Jesse Wing, WSBA #2775 I Jesse W@ mhb.com 2 Katherine C. Chamberlain, WSBA #40014 KatherineC@ mhb.com 3 MacDonald Hoague & Bayless 705 Second Avenue, Suite 1500 4 Seattle, Washington 98104-1745 (206) 622-1604
5

6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

7
PRISON LEGAL NEWS, a project of 8 the HUMAN RIGHTS DEFENSE
CENTER,

No. COMPLAINT

9

Plaintiff,

JURY DEMAND

IO
v.

II
CHELAN COUNTY; CHELAN 12 COUNTY SHERIFF ' S OFFICE;
BRIAN BURNETT, individually and in 13 his capacity as Chelan County Sheriff;
MIKE HARUM, individually and in his 14 capacity as Chelan County Sheriff; PHIL
STANLEY, in his official and individual 15 capacity; and RON WINEINGER, in his
official and individual capacity,

16
Defendants.

17

18

I. NATURE OF THE CASE

19

1. 1 Plaintiff Prison Legal News, a project of the Human Rights Defense

20 Center, brings this action to enjoin Defendants ' censorship of its monthly

21 publication, books, and other correspondence mailed to prisoners who are held in

22 custody at the C helan County Jail, in violation of the First Amendment and the

23 Fourteenth Amendment's Due Process Clause. Defendants have adopted and

24
COMP LAINT - I
25

MACDoNALD H OAGUE & BAVI,ESS 70S SeCOlld Avenue, Suite 1500 Seattle Washington 98104
Tct 206.622. 1604 Fax 206.343.3961

implemented written mail policies and practices that unconstitutionally prohibit

2 delivery to prisoners of periodicals or magazines, books, and other correspondence

3 including but not limited to book catalogs, informational subscription brochures,

4 and book offers. Further, Defendants' policies and practices do not afford due

5 process notice and an opportunity to challenge the censorship as required by the

6 Constitution.

7

II. JURISDICTION AND VENUE

8

2.1 This action arises under the First and Fourteenth Amendments to the

9 United States Constitution. This Court has jurisdiction over this action under 28

10 U.S.c. §§ 1331 , 1343, 2201, and 2202.

II

2.2 Venue is proper in the Eastern District of Washington under 28 U.S.C.

12 § 1391(b)(2) because a substantial part of the events complained of occurred in this

13 District, and because the Defendants reside in this District.

14

m. PARTIES

IS

3.1 Plaintiff Prison Legal News (PLN) is a project of the Human Rights

16 Defense Center (HRDC), a Washington Non-Profit Corporation. The core of

17 HRDC's mission is public education, prisoner education, advocacy, and outreach

18 in support of the rights ofprisoners and in furtherance of basic human rights. PLN

19 publishes and distributes a monthly journal of corrections news and analysis and

20 certain books about the criminal justice system and legal issues affecting prisoners,

21 to prisoners, lawyers, courts, libraries, and the public throughout the Country.

22 PLN also maintains a website (www.prisonlegalnews.org) and operates an email

23
24
25 COMPLA TNT - 2
9870.04 eiOS220l

MACDONAl.D HQAGUE & 8AYLESS
705 Second Avenue, Suite 1500 Seattle. Washington 981()4
Tel 206.622. 1604 Fax 206.3 43.396 1

1 list-serve. Prisoners of all types, family and friends of prisoners, and prisoner

2 advocates, are among the intended beneficiaries ofPLN's activities.

3

3.2 Defendant Chelan County is a municipal corporation formed under

4 the laws of the State of Washington.

5

3.3 Defendant Chelan County Sheriffs Office is a department of Chelan

6 County and operates the Chelan County Regional Justice Center (RJC) and satellite

7 buildings located in Wenatchee, Washington. The Chelan RJC facility houses

8 convicted prisoners and pretrial detainees. The Chelan RJC is a 383-bed adult

9 correctional facility and its satellite buildings include a 43-bed minimum security

10 facility and a 66-bed direct supervision minimum security facility for work release

11 and volunteer inmate worker participants. The Chelan RJC and associated

12 satellite buildings are referred to herein, collectively, as "Chelan County Jail."

13

3.4 Defendant Brian Burnett is the Sheriff of Chelan County. He was

14 elected in November 20 I0 and took office on January I, 20 II. Sheriff Burnett is

15 employed by and is an agent of Chelan County and the Sheriffs Office. He is

16 responsible for the operations ofthe Chelan County Jail, and the training and

17 supervision of the Jail staff who interpret and implement the Jail's mail policy for

18 pnsoners. He is the policymaker for the Jail policy governing mail for prisoners.

19

3.5 Defendant Mike Harum was the Sheriff of Chelan County from 2002

20 until January 1, 2011. SheriffHarum was employed by and was an agent of

21 Chelan County and the Sheriffs Office when the mail polices at issue in this case

22 were created, approved and implemented. He was responsible for the operations of

23 the Chelan County Jail, and the training and supervision of the Jail staff who

24
COMPLAINT· 3
25
9i70.04 .;082102

l\1AcDoNALD HOA GUE & BA YLr.ss 705 Second Avenue, Suite 1S00
TeI2QS6e_a6tt2le~.lW6a0s4hinFgatxo2n0693841304.3961

interpret and implement the Jail's mail policy for prisoners when Defendants began

2 censoring PLN's mail. He was the policymaker for the Jail policy governing mail

3 for prisoners during his employment as Sheriff.

4

3.6 Defendant Phil Stanley is the Director of the Chelan County Jail. He

5 is employed by and is an agent of Chelan County and the Sheriffs Office. He

6 approved the mail policies at issue in this case. On information and belief,

7 Defendant Stanley is responsible for and personally participated in creating,

8 implementing, and enforcing the Jail's mail policies at issue in this case.

9

3.7 Defendant Ron Wineinger is the Deputy Director of the Chelan

10 County Jail. He is employed by and is an agent of Chelan County and the Sheriffs

II Office. On information and belief, Defendant Wineinger is responsible for and

12 personally participated in creating, implementing, and enforcing the Jail 's mail

13 policies at issue in this case.

14

3.8 Each of the acts and omissions of persons alleged herein were taken

15 under color of state law and within the scope of their official duties as employees

16 and officers of Chelan County and the Chelan County Sheriffs Office.

17

IV. FACTUAL ALLEGATIONS

18

4.1 Prison Legal News publishes and distributes a soft-cover monthly

19 journal of corrections news and analysis, about pri soner rights, court fulings,

20 management of prison facilities and prison conditions. PLN also pub li shes and

21 distributes paperback books about the criminal justice system and legal issues

22 affecting prisoners.

23
24
COMPLAfNT - 4
25
9370.04 ei!l82102

MACD oNALD H OAGUE & B AVLESS 70S Second Avenue, Suite 1500 Seattle Washington 98 104
TeI206.6ll. l604 Fax 206.343.3961

4.2 Prison Legal News has approximately 7,000 subscribers in the United

2 States and abroad, including prisoners, attorneys, journalists, public libraries,

3 judges, and other members of the public. PLN di stributes its publication to

4 prisoners and law librarians in approximately 2,200 correctional facilities across

5 the United States, includin g the Federal Bureau of Prison s and the Washington

6 Department of Corrections.

7

4.3 Prison Legal News engages in core protected speech and expressive

8 conduct on matters of pubLic concern, such as operations of prison facilities, pri son

9 conditions, prisoner health and safety, and pri soners' rights.

10 A. CENSORSIDP AND LACK OF DUE PROCESS

II

4.4 Since December 2010 the Defendants have been censoring PLN ' s

12 monthly publications, paperback books, book catalogs, book offers, and

13 informational brochures and subscription form s mailed to prisoners held in custody

14 at the Chelan County Jail. Themail items censored by Defendants include, but are

15 not limited to, the items identified below.

16

Monthly Publications

17

4.5 January 2011 Issue of Prison Legal News

18

4. 5 .1

On or about January 13,2011 , Prison Legal News mailed

19 its January 2011 Prison Legal News publication addressed to each of the following

20 prisoners at the Chelan County Jail:

21

Prisoner Name

Cameron Bibl es

22

Scott Brixey

23

David Dronen

Donald Foust

24

25 COMPLAINT - 5
9870.001 eiOlI2202

1\1.ACDONALO HOACUE & BA ¥LESS 705 Second Avenue, Su ite 1500 Seattle Wash ington 98 104
Tel206.611_I604 Fax 206.343.396 1

Carlos Garcia

Scott Martin

2

Jose Quintana

Terry Wilsey

3

Christopher Wilson

4

Aaron Yancey

5

4.5.2

The individuals identified in paragraph 4.5.1 were

6 prisoners at the Chelan County Jail at the time that the Jail received the January

7 20 II Prison Legal News publications from PLN.

8

4.5 .3

Prison Legal News sent each Janu ary 20 II Prison Legal

9 News publication to the Chelan County Jail by U.S. Mail.

10

4.5.4

Defendants censored each January 20 II Prison Legal

II News publication and did not deliver the publications to the prisoner-addressees.

12

4.5.5

Defendants did not provide Prison Legal News due

13 process notice or an opportunity to appeal the censorship decisions.

14

4.6 February 2011 Issue of Prison Legal News

15

4.6.1

On or about February 10,20 II , PLN mailed its February

16 20 11 Prison Legal News publication add ressed to each of the following prisoners

17 at the Chelan County Jail:

18

Pri soner Name

Cameron Bibles

19

Scott Brixey

Donald Foust

20

Scott Martin

21

Christopher Wilson

Aaron Yancey

22

23

24
25 COMPLAINT· 6

MAC DONALD HOACUE & BAYL£SS
705 Second Avenue, Suite 1500 Seattle Washington 98104
Tel 206.622.1604 Fax 206.343396 1

I

4.6 .2

The indi viduals identi fled in paragraph 4.6.1 were

2 prisoners at the Chelan County Jail at the time that the Jail received the February

3 20 II Prison Legal News publi cations from PLN.

4

4.6.3

Prison Legal News sent each February 2011 Prison Legal

5 News publ ication to the Chelan County Jail by U.S. Mail.

6

4.6.4

Defendants censored each February 20 I I Prison Legal

7 News publication and did not deliver the publications to the prisoner-addressees.

8

4.6.5

Defendants did not provide Prison Legal News due

9 process notice or an opportunity to appeal the censorship decisions.

to

4.7 March 2011 Issue of Prison Legal News

II

4.7.1

On or about March 10, 20 II , PLN mailed its March 20 I I

12 Prison Legal News publication addressed to each of the foll owing prisoners at the

13 Chelan County Jail:

14

Prisoner Name

Maynard Allen

15

Scott Brixey

16

Donald Foust

Mark Lehrman

17

Jason Long

Scott Martin

18

Christopher Wilson

Aaron Yancey
19

4.7.2

The individuals identified in paragraph 4.7.1 were

20

prisoners at the Chelan County Jail at the time that the Jail received the March
21

20 II Prison Legal News publication from PLN. 22

23

24
COMPLAINT - 7
25
9$10.04 .;012102

M ....c DoNA LD HOAGUE & BAYLESS 70S Second Avenue, Suite 1500
TcI2S06e.a6tt2le~.Wl6a0s4hinFgatxo2n069.8314034.396 1

4 .7.3

Prison Legal News sent each March 2011 Prison Legal

2 News publication to the Chelan County Jail by U.S. Mail.

3

4.7.4

Defendants censored each March 20 II Prison Legal

4 News publication and did not deliver the publications to the prisoner-addressees.

5

4.7. 5

Defendants did not provide Prison Legal News due

6 process notice or an opportunity to appeal the censorship decisions.

7

4.8 April 2011 Issue of Prison Legal News

8

4.8. 1

On or about April II , 2011 , PLN mailed its April 2011

9 Prison Legal News publication addressed to each of the following prisoners at the

10 Chelan County Jail:

11

Prisoner N ame

Donald Foust

12

March Lehrman

13

Scott Martin

Christopher Wilson

14

Aaron Yancey

15

4. 8.2

The individuals identified in paragraph 4. 8. 1 were

16 prisoners at the Chelan County Jail at the time that the Jail received the April 20 II

17 Prison Legal News publications from PLN.

18

4. 8.3

Prison Legal News sent each April 20 II Prison Legal

19 News publication to the Chelan County Jail by U. S. Mail.

20

4. 8.4

Defendants censored each April 2011 Prison Legal News

21 publication and did not deliver the publications to the prisoner-addressees.

22

4. 8.5

Defendants did not provide Prison Legal News due

23 process notice or an opportunity to appeal the censorship decisions.

24
25 COMPLAINT - 8
9870,04 eiOS22I)2

l\1ACDoNALD HOAG UE & BAYLESS 705 Second Avenue, Suite 1500 Seatlle. Washington 98104
TeI Z06.622. 1604 Fax 206.343.3961

4.9 May 2011 Issue of Prisoll Legal News

2

4.9.1

On or about May 18, 20 II , PLN mailed its May 20 II

3 Prison Legal News publication addressed to each of the following prisoners at the

4 Chelan County Jail:

5

Prisoner Name

Donald Foust

6

Mark Lehrman

Scott Martin

7

Christopher Wilson

8

4.9.2

The individuals identified in paragraph 4.9. I were

9 prisoners at the Chelan County Jail at the time that the Jail received the May 2011

10 Prison Legal News publications from PLN.

II

4.9.3

Prison Legal News sent each May 20 II Prison Legal

12 News publication to the Chelan County Jail by U.S. Mail.

13

4.9.4

Defendants censored each May 2011 Prison Legal News

14 publication and did not deliver the publications to the prisoner-addressees.

15

4.9.5

Defendants did not provide Pri son Legal News due

16 process notice or an opportunity to appeal the censorship decisions.

17

4.10 Continued Censorship

18

4. I O. I

Prison Legal News sent its monthly journal to prisoners

19 at the Chelan County Jail in June, July, and August 20 II, and intends to

20 correspond with prisoners at the Chelan County Jail in the future.

21

4.10.2

On information and belief, the Jail censored all the

22 monthly journals that PLN sent to prisoners at the Chelan County Jail, and

23 continues to do so.

24 COMPLAINT· 9
25

MACDoNALD HO.... GU£ & BAYLESS
705 Second Avenue, Suite 1500 Seattle Washington 98104
Te1206.622.1604 Fax 206.343.3961

Protecting Your Health & Safety Book

2

4.11 Prison Legal News publishes and distributes paperback books relevant

3 to its mission, and offers a catalog of these books to prisoners throughout the

4 county. One of the paperback books that Prison Legal News offers and sells is

5 titled Protecting Your Health & Safety.

6

4.12 Beginning in December 2010, Prison Legal News sent the Protecting

7 Your Health & Safety book to the following prisoners at the Chelan County Jail:

8

Inmate Name

Date Sent by PLN

Wilber Allen

August 22, 20 II

9

Cameron Bibles

January 13,2011

10

Scott Brixey

January 10,2011

Frank Dean

August 22, 20 II

11

Keith Driver

August 22, 20 II

David Dronen

January 7, 2011

12

Donald Foust

January 10,2011

Carlos Garcia

December 21,2010

13

Enrique Gonzalez

July 29, 20 II

14

Terry Hoefler

July 29, 2011

Michael Marconi

July 29, 2011

15

Scott Martin

January 6, 2011

Darwin Munson

August 22, 20 II

16

Jose Quintana

January 7, 2011

Issac Spauer

July 29, 2011

17

Christopher Wilson January 7, 2011

18

Devin Wood

July 29,2011 and August 11,2011

Aaron Yancey

December 21,2010

19

4.13 The individuals identified in paragraph 4.12 were prisoners at the

20 Chelan County Jail at the time that the Jail received the Protecting Your Health

21 and Safety books from PLN.

22

23

24
25 COMPLAJNT - 10
9810.04 ei082202

MACDoNA LD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

4.14 Prison Legal News sent all of the Protecting Your Health & Safety

2 books to the Chelan County Jail via Media Mail through the United States Postal

3 Service, delivery confirmation requested.

4

4.15 Defendants censored each book, did not deliver it to the prisoner-

5 addressee, marked the package "REFUSED", and returned the books to PLN.

6

4.16 Prison Legal News also sent the Protecting Your Health & Safety

7 book to prisoner Terry Wilsey at the Chelan County Jail on January 5, 20 II.

8 Defendants censored the book, did not deliver it to Mr. Wilsey, and did not return

9 the book to Prison Legal News.

10

4.17 Defendants did not provide Prison Legal News due process notice or

II an oppOitunity to appeal the censorship decisions.

12

4.18 Prison Legal News intends to continue sending paperback books to

13 prisoners at the Chelan County Jail in the future.

14

Informational Brochures, Subscription Order Forms, Book Catalogs

15

4.19 Prison Legal News has sent informational brochures about PLN and

16 subscription order forms, book catalogs, and book offers to prisoners at the Chelan

17 County Jail.

18

4.20 Prison Legal News Brochure and Subscription Order Form:

19 Prison Legal News sent certain prisoners at the Chelan County Jail an

20 informational brochure about its organization and publications. The double-sided

21 single-page brochure included: a description of the topics covered in PLN's

22 monthly journal, subscription rates, special subscription offers, and an order form;

23 a description ofthree books available for purchase or included with a subscription

24
COMPLAINT· 11
25
5lS70,C4 ei012202

MACDONALD IIOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattl e, Washin gton 98104
TeI206.622.l 604 Fax 206.343.396\

to Prison Legal News- Protecting your Health & Safety, With Libertyfor Some:

2 500 Years ofImprisonment in America, and Prison Profiteers: Who Makes Money

3 from Mass Incarceration; and other infonnation about PLN's bookstore.

4

4.21 Book Catalog: Prison Legal News sent certain prisoners at the

5 Chelan County Jail its 2010 PLN Book List. The double-sided single-page book

6 li st includes a description of 43 books, dictionaries, and resource materials

7 avai lable for purchase. The books available for purchase include information

8 about a variety of topics, including but not limited to: the basic rights of prisoners

9 regarding health and safety; the American criminal justice system; self-

10 representation in court; finding the right lawyer; DNA testing; issues related to

II imprisoned women; developing a successfu l re-entry plan upon release from

12 prison; searching for ajob; crime and poverty; and the mental health crisis in U.S.

13 prisons and jails.

14

4.22 Book Offers: Prison Legal News sent certain pri soners at the Chelan

15 County Jail a double-sided single-page informational brochure about two books for

16 sale: The Habeas Citebook: Ineffective Assistance ofCounsel, a handbook

17 containing case citations, pleadings, and form s designed to help a prisoner seek

18 habeas corpus relief; and Prisoners' Guerrilla Handbook to Correspondence

19 Programs in the United States and Canada, a handbook on high school,

20 vocational , paralegal, undergraduate, and graduate courses available through

21 correspondence study.

22
23
24 25 COMPLAINT· 12
9170,04 .;ot2202

MACDONA I.D II OAGUE & BA VL£1>S 705 Second Avenue, Suite 1500
Seattle Washington 98104 Tt1206.622.l604 Fax 206.343.3961

4.23 Collectively, the PLN Brochure, Book Li st, and Book Offer described

2 above in paragraphs 4.18-4.20 are referred to as "Infonnational Brochure Packs"

3 below.

4

4.24 In December 2010 or January 201 I , Prison Legal News mailed

5 Wonnational Brochure Packs addressed to each of the following pri soners at the

6 Chelan County Jail :

7

Prisoner Name

Scott Brixey

8

David Dronen

9

Donald Foust

Carlos Garcia

10

Scott Martin

Jose Quintana

II

Chri stopher Wilson

Aaron Yancey
12

4.25 T he prisoners identified above in paragraph 4.24 were pri soners at the

13

Chelan County Jail at the time that the Jail received the Informational Brochure

14

Pack addressed to each prisoner from PLN.

15

4.26 PLN mailed its Infonnational Brochure Pack to each prisoner in a 16

white standard # 10 envelope via first-class mail.

17

4.27 Defendants censored each Infonnational Brochure Pack sent by PLN

18

and did not deliver them to the prisoner-addressees. 19

4.28 Defendants did not provide Prison Legal News due process notice or 20

an opportunity to appeal the censorship decisions.
21

4.29 Prison Legal News intends to continue sending Infonnational 22

Brochure Packs to prisoners at the Chelan County Jail in the future. 23

24
25 COMPLAINT - 13

MACD oNALD H OAGUE & SA n ESS 705 Second Avenue, Suite 15{)O Seattle Washington 98104
Tel 206.62.2.1604 Fax 206.343 .3961

B. JAIL POLICIES

2

4.30 On September 2 1,20 I0, the Chelan County Jail implemented a policy

3 governing mail services for prisoners. A true copy of the policy is attached to this

4 Complaint as Exhibit A.

5

4.3 I Ban on Speech that is a Periodical or Magazine: Defendants' Mail

6 policy bans all periodicals and magazines except fo r one specific newspaper. The

7 Jail 's Mail Policy states, in pertinent part:

8

[The Chelan County Regional Justice Center] currently provides the

Wenatchee World newspaper to general population inmates. No

9

subscriptions to any periodical or magazine will be allowed

!O See Exhibit A at III. D (emphasis added).

II

4.32 Defendants have used their Policy to censor Plainti ff's Prison Legal

12 News journal, books, Informational Brochure Packs, and other correspondence.

13

4.33 On information and belief, Defendants have used this Policy to censor

14 publications, newspapers, magazines, jo urnals, and correspondence from other

15 publishers, book distributors, companies, and individuals.

16

4.34 Defendants' policy is unconstitutionally overbroad.

17

4.35 Defendants' policy governing incoming mai l that prohi bits all

18 periodicals and magazines other than one newspaper that has been approved by the 19 Jail and its practice of enforcing this policy unconstitutionally burdens Plaintiff s

20 First Amendment rights, the First Amendment rights of other correspondents who

21 send mail to prisoners confined at the Chelan County Jail, and the First

22 Amendment rights of prisoners at the Chelan County Jai l.

23

24 25 COMPLAJNT - 14

M",C DONAL D HOA.CUE & BAYLESS 705 Second Avenue, Suite ISO(}
Te I2S0e6a.l6ll2e~ .Wl6a0s4hinFagxto2n069.8314034.396 1

1

4.36 Ban on Speech that Is a Book: The Chelan County Jail 's Mail

2 Policy regarding "Unauthorized Incoming Mail" prohibits "paperback books of

3 any kind." See Exhibit A at VII. 26.

4

4.37 Defendants have used this policy to censor Plaintiff' s Prison Legal

5 News journal, books, Infonnational Brochure Packs, and other correspondence.

6

4.38 On infonnation and belief, Defendants have used their Policy to

7 censor books from other publishers and book distributors.

8

4.39 Defendants' policy is unconstitutionally overbroad.

9

4.40 Defendants' policy governing incoming mail that prohibits all books

10 and its practice of enforcing this policy unconstitutionally burdens Plaintiff's First

11 Amendment rights, the First Amendment rights of other correspondents who send

12 mail to prisoners confined at the Chelan County Jail, and the First Amendment

13 rights of prisoners at the Chelan County Jail.

14

4.41 Lack of Procedural Due Process Protections:

15

4.41.1

While Defendants' policy governing incoming mail

16 provides prisoners a way to appeal censorship decisions, their policy does not

17 provide an opportunity for the sender to be heard to appeal the Jail's censorship

18 decisions. The Jail Policy states in pertinent part:

19

Unauthorized items that arrive in the mail wi ll be logged and placed on the inmate' s property. A mail denial notice will De completed

20

indicating the unauthonzed item(s). One copy of the notice will be given to the inmate, one copy to the sender, one copy placed in the

mmate's property, and one copy sent to Records.

21

22

When an inmate is prohibited from sending or receiving mail, the

23

affected inmate is entitled to have such deci sion reviewed by the

disciplinary hearing body upon written request and shall be IDformed

24

25 COMPLAINT - 15
937(1.001 ti082202

MACDoNALD IIOAGUE & BA VU:SS 105 Second Avenue, Suite 1500 Seattle, Washington 98104
Te1206.622.1604 Fax 206.343.396J

of this right. A written decision of the review of such denial shall be delivered to the inmate.
2 See Exhibit A at VI. A. and C.

3

4.41.2

In contrast to Defendants' policy itself, their "Mail

4 Denial Notice" form states that the sender may appeal the censorship decision:

5
A sender who has received a mail violation notice may obtain an

6

independent review of the rejection by writing to the Deputy Director

at 401 Washington Street - 2'd Level Wenatchee, WA 98801,

7

requesting an administrative review.

8 See Exhibit A, fonn attached.

9

4.41.3

But the "Mail Denial Notice" form undercuts the option

10 set forth in paragraph 4.41.2 by denying the opportunity to appeal if the mail is

II censored because it contains unauthorized attachments or enclosures:

12

6. Unauthorized attachments or enclosures in or on packages (no

13

administrative review).

ld. (Emphasis added.)
14

4.41.4

In contrast to Defendants' policy itself, their "Mai l

15

Denial Notice" form denies prisoners the right to appeal unless the mail is 16

censored based on its content:
17

Administrative review shall be available to the intended inmate

18

recipient only for rejected correspondence based on its written or

19

pictorial content.

/d. 20

4.41.5

In practice, Defendants generally do not provide due

21

process notice to the sender of the censored mai l and reason for censorsrup. 22

23

24
25 COMPLAINT - 16

MACDoNALD HOAGUE & BA n ESS 705 Second Avenue, Suite 1500 Scanle Washington 98104
Tel 206.622. 1604 Fax 206.343.3961

4.41.6

In practice, Defendants generally do not provide an

2 opportunity for the sender to appeal the Jail 's censorship decisions.

3

4.41.7

On December 23, 2010, Defendants sent Prison Legal

4 News a "Mail Denial Notice" fonn stating that its mail addressed to pri soner Aaron

5 Yancey was rejected by the Jai l for the following reason: "6. Unauthorized

6 attachments or enclosures in or on packages (no administrative rev iew)" with a

7 handwritten note that states "No Books/magazines." Defendants did not identify

8 the item censored by the Chelan County Jail. Defendants' fonn states no appeal is

9 pennitted for such censorship.

10

4.41.8

On December 23, 2010, Defendants sent Prison Legal

II news a "Mail Denial Notice" fonn stating that its mai l addressed to prisoner Jamie

12 Moore was rejected by the Jail for the following reason: "6. Unauthorized

13 attachments or enc losures in or on packages (no administrative review)" with a

14 handwritten note that states "Books/magazine." Defendants did not identify the

15 item censored by the Chelan County Jail. Defendants' fonn states no appeal is

16 pennitted for such censorship.

17

4.41.9

On December 24, 2010, Defendants provided prisoner

18 Carlos Garcia a "Mail Denial Notice" fonn stating that mai l addressed to him from

19 PLN Editor Paul Wright was rejected by the Jail for the following reason: "8.

20 Other than written correspondence, newspaper or magazine clippings, small

21 pamphlets, approved photo/carbon copies, hand-made drawings, and photographs,

22 no unauthorized item shall be enclosed in the envelope." Defendants did not

23
24 25 COMPLAINT - 17

l\1ACDONAI.D II OAGUE & BAYUSS 705 Second Avenue, Suite 1500
Seat!!<;, Washington 98 104 Tel 206.621. 1604 Fax 206343.396 1

identify the item censored by the Chelan County Jail. Defendants did not provide a

2 copy of this rejection notice form to PLN.

3

4.41.10 On August 14, 20 II, Defendants provided prisoner

4 Christopher Wilson a "Mail Denial Notice" form stating that mail addressed to him

5 from PLN was rejected by the Jail for the following reason: "Books, Magazines,

6 and newspapers must be received directly from the publisher" with a handwritten

7 note that states "WE DO NOT ACCEPT ANYTHlNG THRU THE MAIL."

8 Defendants did not identify the item censored by the Chelan County Jail.

9 Defendants did not provide a copy of this rejection notice form to PLN.

10

4.41.11

Defendants failed to provide a "Mail Denial

II Notice" form to Prison Legal News for the other-mail items they censored,

12 including those identified in this Complaint. Although Defendants censored

13 at least sixty-one (61) items sent by PLN to prisoners at the Chelan County

14 Jail, they provided PLN only two "Mail Denial Notice" forms. Nor did

15 Defendants communicate to PLN by other means the reasons they censored

16 the mail that Prison Legal News sent to prisoners at the Chelan County Jail.

17

4.42 Ratification of Policies and Practices: Through their deliberate

18 denials of prisoner grievances challenging the constitutionality of the Jail's mail

19 policies, Defendants consciously ratified their policies and practices of censoring

20 all books, periodicals, and magazines:

21

4.42.1

On December 2, 2010, Prisoner Brandon Jahr notified

22 Defendants of the following:

23
24
25 COMPLAfNT - 18
9810.04 eiOlI2202

l\1"cDON"W H OAGUE & 8A YLESS 70S Second Avenue, Suite ISOO Seanle Washington 98104
Tel 206.622. 1604 Fax 206.343.3961

1

I feel like Chelan County Regional Justice Center (Phil Stanley) has

violated my right to freedom of speech & expression or you could also

2

say since I' m a pretrial detainee that my due process rights are being

violated. Mr. Phil Stanley has issued a ban on inmates ordering any

3

books whatsoever, wether [sic) they are legal, religious, or basic

4

novels. ..

5

4.42.2

On December 2, 20 I0, Defendants rejected Mr. Jahr's

6 grievance, stating "Per policy, no books can be sent to the Jail through inmate mail.

7 You could request books through the Jail education program."

8

4.42.3

On December 2, 2010, Mr. Jahr fi led a second grievance,

9 stating:

10

Sgt. Larsen answered the I" grievance & [ disagree with his decision

because your policy violates federal law. This policy or a better word,

11

"Punishment of pretrial detainee" to refu se me to order any news

periodicals or legal periodicals or any magazines or basic novels is a

12

direct violation of my 1" Amendment rights. It could also be stated as

13

violating my due process rights. For the past 35 days I've been

punished with this unlawful policy. To receive these items through

14

the mail, through a [sic) approved vendor, "there is no security threat

that exist[.)" It serves no penological interest to block our mai l in such

15

away ...

16

4.42.4

On December 9,2010, Defendants denied Mr. Jalu' s

17 second grievance, stating:

18

You are provided access to newspaper and books. We are not

19

required to provide you access to legal periodicals other than the

materials in the law library.

20

21

4.42.5

On December 14,2010, Mr. Jahr submitted a "Jail

22 Request Form" to Defendant Phi l Stanley, requesting:

23
24
25 COMPLAINT · 19

M AC DoNA LD H OAGUE & SA VLESS 705 Second Avenue, Suite 1500 Seatlle Washington 98104
Te1206.622.1604 Fax 206.343.3961

I would like a copy of your mail po licy please, (not in Inmate

HandbookDJ specifically the part that says we are not allowed any

2

other periodicals, legal or otherwise because you provide the

Wenatchee World...
3

4.42 .6

Defendant Stanley denied Mr. Jahr' s request for a copy

4

of the mail policy, stating: "We are not going to provide a copy of the policy unless
5

it is requested under Public Disclosure and you pay the copy costs..."
6

4.42.7

On December 15, 2010, Mr. Jahr submitted a third level

7

grievance, stating: 8

9

You answered my second level grievance about your complete ban on, subscriptions, legal books sent in & even the most basic novels by

10

stating that "we are provided access to newspaper & books, therefore

everything else is banned .. "

1 I

4.42 .8

On December 20, 2010, Defendants again denied

12
Mr. Jahr' s grievance by stating, "You are pennitted access to our collection of

13
legal material and state law on the third floor upon a kite request. . ."

14

4.42.9

On December 28, 20 10, Prisoner Carlos Garcia appealed

15
Defendants' rejection of his correspondence from Prison Legal News, stating:

16

In our First Amendment it states (The first Amendment protects your

17

right to receive and keep reading material like books and magazines.)

The books that you refused are books to help all our situations and

18

help all of [us] earn our GED's and other programs that you don't

19

supply. [P] lus it keeps us busy and out of trouble. The Prison Legal

News sent me a couple of books and I would like to know if you

20

refused them or sent them back to Prison Legal News.

21

4.42 .10 On December 28, 2010, Defendants rejected

22 Mr. Garcia's appeal, stating it was " unfounded" and that:

23

24 COMPLAINT - 20
25
9810,04 ..0&2201

MACDONALD HOAGUE & BA Vl.ESS 705 Second Avenue, Suite ISOO Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Jail Policy prohibits periodicals, Prison Legal News is such.

Correspondence from Prison Legal News in [sic] placed in your

2

property and you will receive a mail denial notice. Inmates may kite

the education director (Latimore) for education material. (Unfounded)
3

4.42.1 I On December 29,2010, Mr. Garcia again appealed
4

Defendants' rejection of his correspondence from Prison Legal News, stating:
5

6

What happened to my Constitutional Rights of receiving books or

magazines from Publisher (Prison Legal News) [?] I fee l my FIRST

7

AMENDMENT and my CONSTITUTIONAL RIGHTS are being

taken away from me. And you do not have a program for trying to

8

receive a G.E.D. in your EDUCATION Program.

9

4.42. 12 On January 4, 2011 , Defendants rejected Mr. Garcia's

10 second appeal, stating:

11

I am not aware of any violation of your constitution al rights. The mail

12

policy at CCRJC restricts inmates [sic} ability to receive books or periodicals through the mail as individual subscriptions, it does not

13

limit your access to the educational program of the jailor the

assortment of library books available. As for the lack of aGED

14

program at CCRJC, you may send a kite to the education program and

they w ill evaluate your situation and their ability to assist you in

15

getting your GED.

16

4.43 Defendants' conduct prohibiting Prison Legal News from mailing its

17 monthly journal , informational brochures and subscription forms, book catalogs,

18 book offers, paperback books, and other publications and correspondence to

19 prisoners confined at the Chelan County Jail, and its conduct in prohibiting mail

20 fro m other correspondents, violates the First Amendment.

21

4.44 Defendants' censorship of these expressive activities has a chilling

22 effect on future speech.

23

24 25 COMPLAINT - 21

MACDONALD H OAGUE & BAYLESS 70S Second Avenue, Suite 1500 Seattle Washington 98104
Ttl 206.621_1604 Fax 206.343.3961

4.45 Defendants' policies and practices described above frustrate Prison

2 Legal News's organizational mission, and have caused Prison Legal News to divert

3 its resources.

4

4.46 Defendants' actions have violated, continue to violate, and are

5 reasonably expected to violate in the future Plaintiffs constitutional rights to

6 commun icate its politica l message to prisoners, to recruit new supporters, readers

7 and subscribers, and have caused Plaintiff additional financial harm in the form of

8 diversion of its resources, lost subscriptions, purchases of its publications, book

9 purchases, and return to sender charges.

10

4.47 Defendants Burnett, Harum, Stanley, Wineinger, and other agents of

II Chelan County are responsible for or personally participated in creating and

12 implementing these unconstitutional policies, practices, and customs and for

13 training and supervising the mail staff members whose conduct also have injured

14 and continue to injure the Plaintiff and others, or ratified or adopted the polices or

15 actions described herein.

16

v.

CLAIM ALLEGATIONS

17

COUNT )

18

FmST AMENDMENT TO THE UNITED STATES CONSTITUTION

19

5.1 Plaintiff realleges and incorporates by reference the preceding

20 paragraphs.

21

5.2 The acts described above constitute violations of Plaintiffs rights, the

22 rights of other correspondents who have attempted to or intend correspond with

23 prisoners at the Chelan County Jail, and the rights of prisoners confined at the

24
25 COMPLA INT· 22

l\lACDONAl.D I IQAGU£ & SAYLESS
70S Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.6ll.l604 Fax 206.343.3961

I Chelan County Jail, under the First Amendment to the United States Constitution

2 through 42 U.S.c. § 1983.

3

5.3 The acts described above have caused damages to Plaintiff, and will

4 continue to cause damage.

5

5.4 Plaintiff seeks declaratory and injunctive relief and nominal and

6 compensatory damages against all Defendants. Plaintiff seeks punitive damages

7 solely against the individual Defendants in their individual capacities.

8

COUNT 2

9

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

10

TO THE UNITED STATES CONSTITUTION

II

5.5 Plaintiff realleges and incorporates by reference the preceding

12 paragraphs.

13

5.6 The acts described above constitute violations of Plaintiffs rights, the

14 rights of other correspondents who have attempted to or intend to correspond with

15 prisoners at the Chelan County Jail, and the rights of prisoners confined at the

16 Chelan County Jail, under the Fourteenth Amendment to the United States

17 Constitution through 42 U.S.C. § 1983.

18

5.7 The acts described above have caused damages to Plaintiff, and will

19 continue to cause damage.

20

5.8 Plaintiff seeks declaratory and injunctive relief and nominal and

21 compensatory damages against all Defendants. Plaintiff seeks punitive damages

22 solely against the individual Defendants in their individual capacities.

23
24
25 COMPLAINT - 23
9110,04 oiOt2202

MACDoNALD HQAGUE & BA VLESS
705 Second Avenue, Suite 1500 Seattle Washi ngton 98 104
TeI 206.6ll. l604 Fax 206.343.396 1

VI. INJUNCTION ALLEGATIONS

2

6.1 Defendants' unconstitutional policy, practices, and customs are

3 ongoing and continue to violate Plaintiffs constitutional rights and the rights of

4 other correspondents and prisoners, and as such there is no adequate remedy at

5 law.

6

6.2 Plaintiff is entitled to injunctive relief prohibiting Defendants from

7 refusing to deliver or allow delivery of publications, books, infonnational

8 brochures and subscription fonns, book catalogs, book offers, and other

9 correspondence from Prison Legal News and other correspondents who send mail

10 to prisoners confined at the Chelan County Jail, and from censoring mail without

II due process oflaw.

12

VII. REQUEST FOR RELIEF

13

WHEREFORE, the Plaintiff requests relief as follows:

14

7.1 A declaration that Defendants' policies, practices, and customs violate

15 the Constitution.

16

7.2 Nominal damages for each violation by the Defendants against the

17 Plaintiff's rights.

18

7.3 A preliminary and permanent injunction preventing Defendants from

19 continuing to violate the Constitution, and providing other equitable relief.

20

7.4 A trial by jury on damages.

21

7.5 Compensatory damages in an amount to be proved at trial.

22

7.6 Punitive damages against the individual defendants in their individual

23 capacities in an amount to be proved at trial.

24
COMPLAINT - 24
25

MA CDONALD flOAG UE & BAYLESS 70S Second Avenue, Suite 1500 Seanle Washington 98104
Tel 206.622. 1604 Fax.206.343.3961

7.7 Costs, including reasonable attorney's fees, under 42 U.S.C. § 1988,

2 and under other applicable law.

3

7.8 Prejudgment and post judgment interest.

4

7.9 The right to conform the pleadings to the proof and evidence

5 presented at trial.

6

7. 10 Such other relief as the Court deems just and equitable.

7

DATED th is 91h day of September, 20 11.

8

MacDONALD HOAGUE & BAYLESS

9

10

By: J~ss~e~W~in~gL,~W~"A~#~2~77~5~1'-------

II

J sseW@nthb.com

atherine Chamberlain, WSBA #40014

12

KatherineC@nthb.com

Attorneys for Plaintiff
13

14

15

16

17

18

19

20

21

22

23

24
25 COMPLAlNT - 25

MJo C))()NALD H OACUE & BAYLI'.sS 70S Second Avenue, Suite 1500 Seattle Washington 98104
Tc1206.6ll.l604 Fax 2063433961

EXHIBIT A
TO COMPLAINT

CHELAN COUNTY REGIONAL JUSTICE CENTER
POLICY
APPROVED BY: Director P hil Stan ley
DATE APPROVED: 09/21110
POLICY-HI INMATE MAIL SERVICES
The Chelan County Regional Justice Center has established procedures governing mail services for inmates.
PROCEDURE
I. GENERALREQUUdENTS
A. Inmates are responsible for informing their correspondents the rul es governing mail, including legal mail.
B. Outgoing mail for indigent inmates is limited to ten (LO) letters per week at the faci lity's expense. Manila envelopes, other than those marked as legal and containing legal documents will not be processed for postage at the faciLity's expense. (See V Legal Mail) There is no limit on the volume of letters non-indigent inmates can send at their expense or receive, except when there is reasonable belief that limitation is necessary to protect public safety and or the safety and security of the faci lity. There is no limit to the volume of legal mail sent or recei ved.
C. An inmate's writing privileges to a particular person or group may be withdrawn under authorization from the Director or designee.
D. Inmate mail will not be processed or hand led by inmates other than the writer or the inmate to whom the mai l is addressed.
E. Inmate to inmate mail wi II not be all owed, unless approved by the Director or designee. Inmate to inmate mail that is not approved by the Director or des ignee will be returned to the place of origin.
F. Excluding weekends and holidays or emergency situations: l. All mail will be delivered to the inmates within two (2) days of receipt. 2. AlIlegaJ mail will be deli vered within 24 hours of receipt.

II. INSPECTION A. Designated Jail staff are authorized to inspect and rev iew incoming mail to prevent: I. Receiving contraband, or any other material that threatens the safety and security of the facility, and 2. Criminal activity B. Cash and endorsed money orders will be logged and sent directly to Control for processing. Receipts will be printed and forwarded to the inmate with the incoming mail. Ifan inmate refuses to endorse the back of the money order and/or check, a comment will be added to the inmate's Property Update in the Jail Management System, stating "refused to
sign", the check number, amount, and sender. The updated property sheet and the money order and/or check will be placed into the inmate's property. The only checks that will be accepted are those received over our Western Union in the control room and those from other agencies, unless approved by a supervisor. C. Unauthorized mail will be removed, logged and returned to sender or placed into the inmate's property; a mail denial notice will be given to the inmate and copies distributed as listed .
ill INCOMING MAlL A. Incoming mail will only be accepted from the U.S. postal service or
other authorized commercial carriers.
B. Mail sent to inmates will be addressed with their fu ll committed name. Staff wi ll make reasonable effort to identifY the irunate for whom the mail is intended. I. Money orders may be sent to inmates - made payable to CCRJC with the inmate' s name recorded in the memo section of the document.
C. Incoming mail for inmates must have a viable return address as defined by the U.S. postal service. Mail without a viable return address will be rejected and may be placed in the inmate's property.
D. CCRJC currently provides the Wenatchee World newspaper to general population inmates. No subscriptions to any periodical or magazine will be allowed.
IY OUTGOING MAIL A. Letters from inmates must have a complete return address that includes their full committed name and housing assignment. The return address may include any other legal name, as long as it is listed below the inmate's committed name. Other than the return

address referenced above and complete mailing address, no other markings or drawings on the envelope are allowed. B. Jail staff will co llect outgoing mail at lockdownlcount and confirm indigent status on all outgoing correspondence. Excluding extraordinary situations, the mail will be sent out via the U.S. postal service on the next available day. C. If contraband (homemade necklaces, bracelets, picture frames, commissary items, etc.) is suspected in an outgoing letter, the letter will be opened and contraband confirmed. An infraction wi ll be issued to the inmate and the contraband secured as evidence for potential disciplinary action. D. Outgoing homemade envelopes of any kind will not be allowed. A mail denial notice will be completed indicating the unauthorized item(s). One copy of the notice will be given to the inmate, one copy placed in the inmate's property, and the remaining copies sent to Records. The envelope will be placed in the inmate's property. E. Outgoing mail with any fore ign substance on the envelope is prohibited. A mail denial notice will be completed and copies dispersed as noted above. The envelope will be placed in the inmate's property.
V LEGALMAIL A. Incoming mail must have the return address on the front of the envelope, if the address is readily identifiable as being from the courts, court staff, attorneys, law enforcement officers in their official capacity, or established groups involved in representing or corresponding to inmates in judicial proceedings it will be treated as "LEGAL MAIL". B. The front of an envelope that is stamped "LEGAL MAIL", "Attorney/Client", "Confidential", or similar designation will be treated as "LEGAL MAIL". C. Incoming legal mail will be opened in the presence of the addressed inmate by designated jail staff.
VI UNAUTHORIZED MAIL A. Unauthorized items that arrive in the mail will be logged and placed on the inmate's property. A mail denial notice will be completed indicating the unauthorized item(s) . One copy of the notice will be given to the inmate, one copy to the sender, one copy placed in the inmate's property, and one copy sent to Records.

B. If any contraband or illegal items are found in the incom ing mail, they wi ll be treated as evidence for potential disciplinary or criminal action .
C. When an inmate is prohibited from sending or receiving mail, the affected inmate is entitled to have such decision reviewed by the disciplinary hearing body upon written request and shall be informed of this right. A written decision of the review of such denial shall be delivered to the inmate.
D. Inmate to inmate mail is prohibited, unless approved by the Director or designee. Inmate to inmate mail that is not approved by the director or their designee will be returned to the place of origin. This includes mail to inmates housed at other jails or prisons.
E. Repeated violations of unauthorized mail and or the CCRJC mail policy may result in denial of mail privileges to the sender.
VII LIST OF UNAUTHORIZED INCOMING MAIL
I. Mail unauthorized by policy 2. Items not permitted by jail rules. 3. Mail to or from an individual with whom contact
is restricted. 4. Material that threatens or is detrimental to the safety,
security, or discipline of the fac ility. 5. Mail contai ning information that, if communicated, could
create a risk of violence and/or physica l harm to any
person.
6. Mail containing items available for purchase on the c o mmi ssary .
7. Gang-related material such as signs, drawings, language, and symbols - to include pictures of persons displaying gang signs and or gang activities.
8. Mail that is in code. 9. Mail that contains contraband, or relates to sending
contraband in or out of the facility. 10 . Mail containing plans to escape, or mail depicting or
describing blueprints or operational details of existing facility security devises (e.g. locks, electronics, facility groundslbuildings etc.). II. Mail containing instructions for the manufacture or use of weapons, ammunition, explosives, drugs, alcoho l, other unlawful substances or contraband. 12. Mail containing threats of physical harm aga inst any person or any other threats or criminal activity.

13. Mail containing blackmail or extOltion threats. 14. Any item larger than 8 Yi' by II". 15. Envelopes or contents altered from original form or
soaked/permeated in a liquid, solid, or gaseous solution. 16. Homemade envelopes of any size are prohibited. 17. Mail containing greeting cards that are padded,
laminated/layered, musical, and/or larger than 8 Y2" by 11 ". 18. Other than the cancelled stamp attached to the front of the envelope or package, no item shall be glued, taped, or affixed to the envelope, package, or its contents. 19. Polaroid type photographs or photograph wherein the nonphoto side is, or can be, separated from the photo side. 20. Electronic items (including batteries). 2 1. Glue, paperclips, clasps, staples, magnets, stickers, tape, plastic, wood, cloth, glass, ribbon, liquids, metal, or any like materials. 22. Negotiable instruments such as un-cancelled stamps, blank paper, envelopes, stickers/labels or other items that can be traded or sold. 23. Profanity on envelopes. 24. Lipstick on envelopes, packages or contents. 25. Mail that appears to be legal mail, but upon visual scanning for contraband is determined to be general
correspondence.
26. Hardbound or paperback books of any kind. 27. Mail advocating that any group is inferior based on
national origin, race, color, religion, age, gender, marital
status, sexual orientation, status as a Vietnam Era Veteran,
Wartime Veteran, or Disabled Veteran, or the presence of a physical, mental, or sensory impairment and makes such group the object of ridicule and scorn, and may reasonably be thought to precipitate a violent confrontation between the recipient and a member(s) of the target group. 28. Mail containing photocopies or carbon copies, except: a. Photocopies/carbon copies that meet the
defmition of legal mail, b. Photocopies/carbon copies between inmates
verified as co-parties in a legal matter and the copy (ies) are Legal Pleadings or Discovery documents, c. A single copy or carbon copy of an item that would otherwise be allowed. Multiple copies of the same document are not all owed.

d. Photocopies of birth/death certificates, marriage licenses, or other legal documents affecting status from: I) A city, county, state, or federal court, or 2) A person initiating visiting privileges and the copy(ies) pertains to the visitor approval
process.
29. The outside of the enve lope or package does not contain a return address as defined in policy.
30. The outer envelope contains envelopes of correspondence and/or loose letters addressed to a party other than the party whose address appears on the outer envelope, that are, or appear to be, intended to be mailed by a third party.
31. Mail that is obscene, violent, pornographic, sexually illicit, sexually erotic, sexually enticing, sexually
prurient, or sexually exp licit**. a. **The term "sexually explicit" refers to any
pictorial representation or written material that is intended for sexual gratification and shows male or female genitalia, partial or full frontal nudity, or depicts sexual acts or behaviors including, but not limited
to, intercourse/penetration, sodomy, fe llatio, cunnilingus,
anilingus, or masturbation,
or depicts any of the following sexual behaviors: I) One or more of the participants appears to be:
a) Non-consenting, b) Acting in a forceful, threatening, or violent
manner,
c) Dominating one or more of the other participants,
d) In a submissive role, e) Degraded, humiliated, or appears to
willingly engage in behavior that is degrading or humiliating, or 1) A minor or a minor alone is depicted in a sexually suggestive way, 2) Bodily excretory behavior that appears to be sexual in nature, and 3) Bestiality, sadomasochistic behavior, and/or bondage. b. The term sexually explicit also refers to written materials that are intended for sexual gratification

and describe any of the following sexual behaviors as the predominant theme of the publication or letter: 1) Sexual behaviors including, but not limited to,
intercourse/penetration, sodomy, fellatio, cunnilingus, anilingus, or masturbation. 2) One or more of the participants appears to be: a) Non-consenting, b) Acting in a forceful , threatening, or violent
manner.
c) Domin ating one or more of the other participants,
d) In a submi ssive role, e) Degraded, humiliated, or appears to
willingly engage in behavior that is degrading or humiliating, or f) A minor, or a minor alone is depicted in a sexually suggestive way, 3) Bodily excretory behavior that appears to be sexual in nature, or 4) Bestiality, sadomasochi stic behavior, and/or bondage.

CHEL.AN COUNTY REGIONAL JUSTICE CENTER MAIL DENIAL NOTICE

Mail addressed to:

, Name #

, Housing Unit

, IS In

violation of POL 111-rNMATEMAIL SERVICES. The material has been rejected and returned or placed in your property

for the following reason(s): (Circle the correct number)

I. Mail between inmates is prohibited, unless approved the Director or designee. 2. Mail shall nol contain correspondence to anyone except the inmate whose name appears on the
front of the envelope. 3. Inmates shall not request another inmate to forward correspondence beyond the immediate
address. 4. Inmate's committed name must appear on the front of the envelope. 5. Sender's complete name and return address must appear on the front of the envelope. 6. Unauthorized attachments or enclosures in or on packages (no administrative review) 7. Other than the cancelled stamp, address, and return address attached to the front
of an envelope or package, no item or other marking shall be glued, taped or affixed to the envelope or package or contents. 8. Other than written correspondence, newspaper or magazine clippings, small pamphlets, approved photo/carbon copies, hand-made drawings, and photographs, no unauthorized item shall be enclosed in the envelope. --,-~~~c---,----,--c-~-----,---,-,-c--------9. Sexually explicit material, gang-related material, inflammatory material or correspondence that is is in code is prohibited. 10. Material that is considered contraband, threatens or is detrimental to the security, good order, or discipline of the fac il ity
is prohibited. : - - - -- ---,,-,--,-------;c-,---""""-:-c----=c,---,--- - - - - - - - -- -- II. Negotiable instruments, uncancelled stamps, and stamp collections are prohibited. ___________ __ _
'~~~~~~~=~~~=======~~~========= 123. EItelemcstrolanrigceirtethmasn, 8incWlu'dxinIgI"baatrteerpieroshairbeitpedro.hibited.
14. No foreign substance is allowed in or on any mail items. 15. Polaroid-type photographs with a chemical substance on the back of the photograph are prohibited. _ _ _ _ _ _ __
176. Nlteomosthaevrafiloarbmlse ofofrcpuurrecnhcayseoothnecrotmhamnimssoanryeywoilrldneorst ob~r:c,a:s,h,~a'r:eP:atc:c,edp~t.e:d~.:~=================~
18. Other as described in POL III inmate Mail Services.

Items denied may be placed into the inmate's personal property box or returned to the sender. A sender who has received a mail violation notice may obtain an independent review of the rejection by writing to the Deputy Director at 401 Washington Street - 2"" Level Wenatchee, WA 98801, requesting an administrative review. Administrative review shall be available to the intended inmate recipient only for rejected correspondence based on its written or pictorial content. A request for an Administrative review must be in writing and received within 15 days of the date of notice, and should specify the reason(s) why the rejeclion should not be sustained. If the correspondence is returned with the mail violation notice, the rejected correspondence must be submitted with the review request. Ifno review is requested, the sender may correct or remove the portion of the document that violates jail policy; then re-send the non-violating mail back to the inmate.

Sender: _ _ _ _ _ _ _ _ _ _ __ __ __ Address: _ _ _ _ _ _ _ _ _ _ _ _ _ __

Green-Inmate

Yellow-Deputy Director

Deputy Signature & PIN,_ __ _ _ _ _ _ _ _ __

Date _ _ _ _ _ _ _ __

Pink-Records

Goldenrod~Property

 
 Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1 Jesse Wing, WSBA #27751
JesseW~nrrhb.conrr
2 Katherine C. Chanrrberlain, WSBA #40014
KatherineC~nrrhb.conrr
3 MacDonald Hoague & Bayless 705 Second Avenue, Suite 1500
4 Seattle, Washington 98104-1745 206-622-1604
5

-iW8R. Ror,cr til. Vi'lIaie,

6

7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

8 PRISON LEGAL NEWS, a project of
9 the HUMAN RIGHTS DEFENSE CENTER,

No. CV-II-337-EFS

10

CONSENT DECREE

Plaintiff,

11
v.

12 CHELAN COUNTY; CHELAN

13 COUNTY SHERIFF'S OFFICE; BRIAN BURNETT, individually and in his

14 capacity as Chelan County Sheriff; MIKE HARUM, individually and in his
15 capacity as Chelan County Sheriff; PHIL STANLEY, in his official and individual

16 capacity; and RON WINEINGER, in his official and individual capacity,

17 Defendants.

18

19

20

COME NOW the parties and request entry of the following:

21

1. Plaintiff Prison Legal News publishes and distributes a nrronthly

22 journal of corrections news and analysis, and offers and sells books about the

23 crinrrinal justice systenrr and legal issues affecting prisoners, to prisoners, lawyers,

CONSENT DECREE - 1
9870.04 ek182204

MAcDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1 courts, libraries, and the public throughout the Country. PLN engages in protected

2 speech and expressive conduct on matters of public concern. See Prison Legal

3 News v. Lehman, 397 F.3d 692 (9th Cir. 2005).

4

2. Defendant Chelan County is a municipal corporation formed under

5 the laws of the State of Washington.

6

3. Defendant Chelan County operates the Chelan County Regional

7 Justice Center and satellite buildings located in Wenatchee, Washington, which

8 house convicted prisoners and pretrial detainees charged with federal, state or local

9 cnmes. 4. Defendant Phil Stanley is the Director of the Chelan County Jail. He
10 11 reports directly to the Board of Commissioners of Chelan County. Ron Wineinger
12 is the Deputy Director of the Chelan County Jail. Stanley and Wineinger are

13 employed by and are agents of Chelan County. They are responsible for and

14 personally participated in creating, implementing, and enforcing the Jail's prisoner
15 mail policies at issue in this case. 16
5. All Defendants have represented to Plaintiff that since 2001, by 17
Chelan County Resolution, the Chelan County Sheriff has not been responsible for 18 19 the operations of the Chelan County Jailor for the training and supervision of the
20 Jail staff, and is not the policymaker for the Jail policy governing mail for

21 pnsoners. Plaintiff relies on these representations in entering into this consent

22 decree.
23

CONSENT DECREE - 2
9870.04 .kI82204

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1

6. On September 21,2010, Defendants enacted new policies that banned

2 all incoming periodicals and magazines except for one specific newspaper, and

3 banned all books of any kind. The Jail's Mail Policy stated, in pertinent part:

4

[The Chelan County Regional Justice Center] currently provides the

Wenatchee World newspaper to general population inmates. No

5

subscriptions to any periodical or magazine will be allowed.

6

7

LIST OF UNAUTHORIZED INCOMING MAIL

8

... Hardbound or paperback books of any kind.

9 Defendants refer to this mail policy as "Policy-Ill Inmate Mail Services."

10

7. The September 21,2010 mail policy does not provide an opportunity

11 for the sender to be heard to appeal the Jail's censorship decisions.

12

8. Defendants' "Mail Denial Notice" form states that the sender may

13 appeal the censorship decision, but denies the opportunity to appeal if the mail is

14 censored because it contains unauthorized attachments or enclosures.

15

9. In December 2010 through September 2011, and afterwards, Prison

16 Legal News mailed its monthly journal, a soft-cover book entitled Protecting Your

17 Health and Safety, informational brochures about subscribing to PLN and book

18 offers, and a catalog of books that PLN offers, in envelopes addressed personally

19 to prisoners at the Chelan County Jail.

20

10. The Jail censored at least 70 issues of the journal Prison Legal News

21 mailed to prisoners. For approximately one-half of the censored journals, PLN

22 received back a partial copy of the back cover marked "REFUSED" without

23

CONSENT DECREE - 3
9870.04ekI82204

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.l604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1 stating any reason for the censorship. For the other censored journals, the Jail did

2 not return the mail to PLN or provide any notice of censorship.

3

11. The Jail censored the one-page informational brochures, book

4 catalogs, and book offers that PLN mailed to at least 13 prisoners in envelopes.

5 The Jail did not return the mail to PLN or provide any notice of censorship for the

6 rejected mail.

7

12. The Jail censored 31 copies of the Protecting Your Health and Safety

8 book that PLN had mailed to prisoners, marked them "REFUSED" and returned

9 most, but not all, of the books to PLN.

10

13. The Jail sent PLN a "Mail Denial Notice" form for two items of

11 censored mail. The forms state that the Jail rejected PLN's mail for the following

12 reason: "Unauthorized attachments or enclosures in or on packages (no

13 administrative review)" and ''No Books/magazines." The Jail failed to provide a

14 similar form or other notice to PLN for the other 112 items censored, nor did it

15 provide any notice to PLN about how to appeal the censorship decisions.

16

14. The Jail's censorship of PLN's mail, and its failure to provide due

17 process notice, have frustrated PLN's organizational mission, and have caused

18 Prison Legal News additional financial harm in the form of diversion of its

19 resources, lost SUbscriptions, purchases of its publications, book purchases, and

20 return to sender charges.

21

15. Defendants used this "Policy-lIl Inmate Mail Services" to censor

22 publications, newspapers, magazines, journals, and correspondence from other

23 publishers, book distributors, companies, and individuals.

CONSENT DECREE - 4
9870.04 ek182204

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1

16. On September 9,2011, PLN filed a lawsuit in this matter. On October

2 21, 2011, PLN filed a motion for preliminary injunction.

3

17. The First Amendment of the United States Constitution protects a

4 publisher's right to correspond with prisoners through the mail. Thornburgh v.

5 Abbott, 490 U.S. 401, 408 (1989); Prison Legal News v. Cook, 238 F.3d 1145,

6 1149 (9th Cir. 2001); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir.

7 2005). "[W]hen a prison regulation impinges on inmates' constitutional rights, the

8 regulation is valid if it is reasonably related to legitimate penological interests."

9 Turner v. Safley, 482 U.S. 78, 89 (1987). To withstand First Amendment scrutiny,

10 ''prison authorities ... must first identify the specific penological interests involved

11 and then demonstrate both that those specific interests are the actual bases for their

12 policies and that the policies are reasonably related to the furtherance of the

13 identified interests. An evidentiary showing is required as to each point." Walker v.

14 Sumner, 917 F.2d 382,386 (9th Cir. 1990).

15

18. Defendants have not articulated a legitimate penological interest for

16 their September 21, 2010, mail policy prohibiting prisoners from receiving: (1)

17 periodicals or magazines, or other publications including catalogs and brochures,

18 or (2) paperback books. These policies are not reasonably related to legitimate

19 penological interests. Defendants' ban on incoming periodicals, magazines,

20 paperback books, and other publications including catalogs and brochures, was

21 unconstitutional under the First Amendment.

22

19. By enforcing the September 21, 2010 mail policies to censor PLN's

23 monthly journal, PLN's informational subscription and book brochures, PLN's

CONSENT DECREE - 5
9870.04 ekl82204

MACDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1 book catalog, and the Protecting Your Health and Safety book, addressed

2 personally to prisoners at the Chelan County Jail, Defendants violated the First

3 Amendment.

4

20. Defendants failed to afford due process protections to PLN when

5 censoring its mail to prisoners. Defendants' notice when censoring Prison Legal

6 News's publications, catalogs, books, and correspondence was inadequate and

7 failed to provide an opportunity to appeal.

8

21. Defendants failed to provide minimum procedural safeguards to PLN,

9 in violation of the Due Process Clause ofthe Fourteenth Amendment.

10

22. Defendants agree that a permanent injunction is appropriate.

11

23. The Ninth Circuit held in Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987)

12 that a party which prevails by obtaining a consent decree may recover attorneys'

13 fees under § 1988 for monitoring compliance with the decree, even when such

14 monitoring does not result in judicially sanctioned relief.

15

24. The Parties agree that PLN shall seek neither attorneys' fees nor costs

16 for monitoring compliance with this Order. This does not limit PLN's right to seek

17 fees and costs for any other action or enforcement effort (other than the cost of

18 monitoring compliance with this Order).

19

ACCORDINGLY, the COURT HEREBY ORDERS, ADmGES AND

20 DECREES as follows:

21

(1) Defendants' September 21, 2010 mail policy and their mail practices

22 pursuant to that policy violate the First and Fourteenth Amendments to the United

23 States Constitution in the following ways:

CONSENT DECREE - 6
9870.04 ek182204

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.l604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1

(a) The mail policy prohibited delivery of incoming periodicals and

2

magazines, and prohibited all other types of publications including catalogs

3

and brochures.

4

(b) The mail policy prohibited delivery ofpaperback books.

5

(c) Themail policy did not require that Defendants provide an

6

opportunity for the sender to be heard to appeal the Jail's censorship

7

decisions.

8

(d) The "Mail Denial Notice" form did not provide an opportunity

9

for the prisoner-addressee or sender to appeal the censorship decision if the

10

mail is rejected because it contains unauthorized attachments or enclosures.

11

(e) With two exceptions, Defendants failed to send a notice or

12

otherwise identify the reason for their decision to censor PLN's mail, and

13

failed to provide an opportunity to be heard to PLN.

14

(2) Defendants Chelan County, Director Phil Stanley, and Deputy

15 Director Ron Wineinger, and their agents and employees charged with the

16 operation of the Chelan County Jail, are further enjoined as follows:

17

(a) Defendants are enjoined from rejecting mail without giving

18

constitutionally adequate due process.

19

(b) Defendants are enjoined from rejecting incoming mail because

20

it is a periodical, magazine, or other publication including but not limited to

21

catalogs and brochures.

22

(c) Defendants are enjoined from rejecting incoming mail because

23

it is a paperback book.

CONSENT DECREE - 7
9870.04 ek182204

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue. Suite 1500 Seattle Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1

(3) This pennanent injunction applies to Defendants' successors,

2 including but not limited to any law enforcement agency, public entity, private

3 organization, public official, or private person, who takes over responsibility for

4 the operation of the Chelan County Jail in the future.

5

(4) Defendants are ordered to modify their mail policy and "Mail Denial

6 Notice" fonn to be consistent with this Order within thirty (30) days. Defendants

7 shall post the amendments in the inmates' living areas for a period of 90 days and

8 post the mail policy on their website, update their automated telephone message

9 and update applicable written material that are accessible to inmates.

10

(5) Plaintiff is a prevailing party entitled to payment by Defendants of

11 $180,000 which includes all claims for damages ($114,000.00), fees ($65,145.00)

12 and costs ($855.00) pursuant to 42 U.S.C. § 1983 and § 1988. Defendants will pay

13 this sum within ten (10) calendar days of the entry of this Order. By agreement by

14 the Parties, PLN shall not seek and shall not recover attorneys' fees or other relief

15 for the costs for monitoring compliance with this Order. This does not limit PLN's

16 right to seek fees and costs for any other action or enforcement effort (other than

17 the cost ofmonitoring compliance with this Order).

18

(6) The public interest is served by the entry of this Order, which protects

19 the constitutional rights of publishers and other persons who correspond with

20 prisoners by mail, and the right ofprisoners to send and receive mail.

21

(7) The Court retains jurisdiction of this matter for the purpose of

22 enforcement of its Order.

23

CONSENT DECREE - 8
9870.04 01<182204

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 52 Filed 12/01/11

1

tL ~ DATED tJojs

of

,2011.

2

3 4

( })~ L~

Hon. Edward F. Shea

5

United States District Court Judge

6

7 PRESENTED BY:

8 MacDONALD HOAGUE & BAYLESS

9 10 By:

.U-'

Je seWing, WSBA#27751

11

J sseW@MHB.com

Katherine C. Chamberlain, WSBA #40014

12

katherinec@mhb.com

13

Attorneys for Plaintiff

14 FOSTER PEPPER PLLC 15

16 By: IslMilton Rowland via e-mail approval

Milton G. Rowland, WSBA #15625

17

Attorney for Defendants

Foster Pepper PLLC

18

422 W. Riverside Ave., Suite 1310

Chelan, WA 99201

19

Phone: 5091777/1600

Fax: 5091777/1616

20

rowlm@foster.com

21
22
23

CONSENT DECREE - 9
9870.04 ek182204

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle Washington 98104
TeI206.622.l604 Fax 206.343.3961

 
 Case 2:11-cv-00337-EFS Document 6 Filed 10/17/11

1 Jesse Wing, WSBA #27751
JesseW~nihb.cona
2 Katherine C. Chanaberlain, WSBA #40014
KatherineC~nahb.cona
3 MacDonald Hoague & Bayless 705 Second Avenue, Suite 1500
4 Seattle, Washington 98104-1745
206-622-1604 5

Hon. Edward F. Shea

6

7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON 8

PRISON LEGAL NEWS, a project of 9 the HUMAN RIGHTS DEFENSE
CENTER, 10
Plaintiff, 11

No. CV-II-337-EFS
PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

v. 12

CHELAN COUNTY; CHELAN 13 COUNTY SHERIFF'S OFFICE; BRIAN
BURNETT, individually and in his 14 capacity as Chelan County Sheriff;
MIKE HARUM, individually and in his 15 capacity as Chelan County Sheriff; PHIL
STANLEY, in his official and individual 16 capacity; and RON WINEINGER, in his
official and individual capacity, 17

Defendants. 18

19

Plaintiff Prison Legal News respectfully naoves for an order prelinainarily

20 enjoining Defendants frona enforcing unconstitutional policies to censor Plaintiffs

21 subscription materials, book catalogs, and letters, naailed to prisoners at the Chelan 22 County Jail and ordering Defendants to afford Plaintiff due process notice and an

23 opportunity to be heard to challenge Defendants' censorship decisions.

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 1
9870.04 ejl00906

MAcDoNALD HOAGUE & BAYLESS
705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 6 Filed 10/17/11

1

The Court should grant Plaintiffs motion because Plaintiff is likely to

2 succeed on the merits of its First and Fourteenth Amendment claims, Plaintiff is

3 likely to suffer irreparable harm in the absence of preliminary injunctive relief, the

4 balance of equities tips in Plaintiffs favor, and an injunction is in the public

5 interest. This motion is based on Federal Rule of Civil Procedure 65(a), the

6 Memorandum of Points and Authorities in Support of Plaintiffs Motion for

7 Preliminary Injunction, the declarations of Paul Wright and Katherine

8 Chamberlain, the declarations of ten prisoners, and the exhibits attached to those

9 declarations, filed herewith.

10

DATED this 17th day of October, 2011.

11

MacDONALD HOAGUE & BAYLESS

12

13

14

i g, WSBA#

MI-IB.com

15

Kathe . e C. Chamberlain, WSBA # 40014

KatherineC@MHB.com

16

Attorneys for Plaintiff

17

18

19

20

21

22

23

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 2
9870.04 ejl00906

MAcDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 6 Filed 10/17/11

1

CERTIFICATE OF SERVICE

2

I certify that on the date noted below I electronically filed this document

3 entitled PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION with
4
the Clerk of the Court using the CMlECF system which will send notification of 5
such filing to the following persons: 6

7

Counsel for Defendants:

8

Milton G. Rowland

Foster Pepper PLLC

9

422 W Riverside Avenue, Suite 1310

Spokane, WA 99201

10

Phone: 509/777-1600

11

Fax: 509/777-1616

Email: rowlm@foster.com

12

13 DATED this 17th day of October, 2011, at Seattle, Washington.
14

15

16

17

istant

18

19

20

21

22

23

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 3
9870.04 ej100906

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 Jesse Wing, WSBA #27751
Jesse W@mhb.com 2 Katherine C. Chamberlain, WSBA #40014
KatherineC@mhb.com 3 MacDonald Hoague & Bayless
705 Second Avenue, Suite 1500 4 Seattle, Washington 98104-1745
(206) 622-1604 5

Hon. Edward F. Shea

6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

7

PRISON LEGAL NEWS, a project of

No. No. CV-11-337-EFS

8 the HUMAN RIGHTS DEFENSE

CENTER,

MEMORANDUM IN SUPPORT OF

9

PLAINTIFF'S MOTION FOR

Plaintiff,

PRELIMINARY INJUNCTION

10

v.

WITH ORAL ARGUMENT

11

CHELAN COUNTY, et. aI., 12

Defendants. 13

14

Prison Legal News respectfully moves for an order prelitninarily enjoining

15 Defendants from enforcing unconstitutionallnail policies used to censor Plaintiff s

16 subscription materials, books, book catalogs, and letters, and ordering Defendants

17 to afford to Plaintiff due process notice and an opportunity to be heard to challenge

18 Defendants' censorship decisions.

19

I. FACTS

20 A. Parties

21

Plaintiff Prison Legal News ("PLN") is a project of the Human Rights

22 Defense Center, a non-profit corporation. Declaration of Paul Wright ~2. PLN

23 publishes a monthly journal of corrections, news, and analysis by the same name:

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 1
9870.04 ej04221O.v2

MAcDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 Prison Legal News: Dedicated to Protecting Hun1an Rights. Id. ~4. PLN has over

2 7,000 subscribers in the U.s. and abroad, including attorneys, joulnalists, public

3 libraries, judges, and prisoners at about 2,200 correctional facilities nationwide.

4 Id. ~7. PLN engages in protected speech and expressive conduct on Inatters of

5 public concern, such as prison operations and conditions, prisoner health and 6 safety, and prisoners' rights. Id. ~~8; Exs. EE through 11;1 see Prison Legal News

7 v. Lehman, 397 F.3d 692 (9th Cir. 2005).

·8

Defendants include Chelan County and the Chelan County Sheriff's

9 Office-which operates the Chelan County Regional Justice Center ("RJC") and

10 satellite locations (collectively "the Chelan County Jail") in Wenatchee. These

11 facilities house convicted prisoners and pretrial detainees. See Ex. 2.

12

Defendant Mike Harum was the Sheriff when the mail policies at issue in

13 this case were created, approved, and implemented, and when the Jail started

14 censoring PLN's mail. See Exs. 1,4. Defendant Brian BUlnett succeeded

15 Mr. Harum as the Sheriff of Chelan County on January 1,2011 and is the current

16 Sheriff. See Exs. 3-4. The Sheriff is responsible for Jail operations, the training

17 and supervision of its staff, including those who interpret and implement the mail

18 policy for prisoners, and is the policy maker for the Jail. See RCW 36.28.010;

19 Davis v. Mason County, 927 F.2d 1473, 1480-1481 (9th Cir. 1991).

20

Defendant Phil Stanley is the Director of the Chelan County Jail and

21 approved the Inail polices at issue in this case. See Ex. 1. Defendant Ron

22 1 All lettered exhibits are attached to the Declaration of Paul Wright; all numbered
23 exhibits are attached to the Declaration of Katherine C. Chamberlain.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 2
9870.04 ej0422I O. v2

MAcDoNALD HOAGUE & BAYLESS
705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 Wineinger is the Deputy Director of the Jail. See Exs. 10-11. They are responsible

2 for developing, administering, and overseeing the operations of the Jail. See Ex. 5.

3 B. Chelan County Jail Censors PLN's Mail

4

In December 2010, Prison Legal News mailed its monthly journal, a soft-

5 cover book entitled Protecting Your Health and Safety, informational brochures,

6 and a catalog of books that PLN offers, addressed personally to prisoners at the

7 Chelan County Jail. See Wright Dec. ~~9, 14-50; e.g., Exs. A, M, EE through II.

8

The Jail censored at least thirty-seven (37) issues of the journal Prison Legal

9 News. Wright Dec. ~~34 through 48; Bibles Dec. ~6; Brixey Dec. ~6; Dronen Dec.

10 ~6; Foust Dec. ~6; Garcia Dec. ~6; Lehrman Dec. ~6; Quintana Dec. ~6; Wilsey

11 Dec. ~6; Wilson Dec. ~6; Yancey Dec. ~6. For 14 of its censored journals, PLN

12 received back a partial copy of the back cover marked "REFUSED" without

13 stating any reason for the censorship. Wright Dec. ~~38, 41, 44, 48.

14

Similarly, the Jail censored at least twenty (20) copies of Protecting Your

15 Health and Safety that PLN had mailed. Id. ~~14-33; Exs. A through J, RR

16 through AAA. The Jail marked "REFUSED" on most of the books and returned

17 nineteen of them to PLN. Id.

18

The Jail rejected the infonnational brochures, book catalogs, and book offers

19 that PLN mailed to eight (8) prisoners. Wright Dec. ~~49-51; Exs. GG, HH, II.

20 But the Jail did not return the mail to PLN. See Wright Dec. ~~51; Brixey Dec. ~4;

21 Dronen Dec. ~4; Foust Dec. ~4; Garcia Dec. ~4; Quintana Dec. ~4; Wilson Dec. ~4;

22 Yancey Dec. ~4.

23

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 3
9870.04 ej04221O.v2

MACDoNALD HOAGUE & BAYLESS
705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1

Although the Jail censored at least 65 pieces of mail,2 the Jail sent PLN

2 "Mail Denial Notice" forms for only two of them. Wright Dec. ~52; Exs. BB and

3 CC. The forms state that the Jail rejected PLN's Inail for the following reason:

4 "Unauthorized attacmnents or enclosures in or on packages (no administrative

5 review)" and "No Books/magazines." Id. The Jail failed to provide a similar form

6 or other notice to PLN for the other 63 items censored, nor did it provide any

7 notice to PLN about how to appeal the censorship decisions. Wright Dec. ~54.

8 C. Defendants Censored Mail Under Facially Unconstitutional Policies

9

1. Ban on Incoming Periodicals and Magazines

10

In Septelnber, 2010, the Chelan County Jail approved a policy that prohibits

11 prisoners from receiving periodicals or Inagazines, except the Wenatchee World:

12

[The Chelan County Regional Justice Center] currently provides the

13

Wenatchee World newspaper to general population inmates. No

subscriptions to any periodical or n1agazine will be allowed.

14 See Ex. 1 at III. D (emphasis added).

15 In the two lone "Mail Denial Notice" forms that the Jail sent to PLN,

16 Defendants reveal that they use this policy to censor PLN's Inail. See e.g. Ex. BB

17 ("No Books/magazines"). Indeed, in response to prisoner Carlos Garcia's

18 grievance, the Jail wrote: "Jail Policy prohibits periodicals, Prison Legal News is

19 such. Correspondence from Prison Legal News in [sic] placed in your property

20

21

22 2 Since filing its Complaint, PLN has received additional censored mail.
23 Therefore, the number stated here is higher than in the COlnplaint, Dkt. 1.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 4
9870.04 ej04221O.v2

MACDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 and you will receive a mail denial notice." Wright Dec. 'J61, Ex. 00.3

2

2. Ban on All Books

3

Defendants' new lTIail policy prohibits "hardbound or paperback books of

4 any kind." Ex. 1 at VII. 26. On its face, this policy prohibits all books, including

5 the paperback books that PLN mailed, which the Jail censored. See, e.g., Exs. A

6 though J, RR through AAA. When rejecting sixteen (16) books, the Jail wrote

7 "REFUSED" on the packages without explanation. Exs. A, C-E, G, I, J, RR-VV,

8 XX-ZZ. For the other books, the Jail wrote "RETURN," Ex. AAA, or wrote

9 nothing at all, Exs. Band F. The Jail failed to articulate its justification for

10 censoring the returned books, but it rejected thelTI in accordance with its policy that

11 bans all books.

12

3. Unconstitutional Lack ofProcedural Due Process Protections

13

Although Defendants' policy states that when an "unauthorized item" an~ives

14 in the mail the jail will complete a "Mail Denial Notice" "indicating the

15 unauthorized item" and will send a copy of the notice to the sender, see Ex. 1 at

16 VI.A., in practice, Defendants rarely do so. With only two exceptions, when

17 rejecting PLN's monthly journal, soft-cover books, infonnational subscription

18 brochures, book catalogs, and book offers, Defendants failed to send a Notice or

19 otherwise identify the reason for their decision to censor PLN's mail. Wright Dec.

20 'J'J14-54. In fact, Defendants did not return 33 pieces of censored mail to PLN-

21 half of what they censored-so PLN had no idea the Jail had rejected its mail.

22 3 But the Jail did not place the book in Mr. Garcia's property; it returned the book
23 to PLN without any explanation. Wright Dec. 'J18; Ex. E.

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 5
9870.04 ej042210.v2

MAcDONALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fa'C 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 Wright Dec. ~~21, 36, 39, 42, 46, 51. And, Defendants did not articulate their mail

2 policy, or direct PLN to where it could locate the policy or how to appeal the Jail's

3 censorship decisions. Id.; Exs. A-G; J-Z, R-AAA.

4

The Jail's mail policies do not afford the sender an opportunity to appeal the

5 censorship, see Ex. 1 at VI. C. And, the "Mail Denial Notice" form explicitly

6 denies the right to adlninistrative review when the Jail rejects Inail because of

7 "unauthorized attachments or enclosures in or on packages"-the reason stated in

8 the two forms that the Jail sent to PLN, ide and Exs. BB and CC.

9

By adopting and applying these policies to censor Prison Legal News's mail

10 to prisoners, and by doing so without due process, the Jail is irrationally interfering

11 with protected expressive activities and chilling future speech. Since PLN will

12 continue to communicate with prisoners confined in the Chelan County Jail,

13 Defendants' policies and practices will likely violate PLN's free speech rights in

14 the future without due process, causing irreparable harm. Wright Dec. ~~63-66.

15

II. ARGUMENT

16 A. Preliminary Injunction Standard

1 7

When asked to grant a preliminary injunction where the public interest is at

18 stake, a court must consider whether: (1) the plaintiff is likely to succeed on the

19 Inerits, (2) the plaintiff is likely to suffer irreparable harm in the absence of

20 preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction

21 is in the public interest. California Pharmacists Assoc. v. Maxwell-Jolly, 563 F.3d

22 847, 849 (9th Cir. 2009); see also Fed. R. Civ. P. 65(a).

23

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 6
9870.04 ej042210.v2

MAcDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
Tel 206.622.1604 Fax 206.343.3961

Case 2:11-cv-00337-EFS Document 8 Filed 10/17/11

1 B. PLN is Likely to Succeed on the Merits

2

1. Defendants' No-Publications Policy Infringes on Protected Speech

Plaintiff s right to correspond with prisoners through the mail is protected by 3

the First Amendment. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (publishers 4

have a protected First Amendlnent interest in access to prisoners); see also Prison 5

Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) ("PLN f'); Prison Legal 6

News v. Lehman, 397 F.3d 692,699 (9th Cir. 2005) ("PLN If'). 7

Prison Legal News's correspondence with prisoners is "core protected 8

speech" because it addresses issues of corrections policy and other social and
9

political matters of public concern, which "occupies the 'highest rung of the 10

hierarchy of First Amendment values,' and is entitled to special protection." 11

12 Connickv. Myers, 461 U.S. 138, 145 (1983) (internal citation omitted); PLN 1,238

F.3d at 1149. "[T]he conditions in this Nation's prisons are a matter that is both 13

newsworthy and of great public importance." Pel! v. Procunier, 417 U.S. 817, 14

830, n.7 (1974). A "blanket prohibition against receipt of the publications by any 15

prisoner carries a heavy presumption of unconstitutionality." Pepperling v. Crist, 16

678 F.2d 787, 791 (9th Cir. 1982). 17

To withstand First Alnendment scrutiny, a prison policy must be "reasonably 18

related to legitimate penological interests" under the four "Turner" factors: 19

(1) whether the regulation is rationally related to a legitimate and

20

neutral governmental objective, (2) whether there are alternative

avenues that remain open to the inmates to exercise the right, (3) the

21

impact that accolnmodating the asserted right will have on other

guards and prisoners, and on the allocation of prison resources; and

22

(4) whether the existence of easy and obvious alternatives indicates

that the regulation is an exaggerated response by prison officials.

23 PLN II, 397 F.3d at 699 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). The first

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1 of these factors can be dispositive. Id.; see also, PLN 1,238 F.3d at 1151.

2

Defendants are required under Turner to articulate how their policy furthers

3 a legitimate penological interest; it may not be presulTIed:

4

The initial burden is on the State to put forth a "common-sense"

connection between its policy and a legitimate penal interest. If the

5

State does so, the plaintiff must present evidence that refutes the

connection. Id. at 357. The State lTIUSt then present enough counter-

6

evidence to show that the connection is not so "remote as to render the

policy arbitrary or irrational." Id.

7 Clement v. Cal. Dept. o/Corrections, 220 F. Supp.2d 1098, 1109 (N.D. Cal. 2002)

8 (citing Frost v. Syn1ington, 197 F.3d 348 (9th Cir. 1999)). Although con4 ections

9 officials often emphasize that courts afford deference to their experience, it is well-

10 recognized that the Turner test "is not toothless." Thornburgh, 490 U.S. at 414.

11

Prison authorities cannot rely on general or conclusory assertions to

support their policies. Rather, they must first identify the specific

12

penological interests involved and then demonstrate both that those

specific interests are the actual bases for their policies and that the

13

policies are reasonably related to the furtherance of the identified

interests. An evidentiary showing is required as to each point.

14

Walker v. Sumner, 917 F.2d 382,386 (9th Cir. 1990) (emphasis added). The

15 government may not pile "conjecture upon conjecture" to justify infringement of

16 First Amendment rights. Reed v. Faulkner, 842 F.2d 960, 963-64 (7thCir. 1988).

17

a. First Factor: The Ban is Irrational 18

19

Applying Turner, the Ninth Circuit has repeatedly struck down prison mail

20 policies and rejected various rationales offered by the government to arbitrarily

21 restrict a publisher's right to comlTIunicate by lTIail with prisoners. See PLN II, 397

22 F.3d 692, 699-701 (9th Cir. 2005) (non-subscription bulk mail and catalogs);

23 Ashker v. Cal. Dept. o/Corrections, 350 F.3d 917, 924 (9th Cir. 2003) (requiring

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1 approved vendor labels); PLN I, 238 F.3d 1145, 1149-1151 (9th Cir. 2001) (bulk

2 rate non-profit subscription mail); Morrison v. Hall, 261 F.3d 896, 904-05 (9th Cir.

3 2001) (for-profit bulk rate mail); Crofton v. Roe, 170 F.3d 957, 959-61 (9th Cir.

4 1999) (gift subscriptions).

5

Here, the saIne outcome is likely. Other corrections institutions seem to

6 have already covered the gamut of rationales to support such blanket bans, without

7 success. Defendants cannot articulate any new justification for the Jail's extremely

8 broad censorship policy, banning all mail that is a periodical, lnagazine, or book

9 ("no-publications policy"). Plaintiff is likely to succeed on the lnerits.

10

(1) The Ninth Circuit Has Rejected Similar Restrictions Based on

11

Clailned General Concerns About Security and Staff Time

12

In PLN I, the Oregon DOC asserted that banning all standard-rate mail

13 enhanced prison security because staff could concentrate on "timely processing

14 acceptable mail and thoroughly inspecting such mail for content and contraband."

15 238 F.3d at 1151. The Ninth Circuit rejected this rationale: "all incoming mail

16 must be sorted ... distinguishing between non-profit organization standard mail

17 and regular/commercial standard mail is not unduly cumbersome[.]" Id.

18 Similarly, in PLN II, when the Washington DOC claimed that it banned non-

19 subscription bulk lnail to reduce mail volume and increase security, the Court

20 rej ected this rationale again: "While mailroom staff may have to spend more tilne

21 analyzing the content of non-subscription bulk rate mail and catalogs, such a

22 ban ... is not rationally related to the goal of reducing contraband." 397 F.3d at

23 700.

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Here, too, Defendants' no-publications policy is a grossly overbroad and

2 arbitrary means of achieving their goals.

3

(a) The Policy is Not Rationally Related to Saving Time and Money

4

Inspecting and delivering periodicals, lnagazines, or books is not

5 significantly lnore burdensome than censoring them, which includes: stalnping the

6 lnail "Return to Sender"; writing "REFUSED"; returning the mail; filling out a

7 notice fonn; and delivering the notice to the prisoner. And, if Defendants provided

8 constitutionally required notice and an opportunity to be heard, the Jail would also

9 send a Denial Notice to the sender, and respond to grievances and inquiries about
°1 the censorship. See e.g. Exs. JJ through QQ (grievance comlnunications). Thus,

11 any assertion that the Jail's policy saves time and money is meritless.

12

Even if it could show that its no-publications policy leads to some savings of

13 time or lnoney, the Jail nevertheless cannot place constitutionally-protected speech

14 on the chopping block to cut costs. In other contexts where the constitutionality of

15 prison regulations has been challenged, the Ninth Circuit has held that "efficiency

16 and cost effectiveness" are not "valid security concerns." Jeldness v. Pearce, 30

17 F.3d 1220, 1230 (9th Cir. 1994) (emphasis in original)

18

(b) Defendants' Policy Restrictions are Overbroad and Arbitrary

19

The no-publications policy is a substantially overbroad means of enhancing

20 security, if that is the Jail's intent. Since before September 2010, the Jail has

21 screened for true security threats; its lnail policy banned:

22

... [m]aterial that threatens or is detrimental to the safety, security, or

23

discipline ofthe facility . .. mail containing information that, if

communicated, could create a risk of violence and/or physical harm to

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1

any person ... gang-related material. .. contraband. ... plans to

2

escape ... instructions for the Inanufacture or use of weapons, ammunition, explosives . .. threats ofphysical harm . ..

3

4 See Ex. 1 at VII, (emphasis added). But its new ban captures all publications,

5 including those least likely to contain contraband-like books from publishers.

6

Defendants have no legitiInate justification for banning all magazines,

7 periodicals, and books or for censoring all book catalogs, subscription infonnation,

8 and book offers-which the Jail's policy does not explicitly prohibit but in practice

9 the Jail censors. Censorship of all these materials is arbitrary-and hannful.

10 Journals, books, newspapers, and book catalogs, often contain core political and

11 social speech. They facilitate the exchange of information on poor jail conditions

12 and legal rights, and on how to address medical, psychological, and educational

13 needs. See e.g. Exs. EE and FF. For centuries, books, Inagazines, and newspapers

14 have facilitated learning, awareness of civil rights, and the exchange of ideas.

15

Defendants' blanket ban on all books, magazines, periodicals, and their

16 practice of censoring book catalogs, subscription information, and book offers

17 leaves prisoners at the Chelan County Jail with no meaningful alternative way to

18 obtain educational and political materials while incarcerated or learn the news-

19 other than the topics that the Wenatchee World decides are newsworthy and the Jail

20 decides to keep in its library.

21

Instead of limiting the amount of property that an inmate may retain, or

22 censoring only mail that contains prohibited Inaterial such as pornography or

23 instructions on Inanufacturing explosive materials, the Defendants have censored

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1 all publications. In addition to censoring all ofPLNs' journals and books,

2 Defendants' policies require censorship of all publications from Merriam-

3 .Webster's Dictionary to The New York Times and National Geographic, and not to

4 mention publications on police practices, disability rights, religious freedoln, and a

5 variety of other topics from the United States Department of Justice.

6

(c) Defendants' Blanket Ban Deters Speech

7

If Defendants' new mail policy saves theln time and money, then it is

8 because the restrictions deter, chill, and suppress protected speech. Banning all

9 books, periodicals, and Inagazines, and censoring all infonnational brochures

10 substantially reduces speech by deterring publishers, booksellers, and others from

11 cOlnmunicating at all.

12

Nearly every time that the Jail censored and returned a PLN book or journal,

13 the post office charged PLN for the mail 's return trip from Washington to

14 Vennont. See Wright Dec. ~~14-18, 20, 22, 23, 27-29, 31, 32, 38,41, 44, 48.

15 Censorship and the costs associated with it likely deter publishers from sending

16 mail to Chelan County Jail. See, e.g., Ashker v. California Dept. o/Corrections,

17 350 F.3d 917,921 (9th Cir. 2003). If mail volume has decreased it is because·

18 Defendants have stamped out protected speech.

19

(d) The Policy Impedes Rehabilitation

20

Defendant's restrictive mail policy hampers the penological objective of

21 rehabilitation. The Supreme Court has recognized that "the weight of professional

22 opinion seems to be that inmate freedom to correspond with outsiders advances

23 rather than retards the goal ofrehabilitation[.]" Procunier v. Martinez, 416 U.S.

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1 396,412-413 (1974), overruled in pali on other grounds by Thornburgh v. Abbott,

2 490 U.S. 401 (1989). Indeed:

3

Constructive, wholesome contact with the comlnunity is a valuable

therapeutic tool in the overall correctional process....

4

Correspondence with melnbers of an irnnate's family, close friends,

associates and organizations is beneficial to the Inorale of all confined

5

persons and may form the basis for good adjustment in the institution

and the cOlnmunity.

6 Martinez, 416 U.S. at 412 n. 13 (quoting Policy Statement 7300.1A of the Federal

7 Bureau of Prisons and Policy Guidelines for the Association of State Correctional

8 Adlninistrators); see also Morrison v. Hall, 261 F.3d 896, 904 n. 7 (9th Cir. 2001).

9

Education during incarceration is widely recognized as "a path to increased

10 employment, reduced recidivism, and improved quality of life." The Urban

11 Institute Justice Policy Center, From the Classroon1 to the Comn1unity: Exploring

12 the Role ofEducation during Incarceration and Reentry (2009), at 2 (Ex. 13). The

13 Bureau of Prisons states:

14 Research demonstrates that education can change thinking, encourage

15

pro-social behavior, increase employment, and reduce recidivism.

Education's power to transform lives in both tangible and intangible

16

ways makes it one ofthe most valuable and effective tools we may

17

have for helping people rebuild their lives after incarceration, as well as for combating and reducing criminal justice costs.

18 19 Id. at 42 (Ex. 13). Defendants' blanket ban on publications severely impedes 20 prisoners' ability to educate themselves during incarceration and thus retards the

21 penological goal of rehabilitation.

22

As in PLN I and PLN II, Plaintiff will likely show Defendant's policy

23 banning all books, periodicals, newspapers, book catalogs, Inagazines, and

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1 correspondence is not rationally related to a legitimate penological objective.

2

b. Second Turner Factor: Alternatives for Plaintiff

3

The second Turner factor is whether Defendants afford Plaintiff an

4 alternative means to exercise its constitutional rights. They do not. PLN has no

5 practical way to reach its intended audience.

6

PLN cannot effectively or reasonably communicate its written speech by

7 telephone or fly from Vermont to Washington to meet with prisoners. And,

8 Defendants' practice of censoring PLN's book catalogs, subscription brochures,

9 and book offers-which are not printed in the fonn of a book or periodical-shows

10 that Defendants will squelch any effort by PLN to deliver the information

11 contained in its journal or books via SOine other printed form.

12

Courts have rejected mail policies requiring speech to be communicated in a

13 particular medium. In Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), the Ninth

14 Circuit rejected the Oregon DOC's argument that it could ban bulk-rate mail

15 because prisoners may listen to radio or watch television instead: "radio and

16 television ... should not be considered a substitute for reading newspapers and

17 magazines." Id. at 904. See also Mann v. Smith, 796 F.2d 79, 83 (5th Cir. 1986).

18

Costly alternatives have likewise been held inadequate. In PLN 1,238 F.3d

19 at 1149, and Morrison, 261 F.3d at 904, the Ninth Circuit denied the governments'

20 claims that banning bulk rate mail was permissible because publishers could send

21 mail via first or second class, holding that forcing a publisher to "take additional

22 costly steps" to communicate with prisoners is unconstitutional.

23

c. Third Turner Factor: Effect on Defendants' Resources

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1

The third Turner factor is the effect on prison staffing and resource

2 allocation. Turner, 482 U.S. at 90. "[T]he policies followed at other well-run

3 institutions [are] relevant to a determination of the need for a particular type of

4 restriction." Morrison, 261 F.3d at 905 (quoting Martinez, 416 U.S. at 414 n.14).

5

PLN has sent its letters, catalogs, and brochures to thousands of prisoners

6 country-wide since its founding in 1990. Wright Dec. ~6. PLN distributes its

7 journal to about 2,200 cOlTectional facilities, including the Federal Bureau of

8 Prisons ("BOP") housing 21 7,582 prisoners and the Washington Department of

9 Corrections ("WDOC") housing over 18,000, Exs. 7, 9; Wright Dec. ~7.

10

Neither the BOP nor the WDOC ban books, periodicals, newspapers,

11 catalogs, or magazines, and other jails allow these materials as well. See Exs. 6, 8,

12 14-16 (King County, Pierce County, and Spokane County Jail mail policies). This

13 is strong evidence the third Turner factor favors PLN. And, before September

14 2010, the Jail managed without its draconian blanket ban, and now must still

15 handle all mail it receives, which includes sending due process notice for allinail

16 that it censors-undermining any argument that delivering mail rather than

17 censoring the mail is a drain on resources.

18

d. Fourth Turner Factor: Defendants' Alternatives

19

The fourth Turner factor is whether prison authorities have "readily

20 available" alternatives. "[T]he existence of obvious, easy alternatives may be

21 evidence that the regulation is not reasonable, but is an 'exaggerated response' to

22 prison COnCelTIs." Turner, 482 U.S. at 90. Regardless of the Defendants' claimed

23 justifications, the fact that more than 2,000 cOlTectional facilities nationwide accept

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1 PLN's materials suggests that the Jail's ban is an exaggerated response. See

2 Hrdlicka v. Reniff, 631 F.3d 1044, 1055, (9th Cir. 2011) (holding widespread

3 distribution of publisher's materials suggests jails' ban is exaggerated response).

4 Indeed, until Septelnber of last year, the Jail accepted books and periodicals too.

5

2. The Ninth Circuit has Held that Banning Book Catalogs is Irrational

6

Prison Legal News is likely to show that Defendants' censorship of catalogs

7 is unconstitutional. In PLN II, the Ninth Circuit held that a blanket ban on catalogs

8 violates the First Amendment and affinned a permanent injunction on the ban by

9 the Washington DOC. 397 F.3d 692, 696 (9th Cir. 2005). A political subdivision

10 of Washington, the Chelan County Jail is bound by Ninth Circuit precedent.

11

Book catalogs can spark interest in science, literature, music, art, and human

12 rights. PLN's 2010 book catalog describes 43 books and resource materials on the

13 rights of prisoners regarding health and safety, self-representation in court, job

14 searches, successful reentry upon release, and the mental health crisis in prisons.

15 See Ex. GGG. Since the Ninth Circuit has already held that censoring catalogs is

16 irrational, and unconstitutional, no analysis under the other factors is warranted.

17

3. Defendants Fail to Afford Due Process

18

The Supreme Court long ago recognized that a publisher's right to

19 comlnunicate with prisoners is rooted not only in the First Amendment, but also in

20 the Fourteenth Amendment. Pell v. Procunier, 417 U.S. 817, 832 (1974). Thus,

21

[T]he decision to censor or withhold delivery of a particular letter

22

must be accompanied by minimum procedural safeguards. The

interest of prisoners and their cOlTespondents in uncensored

23

communication by letter, grounded as it is in the First Amendment, is

plainly a "liberty" interest within the meaning of the Fourteenth

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1

Amendinent even though qualified of necessity by the circulnstance of

2

iI.mnvparSiIs.oonn.ment. As such, it is protected from arbitrary governmental

3 Martinez, 416 U.S. at 417-18. Repeatedly, the Ninth Circuit and Eastern District

4 of Washington have reaffirmed this core principle that the Constitution requires

5 notice and an opportunity to appeal prison censorship. See, e.g., PLN 1,238 F.3d

6 at 1152-53; PLN II, 397 F.3d at 701; Krug v. Lutz, 329 F.3d 692, 696-98 (9th Cir.

7 2003); Miniken v. Walter, 978 F.Supp. 1356, 1363-64 (E.D. Wa. 1997).

8

Publishers have a right to procedural due process because:

9

Without notifying the free citizen of the impending rejection, he

would not be able to challenge the decision which may infringe his

10

right to free speech ... [and] since the inmate-recipient would not

have seen the contents of the withheld letter, he Inay require the aid of

11

the author to meaningfully challenge the rejection decision.

12 Martin v. Kelley, 803 F.2d 236,243-44 (6th Cir. 1986); see also, Montcalm Pub.

13 Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996); C%ne v. Manson, 409 F.Supp.

14 1033, 1042 (D. Conn. 1976).

15

Although Defendants are constitutionally mandated to afford due process

16 protections to publishers when censoring prisoner Inail, Defendants have plainly

17 failed to do so. For all but two of 65 the censored items, Defendants gave PLN no

18 notice of the reason they censored its mail. They merely marked the books and

19 journals "REFUSED," without any explanation. See Exs. A, C, D, E, G, I, M

20 through V, Y, RR through AAA. This perfunctory notation did not inform PLN

21 what the Jail claims was objectionable, what policy applies, and how the publisher

22 could cure any defect. And when Defendants censored PLN's brochures and book

23 offers, they did not retuin them, so PLN did not even know they were refused. See

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1 Wright Dec. ~~49-51; See Brixey Dec. ~4; Dronen Dec. ~4; Foust Dec. ~4; Garcia

2 Dec. ~4; Quintana Dec. ~4; Wilson Dec. ~4; Yancey Dec. ~4.

3

Defendants' policy does not provide an opportunity for the sender to appeal

4 the Jail's censorship decisions. See Ex. 1 at VI. A. and C. And their "Mail Denial

5 Notice" fonn explicitly denies the prisoner and sender the opportunity to appeal if

6 the mail is censored because it contains unauthorized attacmnents or enclosures.

7 See Exs. BB and CC.

8

Indeed, Defendants failed to provide Plaintiff with any opportunity to

9 challenge the censorship decisions. Defendants' handwritten note or stamp

10 ("REFUSED") provides no infonnation about how to challenge rej ection

11 decisions, who to contact, what the appeal must contain, or any deadlines. See e.g.

12 Ex. A. The two "Mail Denial Notice" forms that Defendants sent to PLN fail to

13 identify the mail that was censored and wrongfully deny adlninistrative review of

14 the censorship decisions. See Exs. BB and CC ("no administrative review").

15

An opportunity to be heard is a crucial, constitutionally-mandated chance to

16 correct errors and challenge censorship decisions, which Defendants routinely

17 denied to PLN. PLN has a strong likelihood of showing that Defendants have

18 violated, and will continue to violate, PLN's procedural due process rights.

19 C. 20

PLN Continues to Suffer Irreparable Harm as a Result of the Censorship "[A]n alleged constitutional infringement will often alone constitute

21 irreparable harm." Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th

22 Cir. 1997) (internal citation omitted). Indeed, the Fourth Circuit has held that the

23 court "has no discretion to deny relief by prelilninary injunction to a person who

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1 clearly establishes by undisputed evidence that he is being denied a constitutional

2 right." Henry v. Greenville Airport Com 'n, 284 F.2d 631,633 (4th Cir. 1960).

3

Here, Defendants continue to inflict irreparable harm on PLN by enforcing

4 their blanket policies to censor PLN periodicals, books, book catalogs, and

5 correspondence mailed to prisoners, and deny PLN due process notice and the

6 opportunity to challenge the censorship. Wright Dec. ~~63-66. "The loss of First

7 Amendment freedoms, for even Ininima1 periods of time, unquestionably

8 constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).

9 D. The Balance of Hardships Tips In Favor of Plaintiff

10

Here, the irreparable hann suffered by Prison Legal News is concrete,

11 severe, and ongoing. The govermnent will continue to censor PLN Inai1 to

12 prisoners, without due process, banning PLN's core protected speech that criticizes

13 government policies, educates prisoners on their rights, and offers insights on the

14 criminal justice system and jail conditions. In contrast, any potential injury to

15 Defendants is minimal and speculative. No great cost or expenditure of time is

16 required to lift the policies to allow PLN and other publishers to communicate with

17 prisoners. The balance of hardships strongly favors Plaintiff.

18 E. The Public Interest Favors Free Flow of Information

19

The First Amendment furthers a compelling public interest. "[P]rior

20 restraints on speech and publication are the Inost serious and the least tolerable

21 infringement on First Amendment rights." Nebraska Press Ass 'n v. Stuart, 427

22 U.S. 539,559 (1976). The public has an important interest in protecting the

23 "marketplace of ideas" wherever it may be found, and in the continued vitality of

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1 the Bill of Rights. At the heart of the First Amendment is the right of the press to

2 disseininate and exchange information on iInportant issues of public concern, in

3 particular when that discussion is critical of the government. The public interest

4 weighs strongly in favor of preliminarily enjoining Defendants from enforcing

5 their unconstitutionally overbroad restrictive mail policy.

6

III. CONCLUSION

7

Plaintiff has shown a strong likelihood of success on the merits and

8 irreparable harm, whereas Defendants will suffer no meaningful hann froin entry

9 of a preliIninary injunction. Accordingly, Plaintiff respectfully asks the Court to

10 enter a preliininary injunction, and waive any bond.

11

DATED this 17th day of October, 2011.

12

MacDONALD HOAGUE & SAYLESS

13

14

15

16

17

18

19

20

21

22

23

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1

CERTIFICATE OF SERVICE

2

I certify that on the date noted below I electronically filed this document

3 entitled MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION with the Clerk of the Court using the CMJECF
4
systeln which will send notification of such filing to the following persons: 5
Counsel for All Defendants: 6

Milton G. Rowland 7 Foster Pepper PLLC

8 422 W Riverside Avenue, Suite 1310 Spokane, WA 99201

9 Phone: 509/777-1600

Fax: 509/777-1616

10 Email:

rowhn@foster.com

11

DATED this 17th day of October, 2011, at Seattle, Washington.

12

13

14

~M~~.~

15

nna Carranza, Legal As .stant

16

17

18

19

20

21

22

23

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION - 21
9870.04 ej042210.v2

MAcDoNALD HOAGUE & BAYLESS 705 Second Avenue, Suite 1500 Seattle, Washington 98104
TeI206.622.1604 Fax 206.343.3961

 
 Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 1 of 6
CLOSED,JURY,LC02
Eastern District of Washington U.S. District Court (Spokane) CIVIL DOCKET FOR CASE #: 2:11−cv−00337−EFS

Prison Legal News v. Chelan County et al Assigned to: Senior Judge Edward F. Shea Cause: 42:1983 Civil Rights Act
Plaintiff Prison Legal News a project of the Human Rights Defense Center

Date Filed: 09/09/2011 Date Terminated: 12/01/2011 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jesse A Wing MacDonald Hoague &Bayless 705 2nd Avenue Suite 1500 Seattle, WA 98104 206−622−1604 Fax: 206−343−3961 Email: jessew@mhb.com ATTORNEY TO BE NOTICED
Katherine C Chamberlain MacDonald Hoague &Bayless 705 Second Avenue Suite 1500 Seattle, WA 98104−1745 206−622−1604 Fax: 206−343−3961 Email: katherinec@mhb.com ATTORNEY TO BE NOTICED
Lance Weber Human Rights Defense Center 1037 Western Ave Second Floor West Brattleboro, VT 05303 802−257−1342 Fax: 866−228−1681 Email: lweber@humanrightsdefensecenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Chelan County
Defendant Chelan County Sheriff's Office

represented by Milton George Rowland Foster Pepper PLLC 422 W. Riverside Suite 1310 Spokane, WA 99201 509−777−1610 Fax: 509−777−1616 Email: rowlm@foster.com ATTORNEY TO BE NOTICED
represented by Milton George Rowland (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 2 of 6

Defendant
Brian Burnett individually and in his capacity as Chelan County Sheriff

represented by Milton George Rowland (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mike Harum individually and in his capacity as Chelan County Sheriff

represented by Milton George Rowland (See above for address) ATTORNEY TO BE NOTICED

Defendant
Phil Stanley in his official and individual capacity

represented by Milton George Rowland (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ron Wineinger in his official and individual capacity

represented by Milton George Rowland (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/09/2011 09/13/2011 10/10/2011 10/10/2011 10/13/2011 10/17/2011 10/17/2011
10/17/2011 10/17/2011
10/17/2011

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 350; Receipt # SPO014649). Summons issued. Jury Demand. Filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet)(RF, Case Administrator) (Entered: 09/09/2011)
2 NOTICE by Prison Legal News re 1 Complaint Amended Civil Cover Sheet (Chamberlain, Katherine) (Entered: 09/13/2011)
3 AFFIDAVIT of Service for Summons &Complaint served on Brad Posenjak, Chief Deputy Auditor, filed by Prison Legal News. (Attachments: # 1 Supplement)(Wing, Jesse) (Entered: 10/10/2011)
4 AFFIDAVIT of Service for Summons &Complaint served on Betty Taylor, Civil Deputy, filed by Prison Legal News. (Attachments: # 1 Supplement)(Wing, Jesse) (Entered: 10/10/2011)
5 NOTICE of Appearance by Milton George Rowland on behalf of All Defendants (Rowland, Milton) (Entered: 10/13/2011)
6 MOTION for Preliminary Injunction by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/17/2011)
7 NOTICE of Hearing on Motion Oral Argument Requested re 6 MOTION for Preliminary Injunction : Motion Hearing set for 12/13/2011 10:30 AM in Richland before Judge Edward F. Shea. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/17/2011)
8 MEMORANDUM in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/17/2011)
9 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/17/2011)
10 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first five pages are a duplicate of ECF No. 9 − this is a continuation of exhibits

Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 3 of 6

10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011

(CV, Case Administrator). (Entered: 10/17/2011)
11 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 12)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first five pages are a duplicate of ECF No. 9 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
12 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Errata 13 − Part 1)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first five pages are a duplicate of ECF No. 9 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
13 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 14, # 2 Exhibit 15, # 3 Exhibit 16)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first five pages are a duplicate of ECF No. 9 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
14 DECLARATION by Katherine Chamberlain in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 13−Part 2)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first five pages are a duplicate of ECF No. 9 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
15 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/17/2011)
16 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit F, # 2 Exhibit G, # 3 Exhibit H, # 4 Exhibit I, # 5 Exhibit J)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first 26 pages are a duplicate of ECF No. 15 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
17 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first 26 pages are a duplicate of ECF No. 15 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
18 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit P, # 2 Exhibit Q, # 3 Exhibit R, # 4 Exhibit S, # 5 Exhibit T)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first 26 pages are a duplicate of ECF No. 15 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
19 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit U, # 2 Exhibit V, # 3 Exhibit W, # 4 Exhibit X, # 5 Exhibit Y)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first 26 pages are a duplicate of ECF No. 15 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)
20 DECLARATION by Paul Wright in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit AA, # 2 Exhibit BB, # 3 Exhibit CC, # 4 Exhibit DD)(Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text; the first 26 pages are a duplicate of ECF No. 15 − this is a continuation of exhibits (CV, Case Administrator). (Entered: 10/17/2011)

Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 4 of 6

10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011

21 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh EE−Part 1) by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
22 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh EE−Part 2) by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
23 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh EE−Part 3) by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to link to motions (CV, Case Administrator). (Entered: 10/18/2011)
24 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh EE−Part 4) by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
25 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh FF) by Prison Legal News. (Attachments: # 1 Exhibit GG, # 2 Exhibit HH, # 3 Exhibit II, # 4 Exhibit JJ)(Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
26 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh KK) by Prison Legal News. (Attachments: # 1 Exhibit LL, # 2 Exhibit MM, # 3 Exhibit NN, # 4 Exhibit OO, # 5 Exhibit PP)(Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
27 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh QQ) by Prison Legal News. (Attachments: # 1 Exhibit RR, # 2 Exhibit SS, # 3 Exhibit TT, # 4 Exhibit UU, # 5 Exhibit VV)(Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
28 Additional Attachments to Main Document re 15 Declaration in Support of 6 Motion for Preliminary Injunction (Exh WW) by Prison Legal News. (Attachments: # 1 Exhibit XX, # 2 Exhibit YY, # 3 Exhibit ZZ, # 4 Exhibit AAA)(Wing, Jesse) Modified on 10/18/2011 to link to motion (CV, Case Administrator). (Entered: 10/18/2011)
29 DECLARATION by Cameron Bibles in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
30 DECLARATION by Scott Brixey in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
31 DECLARATION by David Dronen in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
32 DECLARATION by Donald Foust in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
33 DECLARATION by Carlos Garcia in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)

Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 5 of 6

10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011
10/24/2011 10/24/2011
11/10/2011 11/16/2011 11/23/2011 11/29/2011 11/29/2011 11/29/2011

34 DECLARATION by Mark Lehrman in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
35 DECLARATION by Jose Quintana in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
36 DECLARATION by Terry Wilsey in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
37 DECLARATION by Christopher Wilson in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
38 DECLARATION by Aaron Yancey in Support re 6 MOTION for Preliminary Injunction filed by Prison Legal News. (Wing, Jesse) Modified on 10/18/2011 to remove "quarterly" from the docket text (CV, Case Administrator). (Entered: 10/18/2011)
39 NOTICE of Hearing on Motion − By Court − Text entry;no PDF document. Oral Argument Requested re 6 MOTION for Preliminary Injunction : Motion Hearing RESET for 12/13/2011 10:30 AM in Spokane before Judge Edward F. Shea. (DB, Courtroom Deputy) Modified on to remove "quarterly" from the docket text 10/18/2011 (CV, Case Administrator). (Entered: 10/18/2011)
40 MOTION to Appear Pro Hac Vice re Attorney: Lance Weber. Filing fee $ 150, receipt number 0980−1197430. by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Wing, Jesse) (Entered: 10/24/2011)
41 NOTICE of Hearing on Motion re 40 MOTION to Appear Pro Hac Vice re Attorney: Lance Weber. Filing fee $ 150, receipt number 0980−1197430. : Motion Hearing set for 11/23/2011 06:30 PM Without Oral Argument before Judge Edward F. Shea. (Wing, Jesse) Modified docket text on 10/25/2011 to reflect hearing is without oral argument instead of in Richland (CV, Case Administrator). (Entered: 10/24/2011)
42 Stipulated MOTION for Extension of Time to File Response/Reply by All Parties. (Attachments: # 1 Text of Proposed Order)(Rowland, Milton) (Entered: 11/10/2011)
43 ORDER GRANTING IN PART THE PARTIES' STIPULATED MOTION REGARDING EXTENSION OF BRIEFING DEADLINES; granting in part and denying in part 42 Motion for Extension of Time to Briefing Deadlines. Signed by Judge Edward F. Shea. (CV, Case Administrator) (Entered: 11/16/2011)
44 ORDER GRANTING PERMISSION TO PARTICIPATE PRO HAC VICE granting 40 Motion for Leave to Appear Pro Hac Vice. Added Attorney Lance Weber for Prison Legal News. Signed by Judge Edward F. Shea. (VR, Courtroom Deputy) (Entered: 11/23/2011)
45 Joint MOTION for Permanent Injunction (Consent Decree) by All Parties. (Attachments: # 1 Text of Proposed Order Consent Decree)(Chamberlain, Katherine) (Entered: 11/29/2011)
46 MEMORANDUM in Support re 45 Joint MOTION for Permanent Injunction (Consent Decree) filed by All Parties. (Attachments: # 1 Exhibit Resolution)(Chamberlain, Katherine) (Entered: 11/29/2011)
47 NOTICE of Hearing on Motion re 45 Joint MOTION for Permanent Injunction (Consent Decree) : Motion Hearing set for 11/30/2011 06:30 PM in Without Oral Argument before Judge Edward F. Shea. (Chamberlain, Katherine) (Entered: 11/29/2011)

Case: 2:11-cv-337 As of: 09/13/2012 09:11 AM PDT 6 of 6

11/29/2011 11/29/2011 11/29/2011 12/01/2011 12/01/2011

48 Joint MOTION to Expedite Hearing on Jt. M. for Entry of Consent Decree (Dkt. 45) by All Parties. (Attachments: # 1 Text of Proposed Order)(Chamberlain, Katherine) (Entered: 11/29/2011)
49 MEMORANDUM in Support re 48 Joint MOTION to Expedite Hearing on Jt. M. for Entry of Consent Decree (Dkt. 45) filed by All Parties. (Chamberlain, Katherine) (Entered: 11/29/2011)
50 NOTICE of Hearing on Motion re 48 Joint MOTION to Expedite Hearing on Jt. M. for Entry of Consent Decree (Dkt. 45) : Motion Hearing set for 11/30/2011 06:30 PM in Without Oral Argument before Judge Edward F. Shea. (Chamberlain, Katherine) (Entered: 11/29/2011)
51 ORDER GRANTING THE PARTIES' JOINT MOTION FOR ENTRY OF CONSENT DECREE AND RELATED MOTION TO EXPEDITE − granting 45 Motion for Permanent Injunction; and granting 48 Motion to Expedite. Signed by Judge Edward F. Shea. (CS, Case Administrator) (Entered: 12/01/2011)
52 CONSENT DECREE signed by Judge Edward F. Shea. (CS, Case Administrator) (Entered: 12/01/2011)