison Legal News. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 12/15/2009)
22 RESPONSE to 11 Opposed MOTION to Transfer Case to Waco Division of the Western District, United States District Court, filed by Prison Legal News. (Attachments: # 1 Proposed Order, # 2 Exhibit)(Medlock, Scott) (Entered: 12/15/2009)
23 Defendants Livingston, White, Campuzano, Smith, and Brown's Proposed Discovery and Case Management Plan by E. Brown, Gilbert Campuzano, Brad Livingston, Jennifer Smith, Joni White, filed.(Cunniff, Celamaine) (Entered: 12/16/2009)
Minute Entry for proceedings held before Judge Janis Graham Jack. Proceedings held on 12/16/2009. Discussion regarding case. Court resets inital pretrial conference for Friday, December 18, 2009 at 8:00 a.m. Appearances: Celamaine Cunniff, Scott Charles Medlock.(Digital # 12:31−12:41)(ERO:v gano), filed.(sscotch, ) (Entered: 12/16/2009)
24 Unopposed MOTION for Karen D. Matlock, Assistant Attorney General to Appear by E. Brown, Gilbert Campuzano, Brad Livingston, Jennifer Smith, Joni White, filed. Motion Docket Date 1/6/2010. (Attachments: # 1 Proposed Order)(Matlock, Karen) (Entered: 12/16/2009)
25 NOTICE of Appearance by Karen D. Matlock, Assistant Attorney General, as Co−Counsel on behalf of E. Brown, Gilbert Campuzano, Brad Livingston, Jennifer Smith, Joni White, filed. (Matlock, Karen) (Entered: 12/16/2009)
26 ORDER Granting 24 Motion for Leave to Appear for Co−Counsel Matlock to Appear at December 18 Hearing.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 12/17/2009)
27 NOTICE of Setting. Parties notified. Pretrial Conference set for 12/18/2009 at 08:00 AM before Judge Janis Graham Jack, filed. (sscotch, ) (Entered: 12/17/2009)
28 Unopposed MOTION to Seal Last Known Address of Charles C. Bell by Office of the Attorney General for the State of Texas, filed. Motion Docket Date 1/7/2010. (Attachments: # 1 Exhibit A − Coversheet Only, # 2 Proposed Order)(Matlock, Karen) (Entered: 12/17/2009)
29 Sealed Event, filed. (Entered: 12/17/2009)
30 MOTION to Dismiss Defendant Richard Lopez' Motion to Dismiss for Lack of Standing by Richard Lopez, filed. Motion Docket Date 1/7/2010. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Matlock, Karen) (Entered: 12/17/2009)

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 9 of 14

12/17/2009 12/17/2009
12/17/2009 12/18/2009
12/18/2009 12/18/2009 12/18/2009 12/18/2009
12/18/2009 01/11/2010 01/12/2010 01/15/2010 01/15/2010 01/29/2010 02/12/2010

31 ORDER granting 28 Unopposed Motion to Seal Last Known Address.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 12/17/2009)
32 ORDER Denying in Part 30 MOTION to Dismiss Defendant Richard Lopez' Motion to Dismiss for Lack of Standing, 12 MOTION to Dismiss for Lack of Standing, 19 MOTION to Dismiss Defendant E. Brown's Motion to Dismiss for Lack of Standing, 16 MOTION to Dismiss Defendant Jennifer Smith's Motion to Dismiss for Lack of Standing, Denying 11 Opposed MOTION to Transfer Case to Waco Division of the Western District, United States District Court ( Defendants may submit additional briefing on subject of qualified immunity by 1/6/2010, Plaintiff must respond by 1/13/2010).(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 12/17/2009)
33 RESPONSE to 30 MOTION to Dismiss Defendant Richard Lopez' Motion to Dismiss for Lack of Standing, filed by Prison Legal News. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 12/17/2009)
Minute Entry for proceedings held before Judge Janis Graham Jack. Initial PRETRIAL CONFERENCE held on 12/18/2009. Discussion regarding issues of the case. Court signs scheduling order and general order. Court refers parties to mediation. Appearances: Karen D Matlock, Scott Charles Medlock.(Digital # 7:55−8:12)(ERO:v gano), filed.(sscotch, ) (Entered: 12/18/2009)
34 ORDER. Initial Pretrial Conference was held in this case on 12/18/09. Defendants may submit additional briefing on the subject of qualified immunity by 1/29/2010, Plaintiff must respond by 2/12/2010.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 12/18/2009)
35 GENERAL ORDER.(Signed by Judge Janis Graham Jack) Parties notified.(dperez, ) (Entered: 12/18/2009)
36 ORDER FOR REFERRAL TO MEDIATION Mediation due by 9/14/2010.(Signed by Judge Janis Graham Jack) Parties notified.(dperez, ) (Entered: 12/18/2009)
37 SCHEDULING ORDER. Amended Pleadings due by 5/14/2010 Joinder of Parties due by 2/16/2010 Discovery due by 8/31/2010 Dispositive Motion Filing due by 8/16/2010 Joint Pretrial Order due by 10/22/2010 Pretrial Conference set for 11/1/2010 at 08:30 AM before Judge Janis Graham Jack Trial set for 11/2/2010 at 08:00 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(dperez, ) (Entered: 12/18/2009)
38 JOINT DISCOVERY/CASE MANAGEMENT PLAN by E. Brown, Gilbert Campuzano, Brad Livingston, Richard Lopez, Prison Legal News, Jennifer Smith, Joni White, filed.(Matlock, Karen) (Entered: 12/18/2009)
39 NOTICE of attorney substitution by E. Brown, Gilbert Campuzano, Brad Livingston, Jennifer Smith, Joni White. Attorney Jennifer Wells added. Attorney Celamaine Cunniff terminated, filed. (Wells, Jennifer) (Entered: 01/11/2010)
40 ANSWER to 1 Complaint with jury demand by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Joni White, filed.(Wells, Jennifer) (Entered: 01/12/2010)
41 NOTICE of Initial Disclosures by Prison Legal News, filed. (Medlock, Scott) (Entered: 01/15/2010)
42 NOTICE of Initial Disclosure by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, John 1 Doe, Brad Livingston, Richard Lopez, Jennifer Smith, Joni White, filed. (Wells, Jennifer) (Entered: 01/15/2010)
43 Supplemental MOTION to Dismiss Based On Qualified Immunity by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Joni White, filed. Motion Docket Date 2/19/2010. (Attachments: # 1 Proposed Order, # 2 Exhibit A)(Wells, Jennifer) (Entered: 01/29/2010)
44 RESPONSE to 43 Supplemental MOTION to Dismiss Based On Qualified Immunity filed by Prison Legal News. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 02/12/2010)

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 10 of 14

02/12/2010 02/16/2010 02/16/2010 02/16/2010
02/16/2010 03/02/2010
03/10/2010 04/12/2010
04/12/2010 04/21/2010 04/23/2010 04/30/2010 05/04/2010 06/09/2010 06/11/2010 06/24/2010 07/20/2010
07/22/2010

45 MOTION to Amend 1 Complaint by Prison Legal News, filed. Motion Docket Date 3/5/2010. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 02/12/2010)
46 NOTICE of Setting. Parties notified. Telephone Conference set for 2/16/2010 at 01:45 PM before Judge Janis Graham Jack, filed. (sscotch, ) (Entered: 02/16/2010)
47 ORDER Granting 45 Motion to File First Amended Complaint.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 02/16/2010)
Minute Entry for proceedings held before Judge Janis Graham Jack. TELEPHONE CONFERENCE held on 2/16/2010 regarding 45 Motion to Amend 1 Complaint. Court Grants Motion to Amend. Appearances: Jennifer J. Wells, Scott Charles Medlock.(Digital # 1:48−1:50)(ERO:v gano), filed.(sscotch, ) (Entered: 02/17/2010)
48 AMENDED COMPLAINT against Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White filed by Prison Legal News.(srussell, ) (Entered: 02/17/2010)
49 AMENDED ANSWER to 48 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White, filed. (Wells, Jennifer) (Entered: 03/02/2010)
50 NOTICE of Vacation by Prison Legal News, filed. (Medlock, Scott) (Entered: 03/10/2010)
51 NOTICE of attorney substitution by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White. Attorney Cynthia Lee Alexander added. Attorney Karen D Matlock and Jennifer J. Wells terminated, filed. (Alexander, Cynthia) (Entered: 04/12/2010)
52 NOTICE of Appearance by Co−Counsel on behalf of Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White, filed. (Hoffman, Jesse) (Entered: 04/12/2010)
53 ORDER granting 43 Supplemental MOTION to Dismiss Based On Qualified Immunity.(Signed by Judge Janis Graham Jack) Parties notified.(sscotch, ) (Entered: 04/21/2010)
54 Letter from Stanley Henderson re: Copy of Docket Sheet mailed., filed. (smurdock, ) (Entered: 04/26/2010)
55 NOTICE of Filing Discovery Responses by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Joni White, filed. (Alexander, Cynthia) (Entered: 04/30/2010)
56 ORDER Striking 55 Notice of Filing Discovery Responses.(Signed by Judge Janis Graham Jack) Parties notified.(srussell, ) (Entered: 05/04/2010)
57 MOTION for Adam Cook to Appear Pro Hac Vice by Prison Legal News, filed. Motion Docket Date 6/30/2010. (Medlock, Scott) (Entered: 06/09/2010)
58 ORDER granting 57 Motion to Appear Pro Hac Vice of Adam Cook.(Signed by Judge Janis Graham Jack) Parties notified.(vrios, ) (Entered: 06/15/2010)
59 NOTICE of Appearance by Allan K. Cook on behalf of Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White, filed. (Cook, Allan) (Entered: 06/24/2010)
60 NOTICE of Appearance by Calysta L. Johnson on behalf of Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White, filed. (Johnson, Calysta) (Entered: 07/20/2010)
61 DESIGNATION OF EXPERT WITNESS LIST by Prison Legal News, filed.(Medlock, Scott) (Entered: 07/22/2010)

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 11 of 14

07/22/2010 07/28/2010 07/29/2010
07/30/2010
07/30/2010
07/30/2010
07/30/2010 07/30/2010
08/10/2010 08/10/2010 08/10/2010 08/16/2010 08/19/2010 08/20/2010 10/13/2010 10/15/2010
10/15/2010

62 DESIGNATION OF EXPERT WITNESS LIST by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Jennifer Smith, Michayel Smith, Joni White, filed.(Alexander, Cynthia) (Entered: 07/22/2010)
63 Second MOTION to Amend 1 Complaint by Prison Legal News, filed. Motion Docket Date 8/18/2010. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Medlock, Scott) (Entered: 07/28/2010)
64 Joint MOTION to Modify Scheduling Order as to 37 Scheduling Order, by Chris Bell, E. Brown, Kevin Campbell, Gilbert Campuzano, Brad Livingston, Richard Lopez, Prison Legal News, Jennifer Smith, Michayel Smith, Joni White, filed. Motion Docket Date 8/19/2010. (Attachments: # 1 Proposed Order)(Alexander, Cynthia) (Entered: 07/29/2010)
65 NOTICE of Setting as to 63 Second MOTION to Amend 1 Complaint, 64 Joint MOTION to Modify Scheduling Order as to 37 Scheduling Order,Joint MOTION to Modify Scheduling Order as to 37 Scheduling Order,. Parties notified. TELEPHONE CONFERNCE − Motion Hearing set for 7/30/2010 at 01:30 PM before Judge Janis Graham Jack, filed. (sscotch, ) (Entered: 07/30/2010)
Minute Entry for proceedings held before Judge Janis Graham Jack. MOTION HEARING held on 7/30/2010 re: 63 Second MOTION to Amend 1 Complaint, 64 Joint MOTION to Modify Scheduling Order as to 37 Scheduling Order,Joint MOTION to Modify Scheduling Order as to 37 Scheduling Order,. Appearances: Cynthia Lee Alexander, Scott Charles Medlock.(Digital # 1:36−2:26)(ERO:v gano), filed.(sscotch, ) (Entered: 07/30/2010)
66 ORDER granting 63 Motion to Amend; granting in part 64 Motion to Modify; granting oral motion to dismiss "Cause of Action II: Due Prcoess of Law" in the Second Amended Complaint.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, ) (Entered: 07/30/2010)
67 SECOND AMENDED COMPLAINT against Brad Livingston, Jennifer Smith, Ramona Creek, Sue Weeks filed by Prison Legal News.(lcayce, ) (Entered: 07/30/2010)
68 AMENDED SCHEDULING ORDER. Dispositive Motion Filing due by 10/15/2010 Joint Pretrial Order due by 1/21/2011 by 3:00 p.m. Pretrial Conference set for 2/1/2011 at 08:30 AM before Judge Janis Graham Jack Jury Trial set for 2/2/2011 at 08:00 AM before Judge Janis Graham Jack.(Signed by Judge Janis Graham Jack) Parties notified.(amireles, ) (Entered: 08/02/2010)
(ENTERED IN ERROR) Summons Issued as to Brad Livington, filed.(bcortez, ) Modified on 8/10/2010 (bcortez, ). (Entered: 08/10/2010)
Summons Issued as to Sue Weeks, filed.(bcortez, ) (Entered: 08/10/2010)
Summons Issued as to Ramona Creek, filed.(bcortez, ) (Entered: 08/10/2010)
69 ADVISORY by Brad Livingston, Jennifer Smith, filed.(Alexander, Cynthia) (Entered: 08/16/2010)
70 ADVISORY by Brad Livingston, Jennifer Smith, filed.(Alexander, Cynthia) (Entered: 08/19/2010)
71 ANSWER to 67 Amended Complaint/Counterclaim/Crossclaim etc. with Jury Demand by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed.(Alexander, Cynthia) (Entered: 08/20/2010)
***Deadlines terminated. (sscotch, ) (Entered: 10/13/2010)
72 MOTION for Summary Judgment with Brief in Support by Ramona Creek, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/5/2010. (Attachments: # 1 Appendix Tab 1, # 2 Appendix Tab 2 Exh A, # 3 Appendix Tab 2 Exh B, # 4 Appendix Tab 2 Exh C, # 5 Appendix Tab 2 Exh D, # 6 Appendix Tab 2 Exh E, # 7 Appendix Tab 2 Exh F)(Alexander, Cynthia) (Entered: 10/15/2010)
73 APPENDIX re: 72 MOTION for Summary Judgment with Brief in Support by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. (Attachments:

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 12 of 14

10/15/2010 10/15/2010 10/15/2010 10/18/2010 10/18/2010 10/18/2010 10/18/2010 10/18/2010
10/18/2010

# 1 Appendix Tab 2 Exh G−2, # 2 Appendix Tab 2 Exh G−3, # 3 Appendix Tab 2 Exh H, # 4 Appendix Tab 2 Exh I, # 5 Appendix Tab 2 Exh J, # 6 Appendix Tab 2 Exh K, # 7 Appendix Tab 2 Exh L, # 8 Appendix Tab 2 Exh M, # 9 Appendix Tab 2 Exh N, # 10 Appendix Tab 2 Exh O, # 11 Appendix Tab 2 Exh P, # 12 Appendix Tab 2 Exh Q)(Alexander, Cynthia) (Entered: 10/15/2010)
74 APPENDIX re: 72 MOTION for Summary Judgment with Brief in Support by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. (Attachments: # 1 Appendix Tab 2 Exh S, # 2 Appendix Tab 2 Exh T, # 3 Appendix Tab 2 Exh U, # 4 Appendix Tab 2 Exh V, # 5 Appendix Tab 2 Exh W, # 6 Appendix Tab 2 Exh X, # 7 Appendix Tab 3, # 8 Appendix Tab 4, # 9 Appendix Tab 5, # 10 Proposed Order)(Alexander, Cynthia) (Entered: 10/15/2010)
75 MOTION for Summary Judgment by Prison Legal News, filed. Motion Docket Date 11/5/2010. (Attachments: # 1 Exhibit Exhibits 1−8a, # 2 Exhibit Exhibits 8b−11, # 3 Exhibit Exhibits 12−16, # 4 Exhibit Exhibits 17−28, # 5 Exhibit Exhibits 29−33, # 6 Proposed Order)(Medlock, Scott) (Entered: 10/15/2010)
76 MOTION to Exclude Expert Opinion by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/5/2010. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Alexander, Cynthia) (Entered: 10/15/2010)
77 ORDER Striking Document re: 72 MOTION for Summary Judgment with Brief in Support, 73 Appendix,, 74 Appendix,. See Court's General Order: May not file supplemental pleadings..(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) (Entered: 10/18/2010)
78 MOTION for Leave to File Out of Time Motion for Summary Judgment by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/8/2010. (Attachments: # 1 Proposed Order)(Alexander, Cynthia) (Entered: 10/18/2010)
79 Amended MOTION for Leave to File Out of Time Motion for Summary Judgment by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/8/2010. (Attachments: # 1 Proposed Order)(Alexander, Cynthia) (Entered: 10/18/2010)
80 Amended MOTION for Summary Judgment With Brief in Support by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/8/2010. (Attachments: # 1 Proposed Order)(Alexander, Cynthia) (Entered: 10/18/2010)
81 APPENDIX re: 80 Amended MOTION for Summary Judgment With Brief in Support by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. (Attachments: # 1 Appendix Tab 2 Exh A, # 2 Appendix Tab 2 Exh B, # 3 Appendix Tab 2 Exh C, # 4 Appendix Tab 2 Exh D, # 5 Appendix Tab 2 Exh E, # 6 Appendix Tab 2 Exh F, # 7 Appendix Tab 2 Exh G, # 8 Appendix Tab 2 Exh H, # 9 Appendix Tab 2 Exh I, # 10 Appendix Tab 2 Exh J, # 11 Appendix Tab 2 Exh K, # 12 Appendix Tab 2 Exh L, # 13 Appendix Tab 2 Exh M, # 14 Appendix Tab 2 Exh N, # 15 Appendix Tab 2 Exh O, # 16 Appendix Tab 2 Exh P, # 17 Appendix Tab 2 Exh Q, # 18 Appendix Tab 2 Exh R, # 19 Appendix Tab 2 Exh S, # 20 Appendix Tab 2 Exh T, # 21 Appendix Tab 2 Exh U, # 22 Appendix Tab 2 Exh V, # 23 Appendix Tab 2 Exh W, # 24 Appendix Tab 2 Exh X, # 25 Appendix Tab 3, # 26 Appendix Tab 4, # 27 Appendix Tab 5, # 28 Appendix Tab 6)(Alexander, Cynthia) (Entered: 10/18/2010)
82 MOTION for Summary Judgment by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/8/2010. (Attachments: # 1 Proposed Order, # 2 Appendix Tab 1, # 3 Appendix Tab 2A, # 4 Appendix Tab2B, # 5 Appendix Tab 2C, # 6 Appendix Tab 2D, # 7 Appendix Tab 2E, # 8 Appendix Tab 2F, # 9 Appendix Tab 2G, # 10 Appendix Tab 2H, # 11 Appendix Tab 2I, # 12 Appendix Tab 2J, # 13 Appendix Tab 2K, # 14 Appendix Tab 2L, # 15 Appendix Tab 2M, # 16 Appendix Tab 2N, # 17 Appendix Tab 2O, # 18 Appendix Tab 2P, # 19 Appendix Tab 2Q, # 20 Appendix Tab 2R, # 21 Appendix Tab 2S, # 22 Appendix Tab 2T, # 23 Appendix Tab 2U, # 24 Appendix Tab 2V, # 25 Appendix Tab 2W, # 26 Appendix Tab 2X, # 27 Appendix Tab 3, # 28 Appendix Tab 4, # 29 Appendix Tab 5, # 30 Appendix Tab 6)(Alexander, Cynthia) (Entered: 10/18/2010)

Case: 2:09-cv-00296 As of: 10/08/2012 09:07 AM CDT 13 of 14

10/21/2010 10/28/2010 10/29/2010 11/04/2010 11/08/2010
11/08/2010 11/08/2010 11/08/2010
11/09/2010 11/10/2010 11/12/2010 11/23/2010 12/08/2010 01/04/2011 01/05/2011 02/01/2011

83 ORDER granting 79 Motion for Leave to File; striking 80 Motion for Summary Judgment and 81 Appendix as duplicative.(Signed by Judge Janis Graham Jack) Parties notified.(bcortez, ) (Entered: 10/21/2010)
84 NOTICE Defendants Livingston, Smith, Weeks, and Creek Sixth Supplemental Notice of Disclosure by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. (Alexander, Cynthia) (Entered: 10/28/2010)
85 NOTICE Notice Defendants 7th Supplemental Disclosures by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. (Alexander, Cynthia) (Entered: 10/29/2010)
86 RESPONSE in Opposition to 76 MOTION to Exclude Expert Opinion, filed by Prison Legal News. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Medlock, Scott) (Entered: 11/04/2010)
87 MOTION to Strike Evidence Offered in Support of Plaintiff's Motion for Summary Judgment by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 11/29/2010. (Attachments: # 1 Proposed Order)(Cook, Allan) (This document deemed timely filed per JGJ ORDER DE #93) (Entered: 11/08/2010)
88 REPLY to 86 Response in Opposition to Motion to Exclude Expert Opinion, filed by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks. (Cook, Allan) (Entered: 11/08/2010)
89 RESPONSE to 75 MOTION for Summary Judgment, filed by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks. (Cook, Allan) (This document deemed timely file per JGJ Order DE #93) (Entered: 11/08/2010)
90 RESPONSE to 82 MOTION for Summary Judgment filed by Prison Legal News. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Medlock, Scott) (Additional attachment(s) added on 3/8/2011: # 4 Exhibit, # 5 Exhibit Continuation) (amireles, ). CLERK NOTES IMAGE FOR EXHIBIT PRINTED AND RE−SCANNED DUE TO PROBLEMS IN CREATING ELECTRONIC RECORD FOR APPEAL PURPOSES. Modified on 3/8/2011 (amireles, ). (Entered: 11/08/2010)
91 ORDER Striking Document re: 89 and 87 Response and Motion to Strike filed outside the subsmission date.(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) This ORDER is VACATED per JGJ ORDER dated 11/12/2010. (Entered: 11/09/2010)
92 MOTION for Reconsideration of 91 Order Striking Document by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed. Motion Docket Date 12/1/2010. (Attachments: # 1 Proposed Order, # 2 Exhibit)(Alexander, Cynthia) (Entered: 11/10/2010)
93 ORDER granting 92 Motion for Reconsideration and VACATES its November 9, 2010 Order (DE #91). Defts' Response to Pltffs' Motion for Summary Judgment (DE#89) and Motion to Strike (DE #87) are hereby deemed timely.(Signed by Judge Janis Graham Jack) Parties notified.(lsmith, ) (Entered: 11/12/2010)
94 RESPONSE to 87 MOTION to Strike Evidence Offered in Support of Plaintiff's Motion for Summary Judgment filed by Prison Legal News. (Attachments: # 1 Proposed Order)(Medlock, Scott) (Entered: 11/23/2010)
95 ADVISORY by Ramona Creek, Brad Livingston, Jennifer Smith, Sue Weeks, filed.(Burton, Cynthia) (Entered: 12/08/2010)
96 ORDER denying 75 Motion for Summary Judgment; denying as moot 76 Motion to Exclude; granting 82 Motion for Summary Judgment; denying 87 Motion to Strike.(Signed by Judge Janis Graham Jack) Parties notified.(mserpa, ) (Entered: 01/04/2011)
97 FINAL JUDGMENT.(Signed by Judge Janis Graham Jack) Parties notified.(lcayce, ) (Entered: 01/05/2011)
98 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 96 Order on Motion for Summary Judgment, Order on Motion to Exclude,, Order on Motion to

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02/03/2011
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Strike, 97 Final Judgment, 66 Order on Motion to Amend,, Order on Motion to Modify, 53 Order on Motion to Dismiss by Prison Legal News (Filing fee $ 455, receipt number 0541−7623785), filed.(Medlock, Scott) (Entered: 02/01/2011)
99 Notice of the Filing of an Appeal. DKT13 transcript order form was mailed to appellant (1 copies). Fee status: Paid. The following Notice of Appeal and related motions are pending in the District Court: 98 Notice of Appeal,, filed.(amireles, ) (Entered: 02/03/2011)
100 Notice of Assignment of USCA No. 11−40128 re: 98 Notice of Appeal,, filed.(lcayce, ) (Entered: 02/11/2011)
101 DKT−13 TRANSCRIPT ORDER FORM by James C. Harrington. Transcript is unnecessary for appeal purposes. This order form relates to the following: 98 Notice of Appeal,, filed.(vrios, ) (Entered: 02/18/2011)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 98 Notice of Appeal, 100 USCA Case Number USCA No. 11−40128, filed.(amireles, ) (Entered: 03/09/2011)
102 Transmittal Letter on Appeal Certified re: 98 Notice of Appeal,. A paper copy of the electronic record is being transmitted to the Fifth Circuit Court of Appeals in 15 volumes. CDs containing the electronic record are being sent to appellant and appellees counsel. (USCA No. 11−40128), filed.(amireles, ) (Entered: 03/09/2011)
103 Transmittal Letter re: electronic record on appeal;cd sent, filed.(amireles, ) (Entered: 03/10/2011)
104 NOTICE of Receipt of Record on Appeal from US Court of Appeals for the Fifth Circuit re: 98 Notice of Appeal, (USCA No. 11−40128). Record received by USCA on 3/11/2011, filed.(lsmith, ) (Entered: 03/22/2011)
105 Order of USCA re: 98 Notice of Appeal, ; USCA No. 11−40128. It is ordered and adjudged that the judgment of the District Court is affirmed. It is further ordered that plaintiff−appellant pay to defendants−appellees the costs on appeal to be taxed by the Clerk of this Court, filed.(amireles, ) (Entered: 06/29/2012)
106 Order of USCA − Court's Opinion re: 98 Notice of Appeal, ; USCA No. 11−40128, filed.(amireles, ) (Entered: 06/29/2012)
107 Record/Original Papers/Exhibits to be returned from the US Court of Appeals for the Fifth Circuit re: 98 Notice of Appeal, (USCA No. 11−40128), filed.(amireles, ) (Entered: 06/29/2012)
108 Record on Appeal Returned from the US Court of Appeals for the Fifth Circuit re: 98 Notice of Appeal, ; consisting of 2 envelopes (copies to be shredded) (USCA No. 11−40128), filed.(lsmith, ) (Entered: 07/02/2012)