Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 1 of 31

1 Robert R. Hager, Esq. #1482 HAGER & HEARNE
2 910 East Parr Blvd., Suite 8 Reno, NV 89512
3 Telephone: #775/329.5800 Facsimile: #775/329.5819
4 Attorney For Plaintiffs

5

6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8

9 DONALD YORK EVANS, and JOHN WITHEROW
10 Plaintiffs,
11 v.
12 LENARD VARÉ, ROSEMARY
13 SEALS, KELLY BELANGER, ROBERT LEGRAND, CRAIG FARWELL, GLEN
14 WHORTON, JACKIE CRAWFORD, GREG COX, CHERIE SCOTT, and
15 DOES I-X,

03-05: cv-0327-ECR-RAM

16

Defendants.

____________________________________/

17

18

SECOND AMENDED COMPLAINT

(42 USC § 1983)

19

20

Plaintiffs, above-named, by and through their undersigned counsel, ROBERT R.

21 HAGER, ESQ., hereby complain and allege against Defendants, above-named, and each of

22 them, as follows:

23

JURISDICTION

24

1. Jurisdiction of this Court over the claims alleged in this action is found in the

25 provisions of 28 USC §§ 1331, 1343, 1651, 2201 and 2202 and 42 USC §§ 1983 and 1988.

26

VENUE

27

2. Venue lies properly in this Court pursuant to 28 USC § 1391.

28 //

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1

PARTIES

2

3. Plaintiff DONALD YORK EVANS (hereafter EVANS) is a citizen of the United

3 States and a resident of the State of Nevada, and at all times relevant to the claims alleged in this

4 action he has been an attorney duly authorized to practice law in the courts of the United States

5 and Nevada and he has a professional and personal association and friendship with Plaintiff

6 JOHN WITHEROW.

7

4. Plaintiff JOHN WITHEROW (hereinafter WITHEROW) is a citizen of the United

8 States and a prisoner confined by the Nevada Department of Corrections (NDOC) at Lovelock

9 Correctional Center (LCC).

10

5. Defendant LENARD VARE (hereafter VARE) is believed to be a citizen of the

11 United States and a resident of the State of Nevada, and at all times relevant to the claims

12 alleged against him in this action he was acting under color of State law as the NDOC LCC

13 Warden.

14

6. Defendant ROSEMARY SEALS (hereafter SEALS) is believed to be a citizen

15 of the United States and a resident of the State of Nevada, and at all times relevant to the claims

16 alleged against her in this action she was acting under the State law as the NDOC LCC

17 Association Warden of Programs (AWP).

18

7. Defendant KELLY BELANGER (hereafter BELANGER) is believed to be a

19 citizen of the United States and a resident of the State of Nevada, and at all times relevant to the

20 claims alleged against her in this action she was acting under color of State law as the NDOC

21 LCC Law Library Supervisor (LLS).

22

8. Defendant ROBERT LEGRAND (hereinafter LEGRAND) is believed to be a

23 citizen of the United States and a resident of the State of Nevada, and at all times relevant to the

24 claims alleged against him in this action he was acting under color of State law as an NDOC

25 LCC Correctional Caseworker Specialist (CCS) III.

26

9. Defendant CRAIG FARWELL (hereinafter FARWELL) is believed to be a citizen

27 of the United States and a resident of the State of Nevada, and at all times relevant to the

28 //

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1 claims alleged against him in this action he was acting under color of State law as the NDOC

2 LCC Warden.

3

10. Defendant GLEN WHORTON (hereinafter WHORTON) is believed to be a

4 citizen of the United States and a resident of the State of Nevada, and at all times relevant to the

5 claims alleged him in this action he was acting under color of State law as the NDOC Assistant

6 Director of Programs (ADP).

7

11. Defendant JACKIE CRAWFORD (hereinafter CRAWFORD) is believed to be

8 a citizen of the United States and a resident of the State of Nevada, and at all times relevant to

9 the claims alleged against her in this action she was acting under color of State law as the

10 NDOC Director.

11

12. Defendant GREG COX (hereinafter COX) is believed to be a resident of the

12 United States and a resident of the State of Nevada, and at all times relevant to the claims

13 alleged against him in this action he was acting under color of State law as the NDOC Assistant

14 Director of Operations (ADO).

15

13. Defendant CHERIE SCOTT (hereinafter SCOTT) is believed to be a citizen of

16 the United States and a resident of the State of Nevada, and at all times relevant to the claims

17 alleged against her in this action she was acting under color of State law as the NDOC LCC

18 Associate Warden of Operations (AWO).

19

14. Defendants DOES I-X, whose true identities are unknown to Plaintiffs at this

20 time, are believed to be citizens of the United States and residents of the State of Nevada and

21 are believed to be responsible in some manner for the events and occurrences that are the

22 subject of this Second Amended Complaint. Plaintiffs will seek leave to amend this Complaint

23 to insert the true name(s) of these Defendants when the same has been ascertained, with

24 appropriate allegations pertaining to their capacities and conduct while acting under color of

25 State law.

26

15. Defendants, and each of them, are sued in both their official and individual

27 capacities for their conduct while acting under color of State law.

28 //

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1

FACTS

2

16. Plaintiff EVANS is a civil rights activist and attorney and has engaged in various

3 civil rights litigation on behalf of prisoners and other oppressed persons against various

4 government officials for over 18 years, and a practicing member of the Stat Bar of Nevada for

5 over 26 years, since 1979.

6

17. Plaintiff WITHEROW is a layman, self and college trained as a paralegal/law

7 clerk, and is a civil rights activist engaged in various civil rights activities on his own behalf and

8 on behalf of other prisoners and oppressed persons against various government officials for over

9 26 years.

10

18. Plaintiff EVANS met Plaintiff WITHEROW over 21 years ago, he has

11 represented WITHEROW in both criminal and civil matters during the past 21 years, he has

12 utilized thousands of hours of voluntary and free assistance provided by WITHEROW as a

13 paralegal/law clerk, he has retained the services of WITHEROW as a paralegal/law clerk and

14 he intends to utilize the voluntary and free or retained services of WITHEROW as a

15 paralegal/law clerk in the future.

16

19. Plaintiff EVANS has the utmost respect for the skills, abilities and knowledge of

17 Plaintiff WITHEROW in both criminal and civil litigation, and has common interest with

18 WITHEROW in the civil rights of prisoners and other oppressed people, and has considered

19 WITHEROW a friend, colleague and contemporary civil rights activist for a substantial period

20 of time and he is currently engaged with WITHEROW in various relationships, excluding a

21 business relationship relating to the retention for wages or fees of WITHEROW’s services as

22 a paralegal/law clerk.

23

20. Plaintiffs discuss and consult frequently on various civil rights activities of mutual

24 interest, exchange views, ideas and opinions regarding those and other matters and they

25 frequently provide voluntary and free assistance to each other in various matters outside of their

26 business and professional relationship.

27

21. NDOC and Attorney General officials in 1990 became aware of Plaintiffs’

28 relationship in various civil rights litigation and, after Plaintiffs prevailed in various litigation

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1 against prison officials, attempted to prohibit and stop Plaintiff WITHEROW from providing

2 voluntary and free paralegal/law clerk services to Plaintiff EVANS in prisoner litigation, citing

3 administrative regulations prohibiting a prisoner providing legal assistance to another prisoner

4 from charging any fees or accepting any gratuities for providing the assistance.

5

22. Plaintiff reviewed the referenced cited regulations, determined those regulations

6 were not applicable to the conduct in which Plaintiffs were engaged and continued to engage

7 in those activities.

8

23. As a result of the above-described actions of NDOC and Attorney General

9 officials and Plaintiffs discussion of those matters, Plaintiff WITHEROW obtained a business

10 license for a paralegal business, began operating that business from the Ely State Prison and

11 began billing Plaintiff EVANS for the paralegal/law clerk services he had previously provided

12 voluntarily and free of charge.

13

24. NDOC and Attorney General officials, acting jointly, together, in conspiracy,

14 without statutory or regulatory authority to prohibit or stop Plaintiffs from engaging in the

15 above-described civil rights and litigation activities, began a series of retaliatory actions aimed

16 at hindering, impeding, interfering and stopping Plaintiffs from engaging in the above-described

17 civil rights and litigation activities. Those retaliatory actions are partially reflected in

18 Defendants’ Opposition to First Amended Motion for Preliminary Injunction and in Plaintiffs’

19 Reply to Opposition to First Amended Motion for Preliminary Injunction, which are

20 incorporated by reference as though fully set forth herein.

21

25. NDOC and Attorney General officials, in a further act of retaliation specifically

22 directed at Plaintiffs and intended to hinder, impede, interfere and stop Plaintiffs above-

23 described civil rights and litigation activities, in 1997 sought and obtained passage of a statute

24 requiring prisoners to obtain approval from the NDOC to operate a business while confined in

25 prison.

26

26. Plaintiff WITHEROW has not operated his paralegal/law clerk business while

27 confined in prison since the passage of the above-referenced statute.

28 //

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1

27. Plaintiff WITHEROW in 1997, 1998 and again in 1999 requested and was denied

2 NDOC Director approval to operate his paralegal/law clerk business while confined in prison.

3

28. Plaintiff WITHEROW in 2002 resumed providing Plaintiff EVANS with

4 paralegal/law clerk assistance on a voluntary and free of charge basis in various civil rights

5 litigation being pursued by EVANS because of WITHEROW’s interest in the issues involved

6 in those cases.

7

29. Defendant FARWELL in April of 2004, became aware of the fact Plaintiff

8 EVANS had sent money to Plaintiff WITHEROW and FARWELL issued instructions of his

9 subordinate employees to investigate and stop WITHEROW from providing EVANS with any

10 type of assistance in any cases other than WITHEROW’s own personal cases.

11

30. Defendants BELANGER and LEGRAND on May 19, 2004, June 10, 2005 and

12 June 11, 2004, censored and refused to deliver to Plaintiff WITHEROW four pieces of clearly

13 marked legal mail from Plaintiff EVANS containing letters and public record documents based

14 upon their determination that the documents did not pertain to WITHEROW’s cases, the

15 documents pertained to legal cases of other persons and the documents were legal work of

16 another person.

17

31. Defendant BELANGER and LEGRAND were acting upon instructions of

18 Defendant FARWELL in censoring and refusing to deliver to Plaintiff WITHEROW the above-

19 described four pieces of legal mail from Plaintiff EVANS.

20

32. Plaintiff EVANS was not provided by Defendants BELANGER, LEGRAND, or

21 any other NDOC employee, with notice or an opportunity to appeal the decisions of

22 BELANGER and LEGRAND to censor and refuse to deliver to Plaintiff WITHEROW three

23 of the above-referenced pieces of legal mail.

24

33. Plaintiff WITHEROW filed grievances, numbered GR-2004-19-380, GR-2004-

25 19-721, and GR-2004-19-734, pertaining to the above-referenced decisions of Defendants

26 BELANGER and LEGRAND to censor and refuse to deliver Plaintiff EVANS’ legal mail to

27 him and Defendants FARWELL and WHORTON refused to grant him any relief in the

28 grievance process.

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1

34. Plaintiff EVANS, after being advised by Plaintiff WITHEROW of the above-

2 referenced censorship and refusal to deliver his legal mail, attempted to informally resolve those

3 matters with prison officials and Deputy Attorney General (DAG) Daniel Wong; and on June

4 15, 2004, acting upon instructions from Daniel Wong, Defendant BELANGER delivered to

5 WITHEROW all of the above-referenced censored and withheld letters and public record

6 documents sent to him by EVANS as legal mail.

7

35. On November 2, 2004, Plaintiff WITHEROW had a dispute with Defendant

8 BELANGER regarding legal copy work and indicated he would file a grievance to resolve the

9 matter. When WITHEROW left, BELANGER telephoned Defendant SEALS and advised her

10 of WITHEROW’s intent to file a grievance. SEALS immediately retaliated against

11 WITHEROW by revoking his approval to use an LCC Education Department computer for a

12 limited specific purpose.

13

36. Plaintiff WITHEROW on November 2, 2004, requested a meeting with Defendant

14 SEALS to resolve the above-referenced issues and on November 3, 2004, he filed a grievance,

15 numbered GR-2004-19-7821, pertaining to the copy work and retaliation.

16

37. Plaintiff WITHEROW on November 4, 2004, sent a letter to Defendant

17 CRAWFORD pertaining to perceived inappropriate conduct by Defendant BELANGER while

18 working in the LCC Law Library. He receive no response to that letter. He believes that letter

19 was intercepted by Defendants SEALS and/or BELANGER and discussed amongst themselves.

20

38. Defendant SEALS on November 8, 2004, meet with Plaintiff WITHEROW

21 regarding the copy work/retaliation grievance and informally resolved the matter by SEALS

22 granting WITHEROW approval for the requested copy work and reinstating his approval to use

23 the referenced computer for the limited purpose.

24

39. Defendant SEALS, at the conclusion of the above-referenced meeting, acting

25 pursuant to the above-referenced conspiracy and to retaliate against Plaintiff WITHEROW for

26 exercising his constitutional rights and reporting the perceived inappropriate conduct of

27 Defendant BELANGER, informed WITHEROW she was prohibiting him from communicating

28 with Plaintiff EVANS regarding any cases other than his own personal cases.

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1

40. Plaintiff WITHEROW on November 16, 2004, wrote to Defendant CRAWFORD

2 regarding the decision of Defendant SEALS to restrict, prohibit and censor his communications

3 with Plaintiff EVANS regarding civil rights litigation other than his own cases.

4

41. Defendant VARE, after consultation with Defendants SEALS, BELANGER and

5 CRAWFORD and at the direction of Defendant CRAWFORD, wrote Plaintiff WITHEROW

6 a letter advising WITHEROW that he was “denying future correspondence between

7 [WITHEROW] and [Plaintiff] EVANS involving legal work and cases, other than your own

8 personal legal matters”.

9

42. Plaintiff EVANS was not provided by Defendants SEALS, VARE, CRAWFORD,

10 or any other NDOC employee with notice nor due process, or an opportunity to appeal their

11 decisions to restrict, prohibit and censor his legal communications with Plaintiff WITHEROW

12 involving civil rights and cases other than WITHEROW’s own personal legal matters.

13

43. Plaintiff WITHEROW on November 30, 2004, filed a grievance, numbered GR-

14 2004-19-7107, regarding the restraints, prohibitions and censorship of his legal mail

15 communications with Plaintiff EVANS pertaining to civil rights and cases other than his own

16 personal legal matters and Defendants VARE and COX refused to grant him any relief in the

17 grievance process.

18

44. Defendants BELANGER and SEALS, jointly and together in concert, after

19 consultation and discussion, pursuant to Defendants SEALS, VARE and CRAWFORD’s

20 restrictions, prohibitions and censorship imposed on Plaintiff EVANS’ legal communications

21 with Plaintiff WITHEROW regarding civil rights and other legal matters, on February 11, 2005,

22 March 2, 2005, and May 25, 2005, refused to deliver EVANS’ legal mail communications to

23 WITHEROW and required WITHEROW to return the legal mail to EVANS without providing

24 him with an opportunity to review these communications.

25

45. Plaintiff EVANS was not provided by Defendants BELANGER, SEALS, or any

26 other NDOC employee, with notice nor due process, nor an opportunity to appeal the decisions

27 of BELANGER and SEALS to censor and refuse to deliver to Plaintiff WITHEROW the above-

28 referenced three pieces of legal mail.

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1

46. Plaintiff WITHEROW filed grievances, numbered GR-2005-19-1844 and GR-

2 2005-19-5440, pertaining to the above-referenced decisions of Defendant BELANGER and

3 SEALS to censor and refuse to deliver Plaintiff EVANS’ legal mail to him. Defendants VARE

4 and COX refused to grant him any relief in the grievance process.

5

47. Plaintiff WITHEROW on June 7, 2005, wrote to Defendant CRAWFORD

6 requesting permission/approval to operate his paralegal/law clerk business while confined by

7 the NDOC. His renewed request was made and based upon the fact that other prisoners

8 similarly situated are/have been granted permission/approval to operate and engage in business

9 activities while confined by the NDOC.

10

48. Defendant VARE, acting upon instructions from Defendant CRAWFORD,

11 without a hearing or a full and fair opportunity to be heard and without regulations governing

12 and controlling the business operation application and approval process, and without any due

13 process on June 22, 2005, wrote Plaintiff WITHEROW a letter in which he advised

14 WITHEROW of his decision denying the request for permission/approval to operate a business

15 while confined by the NDOC and indicating that WITHEROW’s request would not be approved

16 during his incarceration, the denial decision would not be reversed and any further

17 correspondence regarding the subject would not be considered.

18

49. Plaintiff WITHEROW on June 25, 2005, filed a grievance, numbered GR-2005-

19 19-6627, pertaining to the above-referenced decision of Defendants VARE and CRAWFORD

20 to deny him permission/approval to operate his paralegal/law clerk business and Defendants

21 SCOTT and COX refused to grant him any relief in the grievance process.

22

50. Plaintiff WITHEROW on December 12, 2005, and December 30, 2005, sent

23 money to the Clerks of the Nevada Supreme Court and the U.S. District Court to purchase

24 public record documents of interest to him in his civil rights and litigation activities.

25

51. Defendants BELANGER and LEGRAND on January 13, 2006, and January 19,

26 2006, censored and refused to deliver to Plaintiff WITHEROW privileged correspondence sent

27 to him by, respectively, the Clerk of the U.S. District Court and the Clerk of the Nevada

28 //

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1 Supreme Court contained public record documents filed in cases in those courts which he had

2 purchased for reference in his civil rights and litigation activities.

3

52. NDOC regulations do not prohibit Plaintiff WITHEROW from obtaining or

4 possessing public record documents filed in courts and other person similar situated to

5 WITHEROW are permitted to receive and possess public record documents via privileged

6 correspondence or to obtain such documents through the LCC law library.

7

53. Plaintiff WITHEROW filed grievances, pertaining to the above-referenced

8 decisions of Defendants BELANGER and to censor and refuse to deliver to him the public

9 record documents belonging to him and sent to him by the Court Clerks via privileged

10 correspondence. Plaintiff WITHEROW anticipates receiving any relief in the grievance

11 process.

12

54. Defendants, and each of them, acted arbitrarily and capriciously, without

13 regulatory authority, and in violation of NDOC regulations, in the above-described adverse

14 actions directed towards Plaintiffs, without legitimate or reasonable penalogical purpose or goal.

15

55. Defendants, and each of them, engaged in the above-described adverse actions

16 towards Plaintiffs to retaliate and punish Plaintiffs for engaging in constitutionally protected

17 civil rights and litigation activities directed against prison officials, which caused Plaintiffs

18 harm by chilling their exercise of their constitutional rights and hindering and impeding their

19 engagement in constitutionally protected activities.

20

56. Defendants, and each of them, acted together and jointly in concert, pursuant to

21 a conspiracy, in their above-described adverse actions against Plaintiffs, to hinder, impede and

22 attempt to stop Plaintiffs from engaging in constitutionally protected civil rights and litigation

23 activities directed towards remedying the unconstitutional conduct of prison and other

24 government officials in the State of Nevada.

25

57. Defendants, and each of them, acted intentionally, or recklessly, with deliberate

26 indifference, or disregard for, Plaintiffs’ constitutional rights in their above-described conduct

27 in a manner not tailored to advance legitimate or reasonable penalogical purposes or goals.

28 //

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1

FIRST CAUSE OF ACTION

2

Declaratory Relief

3

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

4 of this Complaint as though fully set forth here.

5

58. Plaintiffs request declaratory relief pursuant to Fed.R.Civ.P. Rule 57 and 28 USC

6 § 2201 determining that:

7

A. Plaintiffs have/had clearly established rights at all times relevant to the

8 claims alleged in this action to:

9

(1) Due process and equal protection of law under the Fourteenth

10 Amendment of the U.S. Constitution;

11

(2) Freedom of speech, freedom of association and to petition the

12 government for redress of grievances under the First Amendment to the U.S. Constitution of

13 each of those rights are/were protected by the Due Process Clause of the Fourteenth

14 Amendment to the U.S. Constitution.

15

(3) Be free from unreasonable searches and seizures under the Fourth

16 Amendment to the U.S. Constitution and that right is/was protected by the Due Process Clause

17 of the Fourteenth Amendment to the U.S. Constitution; and

18

(4) Confidential attorney/client communications under common law and

19 statutes and that right is/was protected by the Due Process Clause of the Fourteenth Amendment

20 to the U.S. Constitution.

21

(5) To review and obtain copies of public records under the common

22 law and statutes and that right is/was protected by the Due Process and Equal Protection Clauses

23 of the Fourteenth Amendment to the U.S. Constitution.

24

B. Plaintiff WITHEROW has/had a clearly established right to acquire and

25 possess property under the common law and Nevada Constitution and that right is/was protected

26 by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S.

27 Constitution at all times relevant to the claims alleged in this action;

28 //

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1

C. Plaintiffs’ First Amendment rights permit Plaintiffs to communicate

2 privately with each other regarding any civil rights or litigation matter, and any other matters

3 that may be of mutual interest to them and to exchange their views, opinions and comments

4 regarding those matters;

5

D. Plaintiffs’ right to confidential attorney/client communication permit

6 Plaintiffs to communicate privately and in confidence with each other regarding any legal matter

7 Plaintiff WITHEROW is, or may be considering, pursuing with the assistance of Plaintiff

8 EVANS and to exchange their views, opinions and ideas pertaining to any and all issues which

9 are, or may be, involved in those legal matters regardless of whether those issues are ever

10 actually pursued in litigation.

11

E. Plaintiff EVANS determines the information or documents that may

12 contain information relevant to any issues involved in any of Plaintiff WITHEROW’s litigation

13 activities and EVANS may send any such relevant information or documents to WITHEROW

14 through the mail as confidential attorney/client “legal mail”;

15

F. Any document filed in the record of any court in the United States of

16 America in a criminal or civil case that is not subjected to a protective or sealing order is a

17 public record;

18

G. Plaintiff WITHEROW may possess copies of public records he purchased

19 for his use in his civil rights and litigation activities;

20

H. Plaintiff EVANS may send via legal mail to Plaintiff WITHEROW any

21 public record document containing any information pertaining to any issue which may be of

22 interest to WITHEROW in any legal matter WITHEROW is, or may be considering, pursuing;

23

I. Plaintiff EVANS is not required to redact from any public record document

24 he sends to Plaintiff WITHEROW via legal mail the names of the parties reflected in those

25 documents.

26

J. Defendants may not read or censor any portion of Plaintiffs confidential

27 attorney/client communications without first obtaining a judicially authorized search warrant;

28 //

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1

K. Defendants may open the envelopes containing Plaintiff EVANS’

2 confidential attorney/client legal mail to Plaintiff WITHEROW only in the presence of

3 WITHEROW and may only inspect the envelope and its contents for contraband items;

4

L. Defendants’ inspection of the contents of Plaintiffs’ legal mail does not

5 permit Defendants to read any of the words contained within any of the documents contained

6 within the legal mail envelopes.

7

M. Plaintiff WITHEROW is not operating a “business” or conducting a

8 “business activity” when he voluntarily and without charge provides Plaintiff EVANS with his

9 views, opinions, comments, or ideas, expressed in any written format WITHEROW chooses,

10 pertaining to any civil rights, legal matter, or litigation activity in which EVANS may be

11 engaged in pursuing;

12

N. Defendants may not deny Plaintiff WITHEROW permission/approval to

13 operate a business while confined by the NDOC without a regulation governing and controlling

14 the application process, establishing procedures to be followed, criteria to be considered in

15 determining whether to grant or deny the application; and without adequate and sufficient due

16 process procedural protections, including, but not limited to, a hearing before an impartial

17 director designee or panel, a full and fair opportunity to be heard on all matters relevant to the

18 application and a reasonably supported by a preponderance of the evidence for any denial of the

19 application;

20

O. Defendants violated rights secured to Plaintiffs by common law statutes

21 and the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in violation of 42

22 USC § 1983, by:

23

(1) Censoring and refusing to deliver Plaintiff EVANS’ legal mail

24 communications to Plaintiff WITHEROW containing letters and other public record documents;

25

(2) Imposing arbitrary and capricious restrictions and prohibitions on

26 Plaintiffs’ legal mail communications;

27

(3) Retaliating against Plaintiffs for engaging in constitutionally

28 protected activities; and

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1

(4) Conspiring to violate Plaintiffs’ constitutional rights by hindering,

2 impeding and attempting to stop Plaintiffs’ civil rights and litigation activities;

3

P. Defendants violated rights secured to Plaintiff EVANS by the common law

4 and First, Fourth and Fourteenth Amendments of the U.S. Constitution, in violation of 42 USC

5 § 1983, by failing to provide EVANS with notice and an opportunity to appeal the decisions to

6 censor and refuse to deliver his attorney/client legal mail to Plaintiff WITHEROW and

7 imposing restrictions and prohibitions of EVANS’ attorney/client legal mail communications

8 with WITHEROW; and

9

Q. Defendants violated rights secured to Plaintiff WITHEROW by the

10 common law and the Fourteenth Amendment to the U.S. Constitution, in violation of 42 USC

11 § 1983, when Defendants arbitrarily and capriciously, without regulatory authority, denied

12 WITHEROW’s application to operate his paralegal/law clerk business while confined by the

13 NDOC without a hearing on the application or a reason for the denial, without a legitimate or

14 reasonable penalogical purpose or goal and when other prisoners similarly situated to

15 WITHEROW are permitted/approved to conduct business activities while confined by the

16 NDOC.

17

R. Defendants violated rights secured to Plaintiff WITHEROW by the First

18 and Fourteenth Amendments of the U.S. Constitution, in violation of 42 USC § 1983, when

19 Defendants arbitrarily and capriciously, without regulatory authority, censored and refused to

20 deliver to him public record documents belonging to him without a legitimate penalogical

21 purpose or goal and when other prisoners similarly situated to WITHEROW are permitted to

22 obtain similar public record documents via privileged correspondence.

23

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

24

SECOND CAUSE OF ACTION

25

Injunctive Relief

26

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

27 of this Complaint as though fully set forth here.

28 //

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1

59. Plaintiffs request preliminary and permanent injunctive relief pursuant to

2 Fed.R.Civ.P. Rule 65 and 28 USC § 1651 enjoining and prohibiting Defendants, and each of

3 them or their agents or employees from engaging in the following:

4

(a) Imposing restrictions or prohibitions of Plaintiffs’ communications to or

5 from each other on any civil rights or other legal matter Plaintiffs may decide to express their

6 views, opinions, comments, or ideas thereon to each other;

7

(b) Refusing to deliver within 24 hours of receipt by the NDOC Plaintiff

8 EVANS’ legal mail communications sent to Plaintiff WITHEROW on any civil rights or other

9 legal matter EVANS may deem of interest to WITHEROW or upon which EVANS desires the

10 views, ideas, opinions, or comments of WITHEROW thereon;

11

(c) Reading any portion of Plaintiff EVANS’ confidential attorney/client legal

12 mail communications to Plaintiff WITHEROW regarding any legal matter he may be pursuing,

13 or considering pursuing, on behalf of WITHEROW or any other person; and

14

(d) Denying Plaintiff WITHEROW permission/approval to operate his

15 paralegal/law clerk business, or any other business activity, without providing WITHEROW

16 with a hearing and adequate and sufficient due process procedural protections in the application

17 process.

18

(e) Refusing to deliver to Plaintiff WITHEROW public record documents

19 purchased or otherwise sent to him via privileged correspondence for his use in any civil rights

20 or other legal activity he may be pursing.

21

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

22

THIRD CAUSE OF ACTION

23

Violation of Constitutional Rights

24

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

25 of this Complaint as though fully set forth here.

26

60. Plaintiffs were denied their rights to confidential attorney/client communications,

27 to freedom of speech, to freedom of association, to petition the government for redress of

28 grievances to be free from unreasonable searches and seizures, and to due process of law, as

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1 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

2 violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND, FARWELL and

3 WHORTON, acting jointly and together in concert, on May 19, 2004, and thereafter, refused

4 to deliver Plaintiff EVANS’ legal privileged correspondence to Plaintiff WITHEROW

5 pertaining to a civil rights case of mutual interest to them in their litigation activities.

6

61. Defendants BELANGER, LEGRAND, FARWELL and WHORTON knew, or

7 should have known, that their above-described conduct denied and deprived Plaintiffs of their

8 above-described rights in violation of 42 USC § 1983.

9

62. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

10 proximate result of the above-described conduct of Defendants BELANGER, LEGRAND,

11 FARWELL and WHORTON as will more fully appear at trial.

12

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

13

FOURTH CAUSE OF ACTION

14

Violation Of Constitutional Rights

15

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

16 of this Complaint as though fully set forth here.

17

63. Plaintiffs were denied their rights to confidential attorney/client communications,

18 to freedom of speech, to freedom of association, to petition the government for redress of

19 grievances to be free from unreasonable searches and seizures, and to due process of law, as

20 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

21 violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND, FARWELL and

22 WHORTON, acting jointly and together in concert, on June 10, 2004, and thereafter, refused

23 to deliver Plaintiff EVANS’ legal privileged correspondence to Plaintiff WITHEROW

24 pertaining to a civil rights case of mutual interest to them in their litigation activities.

25

64. Defendants BELANGER, LEGRAND, FARWELL and WHORTON knew, or

26 should have known, that their above-described conduct denied and deprived Plaintiffs of their

27 above-described rights in violation of 42 USC § 1983.

28 //

-16-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 17 of 31

1

65. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

2 proximate result of the above-described conduct of Defendants BELANGER, LEGRAND,

3 FARWELL and WHORTON as will more fully appear at trial.

4

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

5

FIFTH CAUSE OF ACTION

6

Violation Of Constitutional Rights

7

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

8 of this Complaint as though fully set forth here.

9

66. Plaintiffs were denied their rights to confidential attorney/client communications,

10 to freedom of speech, to freedom of association, to petition the government for redress of

11 grievances to be free from unreasonable searches and seizures, and to due process of law, as

12 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

13 violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND, FARWELL and

14 WHORTON, acting jointly and together in concert, on June 10, 2004, and thereafter, refused

15 to deliver Plaintiff EVANS’ legal privileged correspondence to Plaintiff WITHEROW

16 pertaining to a civil rights case of mutual interest to them in their litigation activities.

17

67. Defendants BELANGER, LEGRAND, FARWELL and WHORTON knew, or

18 should have known, that their above-described conduct denied and deprived Plaintiffs of their

19 above-described rights in violation of 42 USC § 1983.

20

68. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

21 proximate result of the above-described conduct of Defendants BELANGER, LEGRAND,

22 FARWELL and WHORTON as will more fully appear at trial.

23

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

24

SIXTH CAUSE OF ACTION

25

Violation Of Constitutional Rights

26

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

27 of this Complaint as though fully set forth here.

28 //

-17-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 18 of 31

1

69. Plaintiffs were denied their rights to confidential attorney/client communications,

2 to freedom of speech, to freedom of association, to petition the government for redress of

3 grievances to be free from unreasonable searches and seizures, and to due process of law, as

4 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

5 violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND, FARWELL and

6 WHORTON, acting jointly and together in concert, on June 11, 2004, and thereafter, refused

7 to deliver Plaintiff EVANS’ legal privileged correspondence to Plaintiff WITHEROW

8 pertaining to a civil rights case of mutual interest to them in their litigation activities.

9

70. Defendants BELANGER, LEGRAND, FARWELL and WHORTON knew, or

10 should have known, that their above-described conduct denied and deprived Plaintiffs of their

11 above-described rights in violation of 42 USC § 1983.

12

71. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

13 proximate result of the above-described conduct of Defendants BELANGER, LEGRAND,

14 FARWELL and WHORTON as will more fully appear at trial.

15

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

16

SEVENTH CAUSE OF ACTION

17

Violation Of Constitutional Rights

18

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

19 of this Complaint as though fully set forth here.

20

72. Plaintiff EVANS was denied his rights to confidential attorney/client

21 communications, to freedom of speech, to freedom of association, to petition the government

22 for redress of grievances, to be free from unreasonable searches and seizures, and to due process

23 of law, as guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution,

24 in violation of 42 USC § 1983, when Defendants BELANGER and LEGRAND, acting jointly

25 and together, in concert, failed to provide him with notice and an opportunity to appeal their

26 June 10, 2004, and June 11, 2004, decisions to refuse to deliver his privileged correspondence

27 to Plaintiff WITHEROW pertaining to a civil rights case of mutual interest to them in their

28 litigation activities.

-18-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 19 of 31

1

73. Defendants BELANGER and LEGRAND knew, or should have known, that their

2 above-described conduct denied and deprived Plaintiff EVANS of the above-described rights

3 in violation of 42 USC § 1983.

4

74. Plaintiff EVANS suffered, and continues to suffer, injuries and damages as a

5 direct or proximate result of the above-described conduct of these Defendants as will more fully

6 appear at trial.

7

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

8

EIGHTH CAUSE OF ACTION

9

Violation Of Constitutional Rights

10

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

11 of this Complaint as though fully set forth here.

12

75. Plaintiffs were denied their rights to confidential attorney/client communications,

13 to freedom of speech, to freedom of association, to petition the government for redress of

14 grievances to be free from unreasonable searches and seizures and to due process of law, as

15 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

16 violation of 42 USC § 1983, when Defendants SEALS, VARE, CRAWFORD and COX on

17 November 8, 2004, and thereafter, acting jointly and together in concert, imposed restrictions

18 and prohibitions on Plaintiffs’ legal mail communications regarding civil rights and other legal

19 matters other than WITHEROW’s own personal legal cases.

20

76. Defendants SEALS, VARE, CRAWFORD and COX knew, or should have

21 known, that their above-described conduct denied and deprived Plaintiffs of their above-

22 described rights in violation of 42 USC § 1983.

23

77. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

24 proximate result of the above-described conduct of Defendant SEALS, LEGRAND,

25 CRAWFORD and COX as will more fully appear at trial.

26

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

27 //

28 //

-19-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 20 of 31

1

NINTH CAUSE OF ACTION

2

Violation Of Constitutional Rights

3

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

4 of this Complaint as though fully set forth here.

5

78. Plaintiff EVANS was denied his rights to confidential attorney/client

6 communications, to freedom of speech, to freedom of association, to petition the government

7 for redress of grievances to be free from unreasonable searches and seizures and to due process

8 of law, as guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution,

9 when Defendants SEALS, VARE, CRAWFORD and COX on November 8, 2004, and

10 thereafter, acting jointly and together in concert, imposed restrictions and prohibitions of

11 Plaintiff EVANS’ legal mail communications to Plaintiff WITHEROW regarding civil rights

12 and other legal matters other than WITHEROW’s own personal case without providing EVANS

13 with notice, a hearing and an opportunity to appeal the restrictions and prohibition decisions.

14

79. Defendants SEALS, VARE, CRAWFORD and COX knew, or should have

15 known, that their above-described conduct denied and deprived Plaintiff EVANS of his above-

16 described rights in violation of 42 USC § 1983. \

17

80. Plaintiff EVANS suffered, and continues to suffer, injuries and damages as a

18 direct or proximate result of the above-described conduct of Defendants SEALS, VARE,

19 CRAWFORD and COX as will more fully appear at trial.

20

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

21

TENTH CAUSE OF ACTION

22

Violation Of Constitutional Rights - Retaliation

23

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

24 of this Complaint as though fully set forth here.

25

81. Plaintiff WITHEROW was denied his rights to confidential attorney/client

26 communications, to freedom of speech, to freedom of association, to petition the government

27 for redress of grievances to be free from unreasonable searches and seizures and to due process

28 of law, as guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution,

-20-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 21 of 31

1 when Defendant SEALS imposed restrictions and prohibitions on his communications with

2 Plaintiff EVANS regarding civil rights and legal matters other than his own personal cases to

3 retaliate against and punish him for engaging in the constitutionally protected activity of filing

4 a grievance over copy work and retaliation and for writing a letter to Director CRAWFORD

5 regarding perceived inappropriate conduct of Defendant BELANGER.

6

82. Defendant SEALS knew, or should have known, that her above-described conduct

7 denied and deprived Plaintiff WITHEROW of his above-described rights in violation of 42 USC

8 § 1983.

9

83. Plaintiff WITHEROW suffered, and continues to suffer, injuries and damages as

10 a direct or proximate result of the above-described conduct of Defendant SEALS as will more

11 fully appear at trial.

12

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

13

ELEVENTH CAUSE OF ACTION

14

Violation Of Constitutional Rights - Retaliation

15

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

16 of this Complaint as though fully set forth here.

17

84. Plaintiffs were denied their rights to confidential attorney/client communications,

18 to freedom of speech, to freedom of association, to petition the government for redress of

19 grievances to be free from unreasonable searches and seizures and to due process of law, as

20 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, when

21 Defendants SEALS, VARE, CRAWFORD and COX, acting jointly and together in concert,

22 imposed restrictions and prohibitions on Plaintiffs’ legal mail communications regarding civil

23 rights and other legal matters other than WITHEROW’s own personal cases to retaliate against

24 and punish Plaintiffs for engaging in constitutionally protected activity in pursuing litigation

25 against prison officials.

26

85. Defendants SEALS, VARE, CRAWFORD and COX knew, or should have

27 known, that their above-described conduct denied and deprived Plaintiffs of their above-

28 described constitutional rights in violation of 42 USC § 1983.

-21-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 22 of 31

1

86. Plaintiffs suffered, and continued to suffer, injuries and damages as a direct or

2 proximate result of the above-described conduct of Defendant SEALS, VARE, CRAWFORD

3 and COX as will more fully appear at trial.

4

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

5

TWELFTH CAUSE OF ACTION

6

Violation Of Constitutional Rights

7

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

8 of this Complaint as though fully set forth here.

9

87. Plaintiffs were denied their rights to confidential attorney/client communications,

10 to freedom of speech, to freedom of association, to petition the government for redress of

11 grievances to be free from unreasonable searches and seizures and to due process of law, as

12 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

13 violation of 42 USC § 1983, when Defendants SEALS, VARE, CRAWFORD and COX, acting

14 jointly and together in concert, on February 11, 2005, and therefore, refused to deliver Plaintiff

15 EVANS’ legal mail communication to Plaintiff WITHEROW containing public record

16 information pertaining to a civil rights case other than WITHEROW’s own personal cases.

17

88. Defendants BELANGER, SEALS, VARE, CRAWFORD and COX knew, or

18 should have known, that their above-described conduct denied and deprived Plaintiffs of the

19 above-described rights in violation of 42 USC § 1983.

20

89. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

21 proximate result of the above-described conduct of Defendants BELANGER, SEALS, VARE,

22 CRAWFORD and COX as will more fully appear at trial.

23

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

24

THIRTEENTH CAUSE OF ACTION

25

Violation Of Constitutional Rights

26

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

27 of this Complaint as though fully set forth here.

28 //

-22-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 23 of 31

1

90. Plaintiffs were denied their rights to confidential attorney/client communications,

2 to freedom of speech, to freedom of association, to petition the government for redress of

3 grievances to be free from unreasonable searches and seizures and to due process of law, as

4 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

5 violation of 42 USC § 1983, when Defendants SEALS, VARE, CRAWFORD and COX, acting

6 jointly and together in concert, on March 2, 2005, and therefore, refused to deliver Plaintiff

7 EVANS’ legal mail communication to Plaintiff WITHEROW containing public record

8 information pertaining to a civil rights case other than WITHEROW’s own personal cases.

9

91. Defendants BELANGER, SEALS, VARE, CRAWFORD and COX knew, or

10 should have known, that their above-described conduct denied and deprived Plaintiffs of the

11 above-described rights in violation of 42 USC § 1983.

12

92. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

13 proximate result of the above-described conduct of Defendants BELANGER, SEALS, VARE,

14 CRAWFORD and COX as will more fully appear at trial.

15

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

16

FOURTEENTH CAUSE OF ACTION

17

Violation Of Constitutional Rights

18

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

19 of this Complaint as though fully set forth here.

20

93. Plaintiffs were denied their rights to confidential attorney/client communications,

21 to freedom of speech, to freedom of association, to petition the government for redress of

22 grievances to be free from unreasonable searches and seizures and to due process of law, as

23 guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution, in

24 violation of 42 USC § 1983, when Defendants SEALS, VARE, CRAWFORD and COX, acting

25 jointly and together in concert, on May 25, 2005, and therefore, refused to deliver Plaintiff

26 EVANS’ legal mail communication to Plaintiff WITHEROW containing public record

27 information pertaining to a civil rights case other than WITHEROW’s own personal cases.

28 //

-23-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 24 of 31

1

94. Defendants BELANGER, SEALS, VARE, CRAWFORD and COX knew, or

2 should have known, that their above-described conduct denied and deprived Plaintiffs of the

3 above-described rights in violation of 42 USC § 1983.

4

95. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

5 proximate result of the above-described conduct of Defendants BELANGER, SEALS, VARE,

6 CRAWFORD and COX as will more fully appear at trial.

7

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

8

FIFTEENTH CAUSE OF ACTION

9

Violation Of Constitutional Rights

10

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

11 of this Complaint as though fully set forth here.

12

96. Plaintiff EVANS was denied his rights to confidential attorney/client

13 communications, to freedom of speech, to freedom of association, to petition the government

14 for redress of grievances, to be free from unreasonable searches and seizures, and to due process

15 of law, as guaranteed by the First, Fourth and Fourteenth Amendments to the U.S. Constitution,

16 in violation of 42 USC § 1983, when Defendants BELANGER and LEGRAND, acting jointly

17 and together, in concert, failed to provide him with notice and an opportunity to appeal their

18 February 11, 2005, and March 2, 2005, decisions to refuse to deliver his privileged

19 correspondence to Plaintiff WITHEROW pertaining to a civil rights case of mutual interest to

20 them in their litigation activities.

21

97. Defendants BELANGER and LEGRAND knew, or should have known, that their

22 above-described conduct denied and deprived Plaintiff EVANS of the above-described rights

23 in violation of 42 USC § 1983.

24

98. Plaintiff EVANS suffered, and continues to suffer, injuries and damages as a

25 direct or proximate result of the above-described conduct of these Defendants as will more fully

26 appear at trial.

27

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

28 //

-24-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 25 of 31

1

SIXTEENTH CAUSE OF ACTION

2

Violation Of Constitutional Rights

3

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

4 of this Complaint as though fully set forth here.

5

99. Plaintiff WITHEROW was denied his rights to acquire and possess property and

6 to due process of law, as guaranteed by the Fourteenth Amendment to the U.S. Constitution, in

7 violation of 42 USC § 1983, when Defendants VARE, CRAWFORD, SCOTT and COX, acting

8 jointly and together in concert, denied WITHEROW permission/approval to operate a

9 paralegal/law clerk business while confined by the NDOC without a hearing or a full and fair

10 opportunity to be heard and without a legitimate penalogical purpose or goal.

11

100. Defendants VARE, CRAWFORD, SCOTT and COX knew, or should have

12 known, that their above-described conduct denied and deprived Plaintiff WITHEROW of his

13 above-described rights in violation of 42 USC § 1983.

14

101. Plaintiff WITHEROW suffered, and continues to suffer, injuries and damages as

15 a direct or proximate result of the above-described conduct of Defendants VARE,

16 CRAWFORD, SCOTT and COX as will more fully appear at trial.

17

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

18

SEVENTEENTH CAUSE OF ACTION

19

Violation Of Constitutional Rights

20

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

21 of this Complaint as though fully set forth here.

22

102. Plaintiff WITHEROW was denied his rights to acquire and possess property, to

23 due process of law and to equal protection of law, as guaranteed by the Fourteenth Amendment

24 to the U.S. Constitution, in violation of 42 USC § 1983, when Defendant VARE, CRAWFORD,

25 SCOTT and COX, acting jointly and together in concert, denied WITHEROW

26 permission/approval to operate a paralegal/law clerk business while confined by the NDOC

27 when other prisoners similar situated to WITHEROW are/have been granted

28 permission/approval to operate or engage in business activities while confined by the NDOC.

-25-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 26 of 31

1

103. Defendants VARE, CRAWFORD, SCOTT and COX knew, or should have

2 known, that their above-described conduct denied and deprived Plaintiff WITHEROW of the

3 above-described rights in violation of 42 USC § 1983.

4

104. Plaintiff WITHEROW suffered, and continues to suffer, injuries and damages as

5 a direct or proximate result of the above-described conduct of Defendants VARE,

6 CRAWFORD, SCOTT and COX as will more fully appear at trial.

7

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

8

EIGHTH CAUSE OF ACTION

9

Conspiracy to Violate Constitutional Rights

10

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

11 of this Complaint as though fully set forth here.

12

105. Plaintiff WITHEROW was denied his rights to copies of public records, to

13 freedom of speech, to petition the government for redress of grievances, to due process of law

14 and to equal protection of law, as guaranteed by the First and Fourteenth Amendments to the

15 U.S. Constitution, in violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND,

16 and other unknown actors, acting jointly and together in concert, on January 13, 2006, censored

17 and refused to deliver U.S. District Court Clerk’s privileged correspondence to WITHEROW

18 containing a public record document purchased by WITHEROW for his use in his civil rights

19 and litigation activities when persons similarly situated are permitted to receive such

20 documents.

21

106. Defendants BELANGER, LEGRAND, and other unknown actors, knew, or

22 should have known, that their above-described conduct denied and deprived Plaintiff

23 WITHEROW of his above-described rights in violation of 42 USC § 1983.

24

107. Plaintiff WITHEROW suffered, and continues to suffer, injuries and damages as

25 a direct or proximate result of the above-described conduct of Defendant BELANGER,

26 LEGRAND, and others as will more fully appear at trial.

27

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

28 //

-26-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 27 of 31

1

NINETEENTH CAUSE OF ACTION

2

Conspiracy to Violate Constitutional Rights

3

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

4 of this Complaint as though fully set forth here.

5

108. Plaintiff WITHEROW was denied his rights to copies of public records, to

6 freedom of speech, to petition the government for redress of grievances, to due process of law

7 and to equal protection of law, as guaranteed by the First and Fourteenth Amendments to the

8 U.S. Constitution, in violation of 42 USC § 1983, when Defendants BELANGER, LEGRAND,

9 and other unknown actors, acting jointly and together in concert, on January 19, 2006, censored

10 and refused to deliver Nevada Supreme Court Clerk’s privileged correspondence to

11 WITHEROW containing a public record document purchased by WITHEROW for his use in

12 his civil rights and litigation activities when persons similarly situated are permitted to receive

13 such documents.

14

109. Defendants BELANGER, LEGRAND, and other unknown actors, knew, or

15 should have known, that their above-described conduct denied and deprived Plaintiff

16 WITHEROW of his above-described rights in violation of 42 USC § 1983.

17

110. Plaintiff WITHEROW suffered, and continues to suffer, injuries and damages as

18 a direct or proximate result of the above-described conduct of Defendant BELANGER,

19 LEGRAND, and others as will more fully appear at trial.

20

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

21

TWENTIETH CAUSE OF ACTION

22

Conspiracy to Violate Constitutional Rights

23

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

24 of this Complaint as though fully set forth here.

25

111. Plaintiffs were denied their rights to confidential attorney/client communications,

26 to freedom of speech, to freedom of associations, to petition the government for redress of

27 grievances to be free from unreasonable searches and seizures and to due process of law and

28 Plaintiff WITHEROW was denied his rights to acquire and possess property, copies of public

-27-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 28 of 31

1 record documents and to equal protections of law, all of which are guaranteed by the First,

2 Fourth and Fourteenth Amendments to the U.S. Constitution, in violation of 42 USC § 1983,

3 when Defendants VARE, SEALS, BELANGER, LEGRAND, FARWELL, WHORTON,

4 CRAWFORD, COX, SCOTT and DOES 1-X, acting jointly and together in concert, conspired

5 to deny and deprive Plaintiffs of their constitutional rights in a concerted effort to hinder,

6 impede and stop Plaintiffs from engaging in civil rights and other litigation activities directed

7 towards NDOC employees.

8

112. Defendants, and each of them, knew, or should have known, that their above-

9 described conduct denied and deprived Plaintiffs of their above-described rights in violation of

10 42 USC § 1983.

11

113. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct and

12 proximate result of the above-described conduct of Defendants, and each of them, as will more

13 fully appear at trial.

14

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

15

PUNITIVE DAMAGES

16

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

17 of this Complaint as though fully set forth here.

18

114. Plaintiffs allege that Defendants, and each of them, acted with deliberate

19 indifference to Plaintiffs’ clearly established constitutional rights, violating those rights and

20 causing them to suffer injuries and damages, and therefore, punitive damages should be

21 awarded to punish Defendants for their misconduct and to deter similar misconduct in the

22 future, with the amount of punitive damages to be determined by the trier of fact at trial.

23

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

24

JURY TRIAL DEMANDED

25

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

26 of this Complaint as though fully set forth here.

27

115. Plaintiffs demand a trial by jury on all of the facts which may be submitted to a

28 jury for determination in this action.

-28-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 29 of 31

1

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

2

PREVIOUS LAWSUITS AND ADMINISTRATIVE REMEDIES

3

Plaintiffs incorporate by reference all allegations contained in each numbered paragraph

4 of this Complaint as though fully set forth here.

5

116. Plaintiffs have not filed any previous lawsuits pertaining to the claims alleged in

6 this action.

7

117. Plaintiff EVANS has no administrative remedy available to him to resolve the

8 claims alleged in this action with the NDOC and therefore has no other adequate remedy at law

9 other than the relief requested herein.

10

118. Plaintiff WITHEROW has exhausted his administrative remedies with the NDOC

11 regarding the claims alleged herein through grievance numbers GR-2004-19-380, GR-2004-19-

12 721, GR2004-19-734, GR-2004-19-7107, GR-2005-19-1844, GR -2005-19-5440 and GR-2005-

13 19-6627.

14

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

15

PRAYER FOR RELIEF

16

WHEREFORE, Plaintiffs pray for the following relief:

17

1. For the declaratory relief requested herein above;

18

2. For the injunctive relief requested herein above;

19

3. For nominal, compensatory and punitive damages for each of the Defendants

20 herein in an amount to be determined by the trier of fact;

21

4. For a trial by jury on all issues so triable;

22

5. For costs and attorney fees incurred by Plaintiffs in pursuit of the claims alleged

23 in this action to be paid by Defendants herein;

24

6. For leave to amend this Complaint should the same become necessary; and

25 //

26 //

27 //

28 //

-29-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 30 of 31

1

7. For any other or further relief deemed just and proper in the interests of fairness

2 and justice.

3

DATED: This _____ day of February, 2006.

4

5

_____________________________________________

Robert R. Hager, Esq. #1482

6

HAGER & HEARNE

910 East Parr Blvd., Suite 8

7

Reno, NV 89512

Telephone: #775/329.5800

8

Facsimile: #775/329.5819

Attorney For Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-30-

Case 3:05-cv-00327-ECR-RAM Document 71-2 Filed 03/22/2006 Page 31 of 31

1

CERTIFICATE OF SERVICE

2

I certify that I am an employee of HAGER & HEARNE., and that on this date I

3 _______ deposited for mailing, via U.S. mail

4 ______ caused to be delivered, via Reno-Carson Messenger Service

5 _______ delivered via facsimile machine

6 _______ personally delivered

7 a true and correct copy of the foregoing document, addressed to:

8 Kelly S. Werth, Esq. Deputy Attorney General
9 100 North Carson Street Carson City, NV 89701-4717
10

11

DATED this ______, day of _______________, 2006.

12

13 _________________________________
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

-31-

 
 C\aI se 3:05-cv-00327-ECR-RAM Document 137 Filed 12/29/2006 Page 1 of 3
( I ,_ '. {j,

2

3

- 9 'i' l' ~,

4

5

6

7

8

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

9

RENO, NEVADA

10 DONALD YORK EVANS and
II JOHN WITHEROltl,

3:05-CV-0327-ECR (RAM)

12 13 vs.

PlaintiffS,

ORDER

14 LENARD VARE, ROSEMARY SEALS, KELLY BALENGER, and DOES l-X,
15 Defendants.
16

17

18

19

Second Amended Preliminary Injunction

20

Based on the Ninth Circuit's Memorandum Dispcsition affirming

21 our prior injunction in part, and reversing it in part, the amended

22 preliminary injunction (# 118) issued in this case against

23 Defendants Lenard Yare, Rosemary Seals, and Kelly Balenger, and in

24 favor of Plaintiffs Donald York Evans and John Witherow, is hereby

25 amended and re-issued as follows.

26

27

IT IS HEREBY ORDERED AND ADJUDGED that Defendants Lenard Yare,

28 Rosemary Seals, Kelly Balenger, their officers, agents, servants,

\I
Case 3:05-cv-00327-ECR-RAM Document 137 Filed 12/29/2006 Page 2 of 3

employees, and attorneys, and those persons in active concert or

2 participation with any of them or each of them, who receive actual

3 notice of this order by personal service or otherwise, are hereby

4 preliminarily enjoined and restrained, pending the further

5 proceedings in this case, from denying Plaintiff Witherow the

6 receipt or forwarding of mail involving legal matters, which has

7 been identified as such by the sender, Plaintiff Evans, when either

8 of the following individual conditions are met:

9

(1) The mail consists of regularly published court decisio~s,

10 laws or regulations;

11

(2) Where the mail does not consist of regularly pUblished

12 court decisions, laws or regulations, Witherow's correspondence

13 regarding legal matters shall not be interfered with if the names,

14 social security numbers, addresses, and other identifying

15 information of other persons are blacked out.

16

Prison employees may examine mail from Evans to Witherow to

17 ensure that the conditions above are met.

J8

IT IS FURTHER ORDERED that the Court reserves and shall retain

19 jurisdiction of all matters relating to this preliminary 20 injunction, including the performance thereof and compliance

21 therewith.

22

IT IS FURTHER ORDERED that Defendants shall provide actual

23 notice of this injunction to their officers, agents, servants,

24 employees, and attorneys, and upon those persons ir active cor.cer~

or participation with any of them or each of them.

26

IT IS FURTHER ORDERED that posting of security is waived. The

27 First Amendffi<2nt rights sought to be protected by P:'aintiffs present

28

2

CIIase 3:05-cv-00327-ECR-RAM Document 137 Filed 12/29/2006 Page 3 of 3

overriding issues of public policy that justify waiver of security

2 pursuant to Fed. R. Civ. P. 62 (c).

3

~g!day 4 This

of December, 2006.

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UNITED STATES DISTRICT JUDGE

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 402 F.Supp.2d 1188 (2005)
Donald York EVANS and John Witherow, Plaintiffs, v.
Lenard VARE, Rosemary Seals, Kelly Balenger, and Does 1-X, Defendants.
No. 3:05-CV-3CR-RAM.
United States District Court, D. Nevada.
November 18, 2005.
118990 *1189 *1190 Donald Evans and John Witherow: Robert R. Hager, Hager & Hearne, Reno, NV, for Plaintiffs.
Lenard Vare, Rosemary Seals, Kelly Balenger: Daniel Wong , Nevada Attorney General's Office, Carson City, NV, for Defendants.
ORDER
REED, District Judge.
I. Procedural Background
1191 On June 2, 2005, Plaintiffs Donald York Evans and John Witherow ("Plaintiffs") *1191 filed a Complaint (# 2) alleging violations of their First and Fourteenth Amendment rights by Defendant Prison Officials Lenard Vare, Rosemary Seals, and Kelly Balenger ("Defendants"). On June 15, 2005, Plaintiffs filed a First Amended Complaint (# 8) and a First Amended Motion for Preliminary Injunction (# 9). Defendants opposed (# 14) on July 18, 2005, and Plaintiffs replied (# 16) to the opposition on August 10, 2005. An evidentiary hearing was held on October 27, 2005, and we now rule on the motion (# 9).
For the reasons stated below, Plaintiffs' motion will be granted on the basis set forth in this order.
II. Factual Background
Plaintiff Witherow is incarcerated in the State of Nevada. Plaintiff Evans is Witherow's attorney and friend. Witherow has engaged in compensated paralegal work for Evans and other attorneys in the past, but claims he has not done so since 1997. The two plaintiffs have a long relationship of correspondence regarding civil rights issues pertaining to Witherow's own case and to greater prisoner civil rights issues in general.
In 1999, Evans wrote a letter to Witherow stating he wanted to employ him for some paralegal work. (Def.Opp.Ex. J.) Witherow applied for permission to operate a business pursuant to a newly adopted statute in Nevada, N.R.S. 209.4615. The warden at that time, who is not a party to this lawsuit, denied the request without explanation. (Def.Opp.Ex. L.) The two plaintiffs then continued their correspondence regarding civil rights.
At the hearing, evidence was presented that from 2001 until 2004, Evans deposited $413 into Witherow's account. In April of 2004, Evans attempted to deposit $100 into Witherow's prison account. (Def. Opp. Ex. O & P.) Defendants believed the money was compensation for business activities, and prevented its deposit in Witherows' account. Witherow claims that the money sent to him from Evans is similar to that sent from other friends and family, and is not compensation for business activities. (Def.Opp.Ex. S.)
In May of 2004, Defendants began censoring various public record documents sent by Evans to Witherow. (Pl.Mot.Ex. B.) On November 23, 2004, Defendant Vare sent a letter to Witherow stating he would be prohibiting future correspondence between Witherow and Evans "involving legal work and cases, other than [Witherow's] own personal legal matters." The stated reasons for his decision were:
1. [Witherow has] admitted . . . that Mr. Evans and [he] have engaged in a business enterprise in the past.

2. [Witherow was] denied permission to engage in a business relationship with Mr. Evans in 1999 by then director, Bob Bayer.
3. [Witherow is] presently being sent documents related to civil rights cases as well as other legal documents for [his] review and opinion by Mr. Evans.
4. Mr. Evans, by [Witherow's] own admission, sends money to [Witherow's] prison account.
(Def. Opp. Ex. T. (formatting altered).)
According to prison policy, all mail stamped "privileged correspondence" is opened by the law librarian and 1192 scanned for contraband, but not read, in the presence of the inmate recipient.[1] Pursuant to *1192 the policy
delineated by Vare in the above letter, documents involving legal work and cases other than Witherow's own personal legal matters are treated by the law librarian as contraband. Since at least November of 2004, Defendants have repeatedly denied Witherow access to correspondence from Evans when that correspondence contained court orders with the names of parties other than Witherow's.
Plaintiffs now move for a preliminary injunction "enjoining, restraining and prohibiting Defendants . . . from restricting, prohibiting, or refusing to deliver Plaintiff Evans' communications to and from [Plaintiff] Witherow regarding various civil right[s] issues, court actions, legal work in progress, or any criminal or civil cases." (Pl. Mot. at 1.)
III. Discussion
A party seeking a preliminary injunction must meet one of two tests in the Ninth Circuit. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir.1994). The traditional test requires a plaintiff to show that:
1. [he] will suffer irreparable injury if injunctive relief is not granted;
2. [he] will probably prevail on the merits;
3. in balancing the equities, the [defendant] will not be harmed more than the [plaintiff] is helped by the injunction; and
4. granting the injunction is in the public interest.
Id. (formatting altered).
In the alternative, a court may issue a preliminary injunction if the plaintiff shows either:
1. "a combination of probable success on the merits and the possibility of irreparable injury;" or
2. "that serious questions are raised, and the balance of hardships tips sharply in his favor."
Id. (formatting altered).
Although phrased as such, the alternative test is less an either/or formulation as it is a type of sliding scale. Its two prongs represent "`extremes of a single continuum,' rather than two separate tests." Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999) (quoting Benda v. Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978)). That is, the more the balance of hardships tips in favor of the plaintiff, the less probability of success must be demonstrated. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir.1999).
Whichever test is applied, a preliminary injunction should only be granted if the movant does not have an adequate remedy at law. Stanley, 13 F.3d at 1320 (citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, n. 8, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). A preliminary injunction is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2948 (2d ed.1995)). "The cases best suited

to preliminary relief are those in which the important facts are undisputed, and the parties simply disagree about 1193 what *1193 the legal consequences are of those facts." Remlinger v. State of Nev., 896 F.Supp. 1012, 1015
(D.Nev.1995).
A. Irreparable Injury
Plaintiffs allege irreparable injury to their First Amendment rights resulting from Defendants' blanket prohibition of all legal mail perceived by Defendants as not directly pertaining to Witherow's case. The First Amendment rights of both the writer and the intended reader are impinged when correspondence is censored by prison officials. Procunier v. Martinez, 416 U.S. 396, 408-409, 94 S.Ct. 1800, 40 L.Ed.2d 224, (1974), overruled on other grounds in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Furthermore, the federal courts have "heightened concern" for protecting "legal mail," such as that between a prisoner and his attorney, and the prisoner's attendant right of access to the courts. Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir.2003) (citing, e.g., Davis v. Goord, 320 F.3d 346, 351 (2nd Cir.2003)); Taylor v. Sterrett, 532 F.2d 462, 470-72 (5th Cir.1976). "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (also finding "threatened" First Amendment rights to constitute irreparable injury). Thus, because Plaintiffs have alleged injury to their First Amendment and other constitutional rights, Plaintiffs have demonstrated the irreparable injury prong of the alternative preliminary injunction test.
B. Probable Success on the Merits
In order to justify the "extraordinary remedy" of a preliminary injunction, Plaintiffs must also demonstrate their probable success on the merits of their claims. The Ninth Circuit has held that prison policies may infringe Plaintiffs' First Amendment and Due Process rights to receive mail in general, if those policies are "reasonably related to legitimate penological interests." Prison Legal News v. Lehman, 397 F.3d 692, 699 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The Supreme Court, established the following four-factor "Turner" inquiry to determine whether a policy is reasonably related to a legitimate penological interest:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective,
(2) whether there are alternative avenues that remain open to the inmates to exercise the right,
(3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and
(4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.
Id. (formatting altered).
However, the Ninth Circuit has not addressed what impact, if any, that the heightened concern accorded to the protection of legal mail should have on this test. See, e.g., Taylor, 532 F.2d at 470 ("the right of access to the courts is afforded special protection"). Thus, in order to address this problem, we look to the reasoning of other circuits and district courts.
In 1971, finding that it would not "unnecessarily hamper prison administration to forbid prison authorities to delete material from, withhold, or refuse to mail a communication between an inmate and his attorney . . . unless it can be demonstrated that a prisoner has clearly abused his rights of access," the Second Circuit reasoned
1194 *1194 It would be inappropriate on constitutional grounds, ironic, and irrational to permit drastic curtailment of constitutional rights in the name of punishment and rehabilitation, while denying prisoners a full opportunity to pursue their appeals and postconviction remedies. The generous scope of discretion accorded prison authorities also heightens the importance of permitting free and uninhibited access by prisoners to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers. The importance of these rights of access suggests the need for guidelines both generous and specific enough to afford protection against the reality or the chilling threat of administrative infringement.

Sostre v. McGinnis. 442 F.2d 178, 200, called into question on other grounds by Procunier, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224. A 1972 Second Circuit decision noted the distinction Sostre made between legal and nonlegal mail in holding that in order to justify official interference with legal mail, the prison must show "a compelling state interest centering about prison security, or a clear and present danger of a breach of prison security, or some substantial interference with orderly institutional administration." Goodwin v. Oswald, 462 F.2d 1237, 1244 (citation and alteration omitted). After examining the decisions of many courts, including the Second Circuit and the Supreme Court, the Fifth Circuit held in 1976 that "[b]efore procedures that impede a prisoner's access to the courts may be constitutionally validated, it must be clear that the state's substantial interests cannot be protected by less restrictive means." Taylor, 532 F.2d at 472.
What is unclear is the extent to which the Supreme Court's later adoption of the Turner reasonableness test for incoming non-legal mail trumps these early Second Circuit holdings establishing a more heightened type of scrutiny for legal mail. See Thornburgh v. Abbott, 490 U.S. 401, 411-414, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (rejecting a "least restrictive means" test for incoming prisoner personal mail because of the potential security threats presented by incoming mail, but not addressing the particular constitutional implications of interference with legal mail). Further complicating the analysis, the only post-Thornburgh circuit decisions to address legal mail do not examine issues of outright censorship, as occurs in this case, but rather address the prisoner's well-established right to have her legal mail opened and examined for contraband, but not read, in her presence. Davis v. Goord, 320 F.3d 346, 351 (2nd Cir.2003) (citing to Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), for basis of above-stated right); Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir.2003) (same). Nevertheless, the decisions do provide some guidance for addressing legal mail.
In Davis, the Second Circuit relied on pre-Thornburgh decisions to hold that "[r]estrictions on prisoners' [legal] mail are justified only if they `further one or more of the substantial governmental interests of security, order, and rehabilitation, and must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'" 320 F.3d at 351 (quoting Washington v. James, 782 F.2d 1134, 1139 (2nd Cir.1986) (alterations omitted)). The Davis court further held that a plaintiff states a "constitutional claim for violating his right to send and receive legal mail" when he establishes "an ongoing practice by prison officials of interfering with his [legal] mail [ ]or any harm suffered by him from the tampering." Id. at 352. Thus, the Second Circuit employs heightened scrutiny for legal mail.
1195 *1195 The Sixth Circuit was slightly more direct in tackling the problem of reconciling the special status of legal mail with the post-Thornburgh reasonableness model. In Sallier, the Sixth Circuit first noted that prisoners' general First Amendment right to receive mail may be infringed by "restrictions that are reasonably related to security or other legitimate penological objectives," as long as it is done "pursuant to a uniform and evenly applied policy with an eye to maintaining prison security." Sallier, 343 F.3d at 873-74 (citation omitted). The Sallier Court then emphasized:
when the incoming mail is "legal mail," we have heightened concern with allowing prison officials unfettered discretion to open and read an inmate's mail because a prison's security needs do not automatically trump a prisoner's First Amendment right to receive mail, especially correspondence that impacts upon or has import for the prisoner's legal rights, the attorney-client privilege, or the right of access to the courts.
Id. (citing, e.g., Davis, 320 F.3d at 351). Therefore, Sallier held, when mail from a legal source involves "protecting a prisoner's access to the courts and other governmental entities to redress grievances or with protecting an inmate's relationship with an attorney," the court "must balance the interest of prison security against the possibility of tampering that could unjustifiably chill the prisoner's right of access to the courts or impair the right to be represented by counsel." Id. at 874.
Although the Sixth Circuit's approach is somewhat softer than the Second Circuit's, both Circuits adopt tests involving a more piercing level of scrutiny than reasonableness when considering prison officials' actions that tamper with prisoners' legal mail. The fact that neither circuit directly addresses Thornburgh's repudiation of heightened scrutiny for nonlegal mail may be reconciled by the fact that no Supreme Court decision exists that directly addresses the proper level of scrutiny for legal mail.[2] Furthermore, while the Ninth Circuit has not directly addressed this issue, at least one post-Thornburgh Central District of California court adopted a least

restrictive means test for interference with legal mail. Burt v. Carlson, 752 F.Supp. 346 (C.D.Cal.1990).[3] We agree with these courts that the added constitutional concern of maintaining prisoners' access to the courts requires heightened scrutiny of prison officials' tampering with prisoners' legal mail. We therefore hold that restrictions on prisoners' legal mail are justified only if they further one or more of the substantial governmental 1196 interests of security, order, and rehabilitation, and must be *1196 no greater than is necessary for the protection of the particular governmental interest involved.
Because the parties have presented their arguments pursuant to a reasonableness analysis, we will identify their arguments as such, and adapt them to the heightened scrutiny analysis established above. Defendants have proposed the following as legitimate penological interests related to their restrictions: keeping confidential information from Witherow that could pose a security threat and keeping Witherow from practicing a business without approval from the prison director. Defendants cite administrative regulations and statutes as evidence of the legitimacy of these interests.
1. Confidentiality/Safety concerns
Defendants assert that Witherow's receipt of information which may contain personal information about other inmates and citizens in general poses a security threat in that the information may be used by Witherow or accessed by other inmates to cause harm. We agree that some forms of personal information, such as an inmate's status as a sex offender, could indeed present a security risk in certain circumstances. As discussed above, maintaining security is one of the substantial government interests we have identified that may justify interference with legal mail. Our next step, then, is to assess whether the restrictions placed on Plaintiffs' correspondence further this interest in a manner that is no more restrictive than is necessary for that furtherance.
Defendants' restrictions impose a complete ban on all correspondence between Witherow and Evans that appears to the law librarian to address cases other than Witherow's. This ban has been applied even to cases where the names of parties in an order have been blacked out. We find that the ban is more restrictive of Plaintiffs' constitutional rights than is necessary to maintain prison security.
Witherow and Evans maintain that their correspondence involves the discussion of legal issues pertinent to Witherow's own criminal and civil rights claims, as well as prisoner civil rights issues in general. We find that as long as the correspondence from Evans to Witherow is genuinely related to Witherow's own criminal and civil rights claims, then such correspondence falls within the definition of legal mail put forth and protected in Sallier, and Evans may correctly identify it as legal mail. 343 F.3d at 877. The fact that the correspondence consists of legal orders pertaining to persons other than Witherow does not mean that those orders are irrelevant to Witherow's claims, or that the prison officials are empowered to decide their relevance. See Sostre, 442 F.2d at 201. Rather, thorough analysis of legal orders and opinions on relevant issues is the cornerstone of effective litigation. However, any correspondence between the parties that does not involve protecting Witherow's access to the courts and, thus, would be better classified as personal correspondence between the two as friends, should not be afforded the same protection as legal mail.[4] It is up to the sender, in this case, Mr. Evans, to properly identify the correspondence as legal mail. See Wolff, 418 U.S. at 577, 94 S.Ct. 2963 (finding it 1197 appropriate to require attorney to identify *1197 legal mail as such in order to be protected).
Any actions taken by prison officials in regard to correspondence between Witherow and Evans that has been identified as legal mail must constitute the least restrictive means of furthering prison security. We note that except in the possible case of published decisions, knowing the identities of parties discussed in orders and decisions is not necessary for studying and effectively utilizing those orders and decisions. Therefore, we find that a policy whereby party names other than Witherow's or persons directly involved in Witherow's litigation, except in the case of published opinions or reference thereto, must be redacted in legal mail from Evans to Witherow, would properly balance the security interests of the prison with the potential for chilling Witherow's right of access to the courts and representation by counsel. See Sallier, 343 F.3d at 874. We further note that such a policy could be executed pursuant to Defendants' current "scan, not read," policy for legal mail, thereby preventing the implication of the constitutional concerns inherent in prison officials' reading of prisoner mail. See Burt, 752 F.Supp. at 348.

2. Prohibited Business Relationship
Defendants also cite their interest in preventing Witherow from conducting a paralegal business as a reason for denying his receipt from Evans of documents involving legal work and civil rights cases. Witherow had applied for permission to conduct a business pursuant N.R.S. 209.4615, which the former warden disapproved as per his discretion in that statute. Witherow claims that while he has engaged in compensated paralegal work for Evans and other attorneys in the past, he has not done so since 1997. Witherow claims further that his current correspondence with Evans is related to his own legal case and civil rights issues in general.
Defendants have presented some evidence of violence related to Witherow's legal work for another inmate; and the scope of N.R.S. 209.4615, which regulates inmate businesses, can be said to further the maintenance of prison order. Thus, keeping Witherow from conducting a paralegal business could be considered to be a substantial government interest when pursued in order to prevent further violence and maintain order. However, in order to prove a security threat exists that warrants interfering with Witherow's access to legal mail, Defendants would have to prove that Plaintiffs are currently engaging in a business relationship, and we find that their evidence falls short of so proving.
In addition, as with the case of preventing the dissemination of confidential information about inmates, we find that preventing all correspondence regarding cases other than Witherow's is more restrictive than necessary to protect the interests of prison security and order. For example, if, as discussed above, the names of all parties, other than those found in published decisions, are redacted from the correspondence, Plaintiff Witherow would be unable to effectively administer his suspected paralegal business. Furthermore, in balancing the competing interests presented by the factual record, we find that the potential risks to security and order presented by Witherow's suspected, but unproven, paralegal business are outweighed by the substantial and actual risks of chilling his access to the courts and counsel by preventing all consideration of court orders and opinions with names other than his own.
Therefore, Plaintiffs have demonstrated both irreparable injury to their constitutional rights and probable success on the merits of their claims.
1198 *1198 IT IS HEREBY ORDERED that Plaintiff's First Amended Motion for Preliminary Injunction (# 9)is GRANTED. A preliminary injunction order shall be issued forthwith.
[1] The method of scanning testified to at the hearing consists of looking for drugs and physical contraband under the staples and in the pages, and looking at the title names of documents. It is not clear to what extent the scanning process picks out names throughout the documents, and to what extent such a process would constitute reading, as opposed to scanning. We will assume for purposes of this order that the methods used by Defendants follow their own guidelines and established jurisprudence and do not involve reading. See Burt, 752 F.Supp. at 348; (Admin.Reg.722.06.1.4.2, Def.Opp.Ex. AA.)
[2] While one Supreme Court decision to address a legal mail question did find that a requirement that legal mail may be opened in the presence of a prisoner did not constitute censorship nor did it chill attorney-client communications as the mail would not actually be read, it did not set forth any particular level of scrutiny for legal mail restrictions. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). A 1941 decision invalidating regulations requiring all legal documents to be submitted to and reviewed by prison officials did so, succinctly, on the basis that the regulations impaired prisoners' specific right to Habeas Corpus, but did not address access to the courts in general. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 642, 85 L.Ed. 1034 (1941).
[3] We note that Burt's citation of Procunier for the proposition that the least restrictive means test applies to infringement of apparently any constitutional right appears to not take into consideration the recent Thornburgh decision and, therefore, calls Burt's reasoning into question. However, because Burt applies the test to interference with legal mail, and because Thornburgh does not address legal mail, as discussed above, Burt does provide at least some indication of how a more thorough examination of the issue in the Ninth Circuit may unfold.

[4] We note that in the vast majority of cases, all mail between an attorney and a prisoner would be properly identified as legal mail. It is the unique relationship present in the case at bar, wherein the parties have both a personal friendship and a legal relationship, that warrants our recognizing a distinction between legal and personal mail between the two.
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 Case 3:05-cv-00327-RAM Document 168 Filed 04/11/08 Page 1 of 2

1

2

3

4

5

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

6

7

DONALD YORK EVANS and JOHN

)

8 WITHEROW,

)

)

9

Plaintiffs,

)

)

10

vs.

)

)

11 LENARD VARE, ROSEMARY SEALS, )

KELLY BALENGER, et al.,

)

12

)

Defendants.

)

13 ____________________________________)

3:05-CV-327-RAM PERMANENT INJUNCTION

14

Based on the agreement of the parties at the settlement of this case:

15

IT IS HEREBY ORDERED AND ADJUDGED that Defendants Lenard Vare, Rosemary Seals,

16 Kelly Balenger, their officers, agents, servants, employees, and attorneys, and those persons in active

17 concert or participation with any of them or each of them, who receive actual notice of this order

18 by personal service or otherwise, are hereby permanently enjoined and restrained from denying

19 Plaintiff Witherow the receipt or forwarding of mail involving legal matters, which has been

20 identified as such by the sender, Plaintiff Evans, when either of the following individual conditions

21 are met:

22

(1) The mail consists of regularly published court decisions, laws or regulations;

23

(2) Where the mail does not consist of regularly published court decisions, laws or

24

regulations, Witherow’s correspondence regarding legal matters shall not be

25

interfered with if the names, social security numbers, addresses, and other identifying

26

information of other persons are blacked out.

27

Prison employees may examine mail from Evans to Witherow to ensure that the conditions

28 above are met.

Case 3:05-cv-00327-RAM Document 168 Filed 04/11/08 Page 2 of 2

1

IT IS FURTHER ORDERED that the court reserves and shall retain jurisdiction of all matters

2 relating to this injunction, including performance thereof and compliance therewith.

3

IT IS FURTHER ORDERED that Defendants shall provide actual notice of this injunction

4 to their officers, agents, servants, employees, and attorneys, and upon those persons in active concert

5 or participation with any of them or each of them.

6

DATED: April 11, 2008.

7

8

9

____________________________________

UNITED STATES MAGISTRATE JUDGE

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 ORIGINAL Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 1 of 12

Robett R. Hager, Esq. #1482 HAGER & HEARNE 2 910 East Pan Blvd., Suite 8 Reno, NV 89512
3 Telephone: #775/329.5800
Facsnnile: #775/329.5819 4 Attorney For Plaintiffs

:,

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-- lu·:,.'·..~·.·. : .
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6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA

9 DONALD YORK EVANS, and

JOHN WITHEROW

10

Plaintiffs,

1 l

v.

12:

LENARD VARE, ROSEMARY 13 SEALS, KELLY BALENGER, and
DOES 1-X,

14

Defendants.

15

I

CASE NO. CV-N-05-0327-ECR-RAM

16

FIRST AMENDED PLAINTIFFS' COMPLAINT

17

COMES NOW Plaintiffs above-named, by and through their undersigned counsel, ,

18 ROBERT R. HAGER, ESQ., and hereby complains and alleges against Defendants, and each 19 of them as follows:

20

JURISDICTION

21

I. Jurisdiction of this Court over the claims alleged in this action is found in the

22 provisions of 28 U.S.C. 1331, 1343, 1651, 220 I and 2202 and 42 U.S.C. §§ I983 and 1988.

23,

VENUE

!

24

2. Venue lies properly in this Court pursuant to 28 U.S.C. § 1391.

25

PARTIES

26

3. Plaintiffs DONALD YORK EVANS (PlaintiffEVANS) is a citizen ofthe United

27 States and a resident of the State of Nevada, with a business mailing address oCP.O. Box 864, 28 Reno, NV 89504, telephone number (775) 348-7400, and at all times relevant to the claims

-I-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 2 of 12

alleged in this action he is an attorney duly authorized to practice law in the courts of the United 2 States and Nevada and he has a professional and personal association and friendship with

3 Plaintiff JOHN WITHEROW.

4

4. Plaintiff JOHN WITHEROW (PlaintiffWlTHEROW) is a citiz,~n of the United

5 States and is a prisoner confined by the Nevada Department of Corrections (NDOC) at

6 Lovelock CoiTectional Center (LLC).

7

5. Defendant LENARD VARE (Defendant VARE) is believed to b·e a citizen of the

X United States and a resident of the State of Nevada, with a business ma1ling address of 1200

9 Prison Road, Lovelock, NV 89419, telephone number (775) 273-1300, and at all times relevant

I0 to the claims alleged in this action he was acting under color of state law as the Warden of the

I I LCC for the NDOC.

12

Defendant ROSEMARY SEALS (Defendant SEALS) is believed to be a citizen

n of the United States and a resident of the State of Nevada, with a business mailing address of

14 1200 Prison Road, Lovelock, NV 89419, telephone number (775) 273-1300, and at all times

15 relevant to the claims alleged in this action she was acting under color of state law as the

16 Assoc:.ate Warden of Programs (AWP) at the LCC for the NDOC.

17

-,
/.

Defendant KELLY BALENGER (Defendant BALENGER) is believed to be a

IR citizen of the United States and a resident of the State of Nevada, with a business mailing

19 address of 1200 Prison Road, Lovelock, NV 89419, telephone number (775) 273-1300, and at

20 all times relevant to the claims alleged in this action she was acting under color of state law as

21 the Libraty Supervisor of the LCC for the NDOC.

22

8. Defendants DOES I-X, whose true identities are unknown to Plaintiffs at this

23 time, are believed to be citizens of the United States and residents of the State of Nevada and

24 are believed to be responsible in some manner for the events and occuiTences that are the

25 subject of this Complaint. Plaintiffs will seck leave to amend this Complaint to insert the true

26 name(:;) of these Defendants when the same has been ascertained, with appropriate allegations

27 pertaining to their capacities and conduct while acting under color of state law.

28 //

2-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 3 of 12

9. Defendants, and each of them, are sued in both their official and individual

2 capacities for their conduct while acting under color of state law.

3

FACTS

4

l 0. PlaintiffEVANS is a civil rights activist and he has engaged in various civil rights

5 litigation on behalf of prisoners and other oppressed persons against various government

6 officials for over 17 years.

7

11. Plaintiff WITHEROW is a layman, self and college trained as a paralegal/law

K clerk, and he is a civil rights activist engaged in various civil rights activities on his own behalf

9 and on behalf of other prisoners and oppressed persons against government officials for over

I 0 25 year-;.

ll

12. Plaintiff EVANS met Plaintiff WITHEROW over 20 years ago, he has

12 represented Plaintiff WITHEROW in both criminal and civil matters dming the past 20 years,

13 he has retained the services of Plaintiff WITHEROW as a paralegal/law clerk in the past, he 14 intends to retain the services of Plaintiff WITHEROW as a paralegal/law clerk in the future.

15 Plaintiff EVANS has the utmost respect for the skills, abilities and knowledge of Plaintiff 16 WITHEROW in both criminal and civil litigation, he has a common intere;t with Plaintiff

17 WITHEROW in the civil rights of prisoners and other oppressed people, he has considered

18 Plaintiff WITHEROW as a friend, colleague and contemporary civil rights activist for a 19 substantial period of time and he is currently engaged with Plaintiff WITHEROW in various

20 relationships, excluding a relationship relating to retention of his services as a paralegal/law

2! clerk

22

l J.

Plaintiffs discuss and consult frequently on various civil rights activities ofmutual

23 interest

24

l4. Defendants BALENGER and SEALS, jointly and together in concert, in

25 conspiracy to hinder and impede civil rights activities, began engaging in repeated acts of

26 censoring Plaintiff EVANS' correspondence to Plaintiff WITHEROW and refusing to deliver

27 to Plaintiff WITHEROW various letters and public records.

28 /1

-3-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 4 of 12

l 5. PlaintiffEVANS' attempted to resolve this matter informally with prison officials

2 and Deputy Attorney General Daniel Wong and, after several months, his censmcd and withheld

3 letters and the public records were delivered to Plaintiff WITHEROW He assumed the matter

4 was resolved.

5

16. Defendant SEALS on November 8, 2004 met personally with Plaintiff

(, WITHEROW to resolve a grievance (No. GR-2004-19-7821) pertaining to claim;; involving

7 copy work and retaliation against him for exercising his constitutional rights. After reaching

R an agreement regarding resolution of the grievance, Defendant SEALS infom1ed Plaintiff

9 WITHEROW that she was prohibiting him from communicating with Plaintiff EVANS

I 0 regarding various civil rights litigation other than his own cases.

11

17. Defendant SEALS failed to provide Plaintiff EVANS with notice or an

12 opportunity to appeal her decision to censor, prohibit and restrict Plaintiff EVANS'

13 communications with Plaintiff WITHEROW involving civil rights litigation.

14

18. Plaintiff WITHEROW on November 10, 2004 wrote to NDOC Director

15 CRAWFORD regarding the decision of Defendant SEALS to restrict prohibit and censor his

16 communications with Plaintiff EVANS regarding civil rights litigation other than his own.

17

19. Defendant VARE on November 23, 2004, after consultation and discussion with

18 Defendants BALENGER and SEALS, wrote Plaintiff WITHEROW a letter in response to 19 Plaintiff WITHEROW's communication to Director CRAWFORD advising Plaintiff

20 WlTHEROW, among other things, that: "1 find it very difficult to find your relationship with

21 Mr. Evans to be anything but professional and business in nature" and "1 am therefore denying

22 future correspondence between yourself and Mr. Evans involving legal work and cases, other

23 than your own personal legal matters".

24

20. Defendant VARE failed to provide PlaintiffEVANS with notice or an opportunity

25 to appeal his decision to restrict, prohibit and censor Plaintiff EVANS' communications with

26 PlaintiffWITHEROW involving civil rights and other cases other than PlamtiffWlTI-IEROW's

27 own personal legal matters.

28 II

- Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 5 of 12

21. Plaintiff WITHEROW on November 30, 2004 submitted a grievance (No. GR-

2 2004-19-71 07) regarding the restrictions, prohibitions and censorship of his communications

3 with Plaintiff EVANS regarding civil rights and other cases other than his own personal legal

4 matters.

5

22. Plaintiff EVANS on or about February 9, 2005 caused to be mailed to Plaintiff

(> WITHEROW a public record decision from a civil rights case pending in this Court of mutual

7 interest to both of them for review.

X

23. Defendants BALENGER and SEALS, jointly and together i1 concert, after

'J consultation and discussion, pursuant to Defendant YARE's restriction, Jrohibition and

I 0 censorship imposed on PlaintiffEVANS' communication with PlaintiffWITHEROW regarding

II civil rights and other legal matters on February II, 2005, refused to deliver Plaintiff EVANS'

12 Fcbruary9, :2005 communication to PlaintiffWITHEROW andrequiredPlaintiffWITHEROW

13 to retum the public record decision to Plaintiff EVANS without an opportunity to review the

14 communication.

15

24. Defendants BALENGER, SEALS and VARE failed to provide PlaintiffEVANS

16 with notice or an opportunity to appeal the February ll, 2005 decision to refuse to deliver

17 Plaintiff EVANS' February 9, 2005 communication to Plaintiff WITHEROW and the

18 censorship of that communication.

19

25. Defendants, and each of them, acted intentionally, or recklessly, with deliberate

20 disregard for Plaintiffs' constitutional rights in their above-described conduct and Defendants,

2 J and each of them, engaged in the above-described conduct without legitimate or reasonable

22 penological purpose or goal.

23

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

24

FIRST CAUSE OF ACTION

25

42 U.S.C. § 1983

26

(Declaratory Relief)

27

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

28 of this Complaint as though fully set forth here.

-5-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 6 of 12

38. Defendants, and each of them, knew, or should have known, that their above-

2 described conduct denied and deprived Plaintiffs of the above-described right in violation of l 42 U.S.C. § 1983.

4

]9. Plaintiffs suffered, and continues to suffer, injuries and damages as a direct or

5 proximate result of the above-described conduct of Defendants, and each of them, as will more

6 fully appear at trial.

7

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

8

PUNITIVE DAMAGES

9

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

I0 . of this Complaint as though fully set forth here.

II

40. Plaintiffs allege that Defendants, and each of them, acted with deliberate

12 indifference to Plaintiffs' clearly established constitutional rights, violating those rights and

13 causing them to suffer injuries and damages, and therefore, punitive damages should be 14 award,~tl to punish these Defendants for their misconduct and to deter similar misconduct in the

15 future, with the amount of punitive damages to be dctcnnined by the trier of fact at trial.

16

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

17

JURY TRIAL DEMANDED

18

Plaintiffs incorporate by reference all allegations contained in allnumb·~red paragraphs

19 of this Complaint as though fully set forth here.

20

41. Plaintiffs demand a trial by jury on all of the facts which may be submitted to a

21 jury for determination in this action.

22

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

23

PREVIOUS LAWSUITS AND ADM!NISTRATlVE REMEDIES

24

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

25 of this Complaint as though fully set forth here.

26

42. Plaintiffs have not filed any previous lawsuits pe11aining to the claim alleged in

27 this ac·:ion.

28 II

-I 0-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 7 of 12

26. Plaintiffs request declaratory relief pursuant to Fcd.R.Civ.P. Rule 57 and 2:'\

2 U.S.C. s· 220 I determining that:

3

(a) They have a clearly established right to freedom of speech, to freedom of

4 associatton and to petition the government for redress ofgrievances under the First Amendment

5 of the US. Constitution and each of those rights are protected by the Due Process Clause of the

6 Fourteenth Amendment of the U.S. Constitution;

7

(b) Plaintiff EVANS has a clearly established right to communicate with

8 Plainti•'lWITHEROW under the First Amendment ofthc U.S. Constitution regarding any civil

9 rights matters of interest to him and to receive communications from Plainti cf WITHEROW

II) expressing Plaintiff WITHEROW's views, opinions and comments regarding those civil rights

11 matters;

12

(c) Any written document filed in the record of any court of this country in a

13 cnminal or civil case that is not subjected to a protective or sealing order is a public record;

14

(d) Defendants' restrictions and prohibitions imposed on PLtintiffEVANS'

15 communications with Plaintiff WITHEROW involving legal work and civil rights cases is

16 censorship and a violation of Plaintiffs' rights under the First Amendmt~nt of the U.S.

17 Constitution and the provisions of 42 U.S.C. § 1983; and

18

(e) Defendants' refusal to deliver PlaintiffEVANS' wntten communications

19 and/or public records sent to Plaintiff WITHEROW through the mail is censorship and a

:~o violation of Plaintiff EVANS' rights under the First Amendment of the U.S. Constitution.

:~ 1

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

>7 I

SECOND CAUSE OF ACTION

· · - ti

n

(Injunctive Relief)

:~4

Plaimiffs incorporate by reference all allegations contained in all numbered paragraphs

25 of this Complaint as though fully set forth here.

27. Plaintiffs request preliminary and permanent injunctive rei ief pursuant to
:'7 Fcd.R.Civ.P. Rule 65 and 28 U.S.C. § 1651 enjoining and prohibiting Defendants, and each of
:~8 them or their agents or employees from engaging in the following:

-6-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 8 of 12

(a) Imposing restrictions or prohibitions on PlaintiffEVANS' communications

2 and/or public records to or from PlaintiffWITHEROW on any civil rights or ot.hcr legal matter

3 Plaintiffs may decide to express their views, opinions or comments thereon to each other.

4

(b) Refusing to deliver within 24 hours of receipt by the \JDOC Plaintiff

5 EVANS' written communications and/or public records sent to Plaintiff WlTHEROW for

6 review on any civil rights or other legal matter he may deem of interest to Plaintiff

7 WITHEROW or upon which he desires the views, ideas or opinions of PlaintilfWITHEROW

8 thereon; and

9

(c) Reading PlaintiffEVANS' confidential legal comnwnications to Plaintiff

10 WITHEROW regarding any legal matters he may be pursuing, or comidering pursuing, on

11 behalf of Plaintiff WITHEROW or any other person.

12

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

13

THIRD CAUSE OF ACTION

14

42 U.S.C. § 1983

15

U.S. Constitution/Amendment

16

Plaintiffs incorporate by reference all allegations contained in allmtmbered paragraphs

17 of this Complaint as though fully set forth here.

18

28. Plaintiffs were denied their right to freedom of speech, to freedom ol' association

19 and to petition the government for redress of grievances, as guaranteed by the First A mcndmcnt

20 of the United States Constitution, in violation of 42 U.S. C.§ 1983, when Defendants VA REo,

21 SEALS and BALENGER, acting jointly and together in concert, imposed restrictions and

22 prohib tions on Plaintiff EVANS' communications to and from Plaintiff WITHEROW

23 regarding civil rights and other legal matters.

24

29. Defendants, and each of them, knew, or should have known, that their abo\c-

25 described conduct denied and deprived Plaintiffs of the above-descnbed rights in violation of
26 42 U.S.C. q 1983.

/I
"

28

I I
"

-7-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 9 of 12

30. Plaintiffs suffered, and continue to suffer, injuries and damages as a direct or

2 proximate result of the above-described conduct of Defendants, and each of them, as will more

3 fu IIy appear at trial.

4

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

5

FOURTH CAUSE OF ACTION

6

Violation of First Amendment Rights

7

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

8 of this Complaint as though fully set forth here.

')

31. Plaintiffs were denied their rights to freedom ofspeech, to freedom ofassociation

I0 and to petition the government for redress of grievances, as guaranteed by the First Amendment

II of the U.S. Constitution in violation of 42 U.S.C. § 1983, when Defendants V ARE, SEALS and

12 BALENGER, actingjointly and together, in concert, refused to deliver to PlaintiffWITH EROW

13 on Fcbmary II, 2005 the public record Plaintiff EVANS sent to Plaintiff WITHEROW f()r

14 review and required Plaintiff WITHEROW to return that public record to Plaintiff EVAJ\S

15 without providing Plaintiff WITHEROW with an opportunity to review that public record.

16

32. Defendants, and each of them, knew, or should have known, that their above-

17 descril:ed conduct denied the deprived Plaintiffs of the above-described rights in violation of

18 42 U.S.C. § 1983.

t')

33. Plaintiffs suffered, and continues to suffer, injuries and damages as a direct or

:10 proximate result of the above-described conduct of Defendants, and each of them as will more

ZI fully appear at trial.

n

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

n

FIFTH CAUSE OF ACTION

.24

Violation of Fourteenth Amendment Rights

:zs

Plaimiffs incorporate by reference all allegations contained in all numbered paragraphs

.26 of this Complaint as though fully set forth here.

n

34. Plaintiffs were denied their right to due process of law, as guaranteed by the

:zs Fourteenth Amendment of the U.S. Constitution, in violation of 42 U.S.C. ~ I'J83, when

-8-

Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 10 of 12

Defendants VARE, Seals and BALENGER, acting jointly and together, in conccr1, imposed

2 restrictions and prohibitions on Plaintiff EVANS' communication to and from Plaintiff 3 WITHEROW regarding civil rights and other legal matters without providing hirn with notice 4 of those restrictions and prohibitions and without providing him with an oppo:·tunity to appeal

5 those restrictions and prohibitions.

6

35. Defendants, and each of them, knew, or should have known, that their abow-

7 described conduct denied and deprived Plaintiff EVANS of the above-described right in

8 violation of 42 U.S.C. § 1983.

9

36. Plaintiff EVANS suffered, and continues to suffer, injuries and damages as a

10 direct or proximate result of the above-described conduct of Defendants. and ·.~ach of them, as

ll will more fully appear at trial.

12

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

l.l

SIXTH CAUSE OF ACTION

14

42 U.S.C. § 1983

15

Violation of Fourteenth Amendment Rights

16

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

17 of this Complaint as though fully set forth here.

18

37. Plaintiffs were denied their right to due process of law, as guaranteed by the

l9 Fmniccnth Amendment of the U.S. Constitution, in violation of 42 U.S.C. 0 1983, whc:n

:~o Defendants YARE, SEALS and BALENGER, acting jointly and together, in :oncert, refused

21 to deliver Plaintiff EVANS' February 9, 2005 communication of a public record to Plaintiff

WITHEROW and required Plaintiff WITHEROW to return that public record to him, without

pern1itting Plaintiff WITHEROW with an opportunity to review that public record, without

providing Plaintiff EVANS with notice of the decision not to deliver that cornmun:cation and

:~5 without providing him with an opportunity to appeal the decision to refuse to deliver that

communication .
..
!I

:~8 //

-9-

- Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 11 of 12 ...--

38. Defendants, and each of them, knew, or should have known, that their above-

2 described conduct denied and deprived Plaintiffs of the above-described right in violation of
3 42 u.s.c. § 1983.

4

39. Plaintiffs suffered, and continues to suffer, injuries and damages as a direct or

5 proximate result of the above-described conduct of Defendants, and each ofth•cm, as Willmore

6 fully appear at trial.

7

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated belov>.

8

PUNITIVE DAMAGES

9

Plaintiffs incorporate by reference all allegations contained in all numbered paragraphs

I0 of this Complaint as though fully set forth here.

I I

40. Plaintiffs allege that Defendants, and each of them. acted wih deliberate

12 indifference to Plaintiffs' clearly established constitutional rights, violating :hose rights and

13 causing them to suffer injuries and damages, and therefore, punitive damages should he

\4 awarded to punish these Defendants for their misconduct and to deter similar rr.isconduct in the

15 future, with the amount of punitive damages to be detem1ined by the trier of fact at trial.

16

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

17

JURY TRIAL DEMANDED

18

Plaintiffs incorporate by reference all allegations contained in all numbered oaragraphs

19 of this Complaint as though fully set f011h here.

:w

41. Plaintiffs demand a trial by jury on all of the facts which may be submitted to a

jury fo: determination in this action.

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated below.

PREVIOUS LAWSUITS AND ADMINISTRATIVE REMEDIES

Plainriffs incorporate by reference all allegations contained in all numbered paragraphs

of this Complaint as though fully set forth here.

42. Plaintiffs have not filed any previous lawsuits pertaining to the :!aim alleged in
n this action.
:~s /;

-10-

- Case 3:05-cv-00327-ECR-RAM Document 8 Filed 06/15/2005 Page 12 of 12

43. Plaintiff EVANS has no administrative remedy available to them to resolve the 2 claims allcg,2d in this action with the NDOC and therefore has no other adequate remedy at Ia\\ 3 other than the relief requested herein.

4

44. Plaintiff WITHEROW has exhausted his Admin9istrati ve Remedies with the

5 NDOC regarding these matters in Grievance Nos. GR-2004-19-71 07 and GR-2005-I 'l-!844.

6

WHEREFORE, Plaintiffs pray for relief as is more fully enumerated l:clow.

7

PRAYER FOR RELIEF

8

WHEREFORE, Plaintiffs pray for the following relief:

9

I. For the declaratory relief requested herein above;

10

2. For the injunctive rcliefrequested herein above;

l I

3. For nominal, compensatory and punitive damages for each of the Defendants 111

l2 an amount to be determined by the trier of fact;

!3

4. For a trial by jury on a11 issues so triable;

.4

5. For costs and attorney fees incurred by Plaintiffs in pursuit ofth~ claims a11eged

5 in this dction to be paid by Defendants herein;

6. For leave to amend this Complaint should the same become necessary; and

7

7. For any other or further relief deemed just and proper in the interests of fairness

8

19
;:o
21

.vi Ro e . Hager, sq. #I~ ----

HAGER & HEARNE

910 East Parr Blvd., Suite 8

Reno, NV 89512

Telephone: #775/329.5800

=A

~:5

~.6

·II·

 
 Case 3:05-cv-00327-ECR-RAM Document 29 Filed 11/18/2005 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

9

RENO, NEVADA

10

DONALD YORK EVANS and

)

11 JOHN WITHEROW,

)

)

12

Plaintiffs,

)

)

13 vs.

)

)

14 LENARD VARE, ROSEMARY SEALS, )

KELLY BALENGER, and DOES 1-X, )

15

)

Defendants.

)

16 ______________________________)

3:05-CV-0327-ECR-RAM ORDER

17 Preliminary Injunction
18 A preliminary injunction shall be issued in this case against
19 Defendants Lenard Vare, Rosemary Seals, and Kelly Balenger, in
20 favor of Plaintiffs Donald York Evans and John Witherow.
21 The injunction shall be issued for the reasons stated in the
22 written order issued concurrently on November 18, 2005.
23 IT IS, THEREFORE, HEREBY ORDERED AND ADJUDGED that Defendants
24 Lenard Vare, Rosemary Seals, Kelly Balenger, their officers,
25 agents, servants, employees, and attorneys, and those persons in
26 active concert or participation with any of them or each of them,
27 who receive actual notice of this order by personal service or
28

Case 3:05-cv-00327-ECR-RAM Document 29 Filed 11/18/2005 Page 2 of 2

1 otherwise, are hereby preliminarily enjoined and restrained,

2 pending the further proceedings in this case, from denying

3 Plaintiff Witherow the receipt or forwarding of legal mail, which

4 has been identified as such by the sender, Plaintiff Evans, when

5 that mail contains names of parties in published cases and/or when

6 all other names of persons that are not directly involved in

7 Plaintiffs’ legal matters have been blacked out. Any determination

8 of the above will be done pursuant to the prison’s scanning

9 procedures for legal mail.

10

IT IS FURTHER ORDERED that the Court reserves and shall retain

11 jurisdiction of all matters relating to this preliminary

12 injunction, including the performance thereof and compliance

13 therewith.

14

IT IS FURTHER ORDERED that Defendants shall provide actual

15 notice of this injunction to their officers, agents, servants,

16 employees, and attorneys, and upon those persons in active concert

17 or participation with any of them or each of them.

18

IT IS FURTHER ORDERED that posting of security is waived. The

19 First Amendment rights sought to be protected by Plaintiffs present

20 overriding issues of public policy that justify waiver of security

21 pursuant to Fed. R. Civ. P. 62(c).

22

23 This 18th day of November, 2005.

24

25

____________________________

26

UNITED STATES DISTRICT JUDGE

27

28

2

 
 Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 1 of 16
United States District Court District of Nevada (Reno)
CIVIL DOCKET FOR CASE #: 3:05−cv−00327−RAM

CLOSED

Donald York Evans and John Witherow VS Lenard Vare, et al Assigned to: Magistrate Judge Robert A McQuaid, Jr Case in other court: 9th Circuit, 05−17406
9th Circuit, 05−17409
USCA, 07−15147 Cause: 42 USC 198
Plaintiff

Date Filed: 06/02/2005 Date Terminated: 04/14/2008 Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Donald Evans

represented by Marc P Picker Marc Picker, Esq., Ltd. P.O. Box 3344 Reno, NV 89505−3344 775−324−4533 Email: mpickesq@msn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert R. Hager Hager and Hearne 245 E. Liberty St. Suite 450 Reno, NV 89501 775−329−5800 Fax: 775−329−5819 Email: office@hagerhearnelaw.com TERMINATED: 09/13/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald Y Evans Donald York Evans 216 East Liberty Street PO Box 864 Reno, NV 89504 Email: dyeltd@gbis.com ATTORNEY TO BE NOTICED

Treva J. Hearne Treva J. Hearne 450 Marsh Ave. Reno, NV 89509 775−329−5800 Fax: 775−329−5819 Email: thearne@hagerhearnelaw.com TERMINATED: 09/13/2006 ATTORNEY TO BE NOTICED

Plaintiff John Witherow

represented by John Witherow #29313 Nevada State Prison P.O. Box 607 Carson City, NV 89702 PRO SE

Marc P Picker (See above for address)

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 2 of 16
TERMINATED: 11/13/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R. Hager (See above for address) TERMINATED: 09/01/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Treva J. Hearne (See above for address) TERMINATED: 09/14/2006 ATTORNEY TO BE NOTICED

V. Defendant Kelly Balenger
Defendant Rosemary Seals

represented by Daniel Wong Nevada Attorney General's Office 100 North Carson Street Carson City, NV 89701−4717 775−684−1251 Fax: 775−684−1275 Email: dxwong@ag.state.nv.us TERMINATED: 03/14/2007 LEAD ATTORNEY
Janet E Traut Nevada Attorney General's Office Bureau of Litigation Personnel Division 5420 Kietzke Lane, Suite 202 Reno, NV 89511 775−850−4107 Fax: 775−688−1822 Email: jtraut@ag.nv.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth Nevada Attorney General's Office 100 North Carson St. Carson City, NV 89701−4717 Email: kwerth@ag.nv.gov TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart Office of the Attorney General 101 North Carson Street Carson City, NV 89701 (775) 684−1256 Fax: (775) 684−1275 Email: sstewart@ag.nv.gov TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Daniel Wong (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 3 of 16

Defendant Lenard Vare
Defendant Lenard Vare Rosemary 2nd Amended Complaint [71] Defendant Robert LeGrand 2nd Amended Complaint filed on 3/22/06 [71]
Defendant Craig Farwell 2nd Amended Complaint filed 3/22/06 [71]

Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Daniel Wong (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 4 of 16

Defendant Glen Whorton 2nd Amended Complaint filed on 3/22/06 [71]
Defendant Jackie Crawford 2nd Amended Complaint filed on 3/22/06 [71]
Defendant Greg Cox 2nd Amended Complaint filed 3/22/06 [71]
Defendant Cherie Scott 2nd Amended Complaint filed 3/22/06

Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY
Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY
represented by Janet E Traut (See above for address)

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 5 of 16

[71]

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Kelly S. Werth (See above for address) TERMINATED: 03/14/2007 LEAD ATTORNEY

Susan K. Stewart (See above for address) TERMINATED: 04/11/2008 LEAD ATTORNEY

Defendant
Does I−X 2nd Amended Complaint filed 3/22/06 [71]

Date Filed 06/02/2005 06/02/2005 06/02/2005 06/02/2005 06/02/2005 06/02/2005 06/03/2005
06/15/2005 06/15/2005 06/17/2005
07/11/2005 07/11/2005 07/11/2005 07/18/2005
07/27/2005 07/29/2005

# Docket Text
2 COMPLAINT obo P. (Entered: 06/02/2005)
3 MOTION FOR PRELIMINARY INJUNCTION mtn for prelim/injctn &req for hrg obo Ps. (no srv sho) (Entered: 06/02/2005)
1 MISCELLANEOUS DOCUMENT CIVIL COVER SHEET. (Entered: 06/02/2005)
4 SUMMONS ISSUED as to D, Kelly Balenger. (Entered: 06/02/2005)
5 SUMMONS ISSUED as to D, Rosemary Seals. (Entered: 06/02/2005)
6 SUMMONS ISSUED as to D, Lenard Vare. (Entered: 06/02/2005)
7 ORDER Ds shl hv 15dys aftr srvc of process and srvc of cpy of the mtn for preliminary injunction (#3) upon them within which time to rspnd to Ps mtn for prelim injunctn, thereaftr Ps will hv 15dys within which time to file a reply. (Entered: 06/06/2005)
8 AMENDED COMPLAINT first amended obo Ps (Entered: 06/15/2005)
9 MOTION FOR PRELIMINARY INJUNCTION (titled) first amended mtn for preliminary injunction request for hearing obo Ps. (Entered: 06/15/2005)
10 ORDER Ds shl hv 15dys aftr srvc of process and srvc of cpy of 1st amend mtn for prelim injunctn (#9) to rspnd to (#9). Thereaftr Ps will hv 15dys to file a reply to (#9). The first amend cmplnt (#8) and the first amend mtn for prelim injunctn (#9) suppl (Entered: 06/20/2005)
11 WAIVER OF SERVICE EXECUTED as to D−Lenard Vare signed by AG office. (Entered: 07/11/2005)
12 WAIVER OF SERVICE EXECUTED as to D−Rosemary Seals signed by AG office. (Entered: 07/11/2005)
13 WAIVER OF SERVICE EXECUTED as to D−Kelly Balenger signed by AG office. (Entered: 07/11/2005)
14 RESPONSE IN OPPOSITION TO MOTION to first amend mtn for prelim injunctn, req for hrg (#9) obo Ds. (m) plcd in sep folder due to size (Entered: 07/19/2005)
MISCELLANEOUS DOCUMENT stip and ord for enlrgmnt of time (Entered: 07/28/2005)
15 ORDER ON STIPULATION tht Ps hv til 8/10/05 to file their response to Ds oppo to first amended mtn for prelim injunction. (Entered: 08/01/2005)

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 6 of 16

08/10/2005 08/15/2005 09/27/2005 09/30/2005 10/14/2005 10/28/2005
10/28/2005 10/28/2005 10/31/2005 11/10/2005 11/17/2005 11/18/2005
11/18/2005 11/18/2005
12/02/2005 12/05/2005 12/05/2005 12/05/2005 12/06/2005 12/08/2005

16 REPLY TO RESPONSE TO MOTION to oppo (#14) to first amend pet for prelim injunctn (#9) obo Ps. (m) sep folder due to size (Entered: 08/12/2005)
17 ANSWER TO COMPLAINT answr to first amended cmplnt obo Ds. (m) (Entered: 08/17/2005)
18 AFFIDAVIT original affidavit of Lenard Vare and Kelly Belanger, copies attch'd to oppo (#14)(m) (Entered: 09/30/2005)
19 ORDER a hrg is set for 10/12/05 @ 10am on Ps first amend mtn for prelim injunctn (#9). (see ord for spec) (Entered: 09/30/2005)
20 ORDER ON STIPULATION tht the hrg sched for 10/12/05 is vacated and is resched for 10/27/05 @ 10am. (Entered: 10/17/2005)
21 MISCELLANEOUS HEARING dtd: 10/27/05; re: hrg on Ps first amend mtn for prelim injunctn (#9); CR: Margaret Griener; arguments are presented by respective cnsl; matter stands submitted; the crt will enter a written order (Entered: 10/28/2005)
22 EXHIBIT LIST on behalf of Ps. (Entered: 10/28/2005)
23 EXHIBIT LIST on behalf of Ds. (Entered: 10/28/2005)
24 ORDER parties have failed to submit a DPSO, parties hv 5dys frm receipt of this ord within which to submit a DPSO (see ord for spec) (Entered: 10/31/2005)
26 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Donald Evans, John Witherow. (WJ, ) (Entered: 11/17/2005)
25 PROPOSED Discovery Plan/Scheduling Order filed by Plaintiffs Donald Evans, John Witherow. (WJ, ) (Entered: 11/17/2005)
27 SCHEDULING ORDER; Discovery Cut−Off: March 13, 2006; Amended Pleadings: December 14, 2005; Dispositive Motions: April 11, 2006; Pretrial Order: May 10, 2006. Signed by Judge Robert A. McQuaid Jr. on 11/8/05. (HJ, ) (Entered: 11/18/2005)
28 Plaintiff's First Amended Motion for Preliminary Injunction 9 is granted. A preliminary injunction order shall be issued forthwith. Signed by Judge Edward C. Reed Jr. on 11/18/05. (KV, ) (Entered: 11/18/2005)
29 PRELIMINARY INJUNCTION re. treatment of legal mail between Plaintiffs. See Preliminary Injunction Order for specifics. Ordered the Court retains jurisdiction to preliminary injunction matters; ordered Defendants shall provide notice to persons in active participation; and ordered posting of security is waived. Signed by Judge Edward C. Reed Jr. on 11/18/05. (KV, ) (Entered: 11/18/2005)
31 MOTION to declare Plaintiff's the prevailing parties and request for attorney fees and costs by Plaintiffs Donald Evans, John Witherow. Responses due by 12/20/2005. (WJ, ) (Entered: 12/08/2005)
32 NOTICE of violation of preliminary injunction by plaintiffs obo Defendants Kelly Balenger, Rosemary Seals, Lenard Vare re 29 Preliminary Injunction,, 28 Order on Motion for Preliminary Injunction. (WJ, ) (Entered: 12/08/2005)
33 BILL OF COSTS in the amount of $963.30 by Plaintiffs Donald Evans, John Witherow. Tax or object to Bill of Costs by 12/15/2005. (WJ, ) (Entered: 12/08/2005)
34 ERRATA to 31 MOTION to declare P's the prevailing parties ; filed by Plaintiffs Donald Evans, John Witherow. (WJ, ) (Entered: 12/08/2005)
35 NOTICE of submission of unauthorized mail by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare (WJ, ) (Entered: 12/08/2005)
30 MOTION for leave of court to supplement Defendant's PAin suppot of opposition to First Amended Motion for preliminary Injunction with request for hearing by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Responses due by 12/26/2005. (WJ, ) (Entered: 12/08/2005)

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12/15/2005 12/15/2005 12/16/2005 12/19/2005 12/19/2005 12/20/2005 12/20/2005 12/22/2005 12/27/2005 12/27/2005 12/27/2005 12/27/2005 01/03/2006 01/04/2006
01/06/2006 01/06/2006 01/17/2006 01/17/2006 01/24/2006 01/24/2006

38 NOTICE OF APPEAL as to 29 Preliminary Injunction, by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Filing fee $ 255. (WJ, ) (Entered: 12/19/2005)
39 MOTION to Stay re 29 Preliminary Injunction,, 38 Notice of Appeal by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. (WJ, ) (Entered: 12/19/2005)
37 TRANSCRIPT of Proceedings: re Mtn for Prelim injunct held on 10/27/05 before Judge Edward C. Reed, Jr.. Court Reporter: Margaret E. Griener. (SA, ) (Entered: 12/16/2005)
40 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 38 Notice of Appeal. (WJ, ) (Entered: 12/19/2005)
41 NOTICE OF APPEAL as to 29 Preliminary Injunction, by Plaintiff Donald Evans. Filing fee $ 255. (WJ, ) (Entered: 12/20/2005)
42 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 41 Notice of Appeal. (WJ, ) (Entered: 12/20/2005)
43 STIPULATION − tht Ds shl hv til 1/4/06 to file their oppo to mtn to declare Ps the prevailing parties and req for atty's fees and costs by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. (JAR, ) (Entered: 12/20/2005)
44 ORDER ON STIPULATION re 43 Stipulation. Defendants shall have to January 4, 2006, to file opposition to Motion to Declare Plaintiffs the Prevailing Parties 31 . Signed by Judge Edward C. Reed Jr. on 12/22/05. (CLL, ) (Entered: 12/22/2005)
45 TRANSMITTAL RETURN of Notice of Appeal from USCA re 41 Notice of Appeal. USCA Case Number 05−17409. (WJ, ) (Entered: 12/28/2005)
46 ORDER for Time Schedule as to 41 Notice of Appeal 05−17409 dtd 12/23/05. see document (WJ, ) (Entered: 12/28/2005)
47 ORDER for Time Schedule as to 38 Notice of Appeal re 05−174406 filed 12/23/05. see document for particulars (WJ, ) (Entered: 12/28/2005)
48 TRANSMITTAL RETURN of Notice of Appeal from USCA re 38 Notice of Appeal. USCA Case Number 05−17406. (WJ, ) (Entered: 12/28/2005)
49 STIPULATION for Extension of Time to File Opposition to Motion to Stay by Plaintiff Donald Evans. (Hearne, Treva) (Entered: 01/03/2006)
50 RESPONSE to 31 MOTION; filed by Defendant Lenard Vare. Opposition to Motion to Declare Plaintiffs the Prevailing Parties and Request for Attorneys Fees and Costs Replies due by 1/18/2006. (Attachments: # 1 Affidavit of Kelly S. Werth# 2 Certificate of Service)(Werth, Kelly) (Entered: 01/04/2006)
51 ORDER ON STIPULATION re 49 Stipulation. Responses to motion for stay 39 due by 1/17/2006. Signed by Judge Edward C. Reed Jr. on 1/6/05. (CLL, ) (Entered: 01/06/2006)
52 COSTS TAXED in amount of $ 0.00 against no prevailing party having been found. (JAR, ) (Entered: 01/07/2006)
53 REPLY to Response to 31 MOTION; filed by Plaintiff Donald Evans. and John Witherow (Hearne, Treva) (Entered: 01/17/2006)
54 RESPONSE to 39 MOTION to Stay re 29 Preliminary Injunction,, 38 Notice of Appeal; filed by Plaintiff Donald Evans. and John Witherow (Hearne, Treva) (Entered: 01/17/2006)
55 NOTICE by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare Amended Notice of Plaintiffs' Second Violation of Preliminary Injunction and Plaintiffs' Activies (Werth, Kelly) (Entered: 01/24/2006)
56 REPLY to Response to 39 MOTION to Stay re 29 Preliminary Injunction,, 38 Notice of Appeal; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. (Attachments: # 1 Exhibit Exhibits A, B, C, D, E# 2 Exhibit Exhibit F# 3

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 8 of 16

02/10/2006 02/10/2006 02/17/2006
02/22/2006 02/22/2006 02/28/2006
02/28/2006 03/01/2006 03/01/2006 03/13/2006 03/16/2006 03/16/2006 03/17/2006
03/20/2006

Exhibit Exhibit G)(Werth, Kelly) (Entered: 01/24/2006)
57 Joint MOTION to Strike Fugitive Documents by Plaintiff John Witherow. Responses due by 2/28/2006. (Hearne, Treva) (Entered: 02/10/2006)
58 Joint MOTION for Preliminary Injunction Second by Plaintiff John Witherow. (Attachments: # 1 Proposed Order Proposed Order# 2 Exhibit Exhibit)(Hearne, Treva) (Entered: 02/10/2006)
59 ORDER of USCA as to 41 Notice of Appeal, 05−17409 and Notice of Appeal, 05−17406 dtd 2/6/06: These appeals are cross appeals from the district court's order grating preliminary injunction. Appellant unopposed oral motion for a 14 days extension to file opening brief was granted. Clerk shall file appellant's opening brief received on 1/30/06. appellees principal and response brief due 2/24/06; appellant's response and reply brief due 21 days after service of appellee's principal and response brief; and appellees optional reply brief due 14 days after service of appellants' response and reply. The appeal and any motions pending at the time briefing is completed shall be referred to the next available motions panel for disposition. (WJ, ) (Entered: 02/21/2006)
60 STIPULATION and Order to Extend Discovery by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare, Plaintiffs Donald Evans, John Witherow. (Werth, Kelly) (Entered: 02/22/2006)
61 (STIPULATED) SCHEDULING ORDER: Discovery cut off by 6/11/2006. Dispositive Motions due by 7/11/2006. Signed by Judge Robert A. McQuaid Jr. on 2/22/06. (WJ, ) (Entered: 02/24/2006)
62 RESPONSE to 58 Joint MOTION for Preliminary Injunction Second; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Defendants' Opposition to Plaintiffs' Second Motion for Preliminary Injunction or, Alternatively Clarification/ Expansion of Existing Preliminary Injunction (Request for Hearing) (Attachments: # 1 Exhibit s A through J)(Werth, Kelly) (Entered: 02/28/2006)
63 RESPONSE to 57 Joint MOTION to Strike Fugitive Documents; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Replies due by 3/14/2006. (Werth, Kelly) (Entered: 02/28/2006)
64 Joint MOTION for Order to Show Cause by Don York Evans and by Plaintiff John Witherow. (Attachments: # 1 Proposed Order Proposed Order to Show Cause)(Hearne, Treva) (Entered: 03/01/2006)
65 Joint MOTION to Amend/Correct and Joinder of Parties by Plaintiff Don York Evans and by Plaintiff John Witherow. Responses due by 3/19/2006. (Attachments: # 1 Exhibit Proposed Second Amended Complaint)(Hearne, Treva) (Entered: 03/01/2006)
66 REPLY OPPOSITION to motion to strike fugitive documents 57 filed by Plaintiff Donald Evans. (Hearne, Treva) Modified on 4/5/2006 to reflect incorrect PDF attached, also link added to motion; counsel notified. (BLG). (Entered: 03/13/2006)
67 RESPONSE to 64 Joint MOTION for Order to Show Cause by Don York Evans and; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Opposition to Motion for Order to Show Cause and Exhibit A Replies due by 3/30/2006. (Werth, Kelly) (Entered: 03/16/2006)
68 STIPULATION AND ORDER FOR ENLARGEMENT OF TIME by Plaintiff Donald Evans. (Hearne, Treva) (Entered: 03/16/2006)
69 ORDER ON STIPULATION re 68 Stipulation for Enlargement of Time. Plaintiffs shall have to and including 3/20/06 to file their Reply to Opposition to Second Motion for Preliminary Injunction or, Alternatively, Classification/Expansion of Existing Preliminary Injunction. Signed by Judge Robert A. McQuaid Jr.. (HJ, ) (Entered: 03/17/2006)
70 RESPONSE to 65 Joint MOTION to Amend/Correct and Joinder of Parties by Plaintiff Don York Evans and; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Opposition to Motion for Leave to Join Additional Parties and

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 9 of 16

03/21/2006 03/21/2006 03/22/2006 03/27/2006 04/04/2006 04/04/2006 04/07/2006 04/10/2006 04/11/2006
04/12/2006 04/24/2006 04/25/2006 05/11/2006 05/11/2006 05/12/2006

to File Second Amended Complaint Replies due by 4/3/2006. (Werth, Kelly) (Entered: 03/20/2006)
72 REPLY to Response to 58 Joint MOTION for Preliminary Injunction Second; filed by Plaintiffs Donald Evans, John Witherow. (Attachments: # 1 Part 2)(AF, ) (Entered: 03/23/2006)
73 MOTION for Acceptance of Hard Copy of the 72 Reply to Response to Second Motion for Preliminary Injunction, by Plaintiffs Donald Evans, John Witherow. (AF, ) (Entered: 03/23/2006)
71 Third MOTION to Amend/Correct, Second Amended Complaint by Plaintiff John Witherow. Responses due by 4/9/2006. (Attachments: # 1 Second Amended Complaint)(Hearne, Treva) Modified on 9/6/2006 to reflect Second Amended Complaint granted see order 93 . (BLG). (Entered: 03/22/2006)
74 REPLY to Response to 64 Joint MOTION for Order to Show Cause by Don York Evans and; filed by Plaintiff John Witherow. and Don Evans (Hearne, Treva) (Entered: 03/27/2006)
75 ORDER denying 39 Motion to Stay. See attached order. Signed by Judge Edward C. Reed Jr. on 4/4/06. (CLL, ) (Entered: 04/04/2006)
76 ORDER denying 31 Motion Signed by Judge Edward C. Reed Jr. on 4/4/06. See attached order. (CLL, ) (Entered: 04/04/2006)
77 NOTICE by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare Notice of Plaintiffs' Violations of Preliminary Injunction and Plaintiffs' Activities (Attachments: # 1 Exhibit A through D)(Werth, Kelly) (Entered: 04/07/2006)
78 RESPONSE to 71 Third MOTION to Amend/Correct Second Amended Complaint; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Defendants' Opposition to Motion for Leave to Join Additional Parties and to File Second Amended Complaint (Werth, Kelly) (Entered: 04/10/2006)
79 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 4/11/2006. By Deputy Clerk: C. Larsen. RE: 58 Joint MOTION for Preliminary Injunction Second filed by John Witherow, Motion Hearing set for 6/2/2006 10:00 AM in Reno Courtroom 3 before Judge Edward C. Reed Jr.. See attached order (CLL, ) (Entered: 04/11/2006)
80 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 4/12/2006. By Deputy Clerk: C. Larsen. Hearing on motion for preliminary injunction 58 set 6/2/06 is vacated. See attached order (CLL, ) (Entered: 04/12/2006)
81 REPLY to Response to 65 Joint MOTION to Amend/Correct and Joinder of Parties by Plaintiff Don York Evans and; filed by Plaintiff John Witherow. and Don York Evans (Hearne, Treva) (Entered: 04/24/2006)
82 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 4/25/2006. By Deputy Clerk: C. Larsen. RE: 57 Joint MOTION to Strike Fugitive Documents filed by John Witherow, DENIED. See attached order (CLL, ) (Entered: 04/25/2006)
83 MOTION To Depose an Incarcerated Person by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Responses due by 5/29/2006. (Werth, Kelly) (Entered: 05/11/2006)
84 Second MOTION for Order to Show Cause With Exhibits by Plaintiff Donald Evans. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2)(Hearne, Treva) (Entered: 05/11/2006)
85 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 5/12/2006. By Deputy Clerk: C. Larsen. RE: 84 Second MOTION for Order to Show Cause With Exhibits filed by Donald Evans, Responses due by 5/30/2006; reply due 6/13/06. (CLL, ) (Entered: 05/12/2006)

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 10 of 16

05/19/2006 05/26/2006 05/30/2006 06/02/2006 06/19/2006 06/19/2006 06/19/2006 06/19/2006
07/03/2006
08/22/2006 09/05/2006

86 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 5/19/2006. By Deputy Clerk: C. Larsen. RE: 65 Joint MOTION to Amend/Correct and Joinder of Parties by Plaintiff Don York Evans and filed by John Witherow, is DENIED. Response to motion to amend 71 Responses due by 6/5/2006. (CLL, ) (Entered: 05/19/2006)
87 RESPONSE to 84 Second MOTION for Order to Show Cause With Exhibits; filed by Defendants Kelly Balenger, Rosemary Seals, Lenard Vare. Opposition to Second Motion for Order to Show Cause/Request for Attorney Fees (Attachments: # 1 Exhibit A − E)(Werth, Kelly) (Entered: 05/26/2006)
88 NOTICE of Change of Address by Plaintiff John Witherow., has mov'd to Nevada State Prison, P.O. Box 607, Carson City, NV 89702 (SA, ) (Entered: 05/30/2006)
89 ORDER granting 83 Defendants' Motion to Depose. Signed by Judge Robert A. McQuaid Jr. on 6/2/2006. (HJ, ) (Entered: 06/02/2006)
90 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 6/19/2006. By Deputy Clerk: C. Larsen. RE: 58 Joint MOTION for Preliminary Injunction Second filed by John Witherow,, 73 is DENIED, as moot. MOTION for Acceptance of Hard Copy re 72 Reply to Response to Motion filed by Donald Evans,, John Witherow, is also DENIED, as moot. (CLL, ) (Entered: 06/19/2006)
91 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 6/19/2006. tht the Motion for Leave of Court to supplement D's Ps doc # 30 , filed on 12/8/05 is DENIED as moot in light of the court's Ord doc # 29 granting the Preliminary Injunction. (SA, ) (Entered: 06/19/2006)
92 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 6/19/2006. By Deputy Clerk: C. Larsen. RE: 84 Second MOTION for Order to Show Cause With Exhibits filed by Donald Evans, Motion Hearing set for 8/22/2006 10:00 AM in Reno Courtroom 3 before Judge Edward C. Reed Jr.. Motion for order to show cause 64 is denied. (CLL, ) (Entered: 06/19/2006)
93 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 6/19/2006. Ord tht P's Motion for Leave to Join additional ptys &to file 2nd Am Complnt doc #[71−1] filed on 3/22/06 is GRANTED. The 2nd Am Complnt was filed as doc #[71−2]. D's who have previously apppeared in the actn shall hv 20 days w/in which to respond to the 2nd Am Complnt doc #[71−2].The additional ptys shall have 20 days after service of process or admission of service of process, is filed w/in which time to respond to the 2nd Am Cmplnt. FUR ORD tht this matter is referred to the Magistrate Judge to determine whether a new scheduling order is needed in respect to the additional claims set forth in the 2nd am complnt doc # 71 . (SA, ) Modified on 6/20/2006 (SA, ). Added doc #71. (Entered: 06/20/2006)
94 ORDER of USCA as to 41 Notice of Appeal, 05−17409 and 38 Notice of Appeal, 05−17406, dtd 6/30/06: Submission of these cases is withdrawn and deferred until further order of the court, and these cases are referred to the Circuit's Mediation program for 90 days to explore the possibility of resolving the dispute through mediation. A circuit mediator will contact counsel directly to arrange a conference. Questions may be directed to Chief Circuit Mediator David Lombardi at 415 556 9907. The parties shall file a status report before the end of the 90 days period on the status of settlement negotiations. (WJ, ) (Entered: 07/05/2006)
95 MINUTES OF PROCEEDINGS − Show Cause Hearing held on 8/22/2006 before Judge Edward C. Reed Jr.. Crtrm Administrator: C. Larsen; Pla Counsel: R. Hager; Def Counsel: K. Werth; Court Reporter/FTR #: D. Davidson; Time of Hearing: 10:10 AM to 10:20 AM. Motion Hearing set for 10/5/2006 10:00 AM in Reno Courtroom 3 before Judge Edward C. Reed Jr.. (CLL, ) (Entered: 08/22/2006)
96 PROPOSED SUMMONS to be issued on Robert Legrand, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)

Case: 3:05-cv-00327-RAM As of: 11/19/2013 11:31 AM PST 11 of 16

09/05/2006
09/05/2006
09/05/2006
09/05/2006
09/05/2006
09/06/2006 09/06/2006 09/06/2006 09/06/2006 09/06/2006 09/06/2006 09/06/2006 09/12/2006 09/13/2006 09/13/2006
09/13/2006 09/13/2006 09/13/2006 09/14/2006 09/14/2006
10/03/2006

97 PROPOSED SUMMONS to be issued of Craig Farwell, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)
98 PROPOSED SUMMONS to be issued to Glen Whorton, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)
99 PROPOSED SUMMONS to be issued to Jackie Crawford, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)
100 PROPOSED SUMMONS to be issued to Greg Cox, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)
101 PROPOSED SUMMONS to be issued to Cherie Scott, filed by Plaintiff Donald Evans. (Evans, Donald) Modified on 9/6/2006 to reflect SUMMONS ISSUED (BLG). (Entered: 09/05/2006)
102 SUMMONS Issued as to 2nd Amended Complaint 71 Greg Cox. (BLG) (Entered: 09/06/2006)
103 SUMMONS Issued as to 2nd Amended Complaint 71 Jackie Crawford. (BLG) (Entered: 09/06/2006)
104 SUMMONS Issued as to 2nd Amended Complaint 71 Craig Farwell. (BLG) (Entered: 09/06/2006)
105 SUMMONS Issued as to 2nd Amended Complaint 71 Robert LeGrand. (BLG) (Entered: 09/06/2006)
106 SUMMONS Issued as to 2nd Amended Complaint 71 Robert LeGrand. (BLG) (Entered: 09/06/2006)
107 SUMMONS Issued as to 2nd Amended Complaint 71 Cherie Scott. (BLG) (Entered: 09/06/2006)
108 SUMMONS Issued as to 2nd Amended Complaint 71 Glen Whorton. (BLG) (Entered: 09/06/2006)
109 MOTION to Substitute Attorney Substitution of Attorney by Plaintiff Donald Evans. (Evans, Donald). (Entered: 09/12/2006)
110 NOTICE of Appearance by attorney Donald Y Evans on behalf of Plaintiff Donald Evans. (Evans, Donald) (Entered: 09/13/2006)
111 ORDER granting 109 Motion to Substitute Attorney. Attorney Marc P Picker for Donald Evans substituted for Attorney Robert R. Hager. Signed by Judge Robert A. McQuaid Jr. on 9/13/06. (DRM, ) (Entered: 09/13/2006)
112 MOTION to Substitute Attorney by Plaintiff Donald Evans. (Evans, Donald) (Entered: 09/13/2006)
113 MOTION to Substitute Attorney by Plaintiff Donald Evans. (Evans, Donald) (Entered: 09/13/2006)
114 MOTION to Substitute Attorney by Plaintiff Donald Evans. (Evans, Donald) (Entered: 09/13/2006)
115 MOTION to Substitute Attorney by Plaintiff John Witherow. (Evans, Donald) (Entered: 09/14/2006)
116 ORDER tht Marc Picker is substituted as cnsl of rcd for P−John Witherow in place and stead of Robert R. Hager, see ord for spec. Signed by Judge Robert A. McQuaid Jr. on 9/14/06. (JAR, ) (Entered: 09/14/2006)
117 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 10/3/2006. Order DENYING 84 Second MOTION for Order to Show Cause filed by Donald Evans; and, VACATING the hearing set for 10:00

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10/03/2006
11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006 11/01/2006
11/02/2006 11/09/2006
11/09/2006 11/15/2006 11/16/2006

a.m., Thursday, October 5, 2006 by 95 Order;The prelilminary injunction issued in this case will be amended by separate Order.(DRM, ) See Ord for spec. (Entered: 10/03/2006)
118 ORDER AMENDING 29 Preliminary Injunction: Ordered thad Ds are preliminarliy enjoined and restrained from denying P Witherow the receipt or forwarding of legal mail when conditions specified in this order are met. See Order for specifics. Further Ordered the Court retains jurisdiction of all matters relating to this preliminary injunction; Further Ordered that Ds shall provide notice of this injunction to their officers, agents, servants, employees, and attorneys and upon those persons in active concert or participation with any of them or each of them. Further Ordered that posting of security is waived. Signed by Judge Edward C. Reed Jr. on 10/3/06. See Order for specifics. (DRM, ) (Entered: 10/03/2006)
119 WAIVER OF SERVICE Returned Executed by Defendants Robert LeGrand, Robert LeGrand. Robert LeGrand waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
120 WAIVER OF SERVICE Returned Executed by Defendants Craig Farwell, Craig Farwell. Craig Farwell waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
121 WAIVER OF SERVICE Returned Executed by Defendants Glen Whorton, Glen Whorton. Glen Whorton waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
122 WAIVER OF SERVICE Returned Executed by Defendants Jackie Crawford, Jackie Crawford. Jackie Crawford waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
123 WAIVER OF SERVICE Returned Executed by Defendants Greg Cox, Greg Cox. Greg Cox waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
124 WAIVER OF SERVICE Returned Executed by Defendants Cherie Scott, Cherie Scott. Cherie Scott waiver sent on 10/31/2006, answer due 12/30/2006. (Werth, Kelly) (Entered: 11/01/2006)
125 STIPULATION re 93 Minute Order,,, ; Joint Stipulated Discovery Plan and Scheduling Order by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare, Plaintiffs Donald Evans, John Witherow. (Werth, Kelly) (Entered: 11/01/2006)
126 ORDER ON STIPULATION re 125 proposed Stipulation: Discovery due by 2/28/2007. Motions due by 3/30/2007. Proposed Joint Pretrial Order due by 3/30/2007. (see order) Signed by Judge Robert A. McQuaid Jr. on 11/1/06. (WJ, ) (Entered: 11/03/2006)
127 MEMORANDUM/OPINION of USCA as to 41 Notice of Appeal filed by Donald Evans,, 38 Notice of Appeal filed by Kelly Balenger, Lenard Vare,, Rosemary Seals: USDC AFFIRMED in part, REVERSED in part, and REMANDED with instructions. (DRM, ) Additional attachment(s) added on 11/14/2006 (WJ, ). (Entered: 11/13/2006)
128 JUDGMENT of USCA as to 41 Notice of Appeal filed by Donald Evans,, 38 Notice of Appeal filed by Kelly Balenger,, Lenard Vare,, Rosemary Seals: USDC AFFIRMED IN PART, REVERSED IN PART, REMANDED. (DRM, ) (Entered: 11/13/2006)
129 ORDER on Mandate as to 41 Notice of Appeal filed by Donald Evans,, 38 Notice of Appeal by Judge Edward C. Reed Jr. See ord for spec. (DRM, ) (Entered: 11/15/2006)
130 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 11/16/2006. RE: 127 USCA Memorandum/Opinion; 118 Amended Preliminary Injunction: Ordered the parties have 15 days to file points and authorities indicating whether they agree with the form of the attached

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11/20/2006
12/01/2006 12/01/2006 12/18/2006
12/29/2006 12/29/2006
01/02/2007 01/03/2007 01/18/2007 01/22/2007 01/23/2007 02/02/2007 02/28/2007

proposed Second Amended Preliminary Injunction, or whether they object to the same and and basis for such an objection. Thereafter the parties will have 15 days to file responses to the points and authorities filed by opposing counsel. See ord and attached proposed ord for spec. (DRM, ) (Entered: 11/17/2006)
131 MOTION for Leave to File Answer to Second Amended Complaint by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Attachments: # 1 Exhibit A, pages 1−13, Defendants' Answer to Plaintiff's Second Amended Complaint)(Werth, Kelly) (Entered: 11/20/2006)
132 OBJECTION to 130 Minute Order,, ; filed by Plaintiff Donald Evans. (Attachments: # 1 Affidavit of John Witherow# 2 Affidavit of Donald Evans)(Picker, Marc) (Entered: 12/01/2006)
133 OBJECTION To Proposed Second Amended Preliminary Injunction filed by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Werth, Kelly) (Entered: 12/01/2006)
134 RESPONSE to 132 Objection to Document; Defendants' Response to Plaintiffs' Objection to Proposed Second Amended Preliminary Injunction filed by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Werth, Kelly) (Entered: 12/18/2006)
136 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 12/29/2006. By Deputy Clerk: Colleen Larsen. RE: 130 Minute Order: a Second Amended Injuction shall be entered by separate Order. See Ord for spec. (JW, ) (Entered: 01/03/2007)
137 SECOND AMENDED PRELIMINARY INJUNCTION. Ordered that Ds are preliminarliy enjoined and restrained from denying P Witherow the receipt or forwarding of legal mail when conditions specified in this order are met. See Order for specifics. Further Ordered the Court retains jurisdiction of all matters relating to this preliminary injunction; Further Ordered that Ds shall provide notice of this injunction to their officers, agents, servants, employees, and attorneys and upon those persons in active concert or participation with any of them or each of them. Further Ordered that posting of security is waived. Signed by Judge Edward C. Reed Jr. on 12/28/06. See order for spec. (JW ) (Entered: 01/03/2007)
135 ADDENDUM to 132 Objection to Document, 130 Minute Order,, ; Request for Oral Argument by Plaintiff Donald Evans. (Picker, Marc) (Entered: 01/02/2007)
138 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 1/3/2007: DENYING 135 Request for Oral Argument. Cnsl may move for reconsideration of 136 Order and 137 Second Amended Preliminary Injunction by 1/18/07. See ord for add specs. (DRM, ) (Entered: 01/03/2007)
139 MINUTE ORDER IN CHAMBERS of the Honorable Edward C. Reed Jr., U.S. District Judge on 1/18/2007. By Deputy Clerk: C. Larsen. RE: 131 MOTION for Leave to File Answer to Second Amended Complaint is granted. Answer to second amended complaint due by 2/2/2007. (CLL, ) (Entered: 01/18/2007)
140 NOTICE OF APPEAL as to 137 Preliminary Injunction,, by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. Filing fee $ 455, receipt number 460130. (Attachments: # 1 Exhibit A)(Werth, Kelly) (Entered: 01/22/2007)
141 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 140 Notice of Appeal,. (DRM, ) (Entered: 01/23/2007)
142 TRANSMITTAL RETURN of Notice of Appeal from USCA re 140 Notice of Appeal. USCA Case Number 07−15147. (JW ) (Entered: 02/02/2007)
143 First MOTION to Extend Time regarding discovery/non dispositive matter re 125 Stipulation, by Plaintiff Donald Evans. (Picker, Marc) (Entered: 02/28/2007)

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02/28/2007
03/14/2007 03/14/2007
03/15/2007 03/16/2007
03/20/2007 03/28/2007 03/28/2007 04/20/2007 05/04/2007 05/17/2007 05/21/2007 09/21/2007
09/21/2007
11/09/2007

144 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid Jr., U.S. Magistrate Judge on 2/28/2007. P's Mtn to Extend Joint Disc Plan and Sched Order 143 is GRANTED. Discovery due by 6/28/2007. Motions due by 7/28/2007. Proposed Joint Pretrial Order due by 7/28/2007. See order for spec.(JW ) Modified on 3/1/2007 to clarify (JW ). (Entered: 02/28/2007)
145 NOTICE of Change of Attorney on behalf of Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Stewart, Susan) (Entered: 03/14/2007)
146 MOTION to Extend Time regarding discovery/non dispositive matter re 139 Minute Order,, Set/Reset Deadlines &Hearings, by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Attachments: # 1 Exhibit Answer to 2nd Amended Complaint)(Stewart, Susan) (Entered: 03/14/2007)
147 ORDER granting 146 Motion to Extend Time to Answer 71 Second Amended Complaint. Answers due 3/14/07. Signed by Judge Edward C. Reed Jr. on 3/14/07. (JW ) (Entered: 03/15/2007)
148 ANSWER to 71 Complaint Second Amended Complaint by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. Certificate of Interested Parties due by 3/26/2007. Discovery Plan/Scheduling Order due by 4/30/2007.(Stewart, Susan) Modified on 3/19/2007 to add link to complaint (JW ). (Entered: 03/16/2007)
149 CERTIFICATE of Interested Parties by Plaintiff Donald Evans. (Picker, Marc) (Entered: 03/20/2007)
150 MOTION to Take Deposition from Plaintiff John Witherow # 29313 by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Stewart, Susan) (Entered: 03/28/2007)
151 ORDER granting 150 Defendants' Motion for Leave to Depose Incarcerated Person. Signed by Judge Robert A. McQuaid Jr. on 3/28/2007. (HJ, ) (Entered: 03/28/2007)
152 ORDER of USCA as to 140 Notice of Appeal. Notice of withdrawal construed as mtn for voluntary dismissal. Mtn granted. Appeal dismissed. (JW ) (Entered: 04/20/2007)
153 ORDER ON MANDATE as to 140 Notice of Appeal, 152 USCA Order. Signed by Judge Edward C. Reed Jr. on 5/4/07. (JW ) (Entered: 05/07/2007)
154 STIPULATION JOINT STIPULATION TO EXTEND DISCOVERY PLAN by Plaintiff John Witherow. (Picker, Marc) (Entered: 05/17/2007)
155 SCHEDULING ORDER. Discovery due by 9/26/2007. Motions due by 10/26/2007. Proposed Joint Pretrial Order due by 11/26/2007. Signed by Judge Robert A. McQuaid Jr. on 5/21/2007. See ord for spec. (DRM, ) (Entered: 05/21/2007)
156 STIPULATION re 155 Scheduling Order, 146 MOTION to Extend Time regarding discovery/non dispositive matter re 139 Minute Order,, Set/Reset Deadlines &Hearings, MOTION to Extend Time regarding discovery/non dispositive matter re 139 Minute Order,, Set/Reset Deadlines &Hearings,, 125 Stipulation, ; by Plaintiff Donald Evans. (Picker, Marc) (Entered: 09/21/2007)
157 AMENDED SCHEDULING ORDER re 156 Amended Stipulated Discovery Plan and Scheduling Order. Discovery due by 12/28/2007. Motions due by 1/25/2008. Proposed Joint Pretrial Order due by 2/22/2008. THERE SHALL BE NO FURTHER EXTENSIONS GRANTED. Signed by Judge Robert A. McQuaid Jr. on 9/21/2007. (Copies have been distributed pursuant to the NEF − HJ) (Entered: 09/21/2007)
158 MOTION to Substitute Attorney by Plaintiff John Witherow. (JC) (Entered: 11/09/2007)

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11/13/2007 12/17/2007 12/19/2007 01/25/2008 01/25/2008
04/07/2008
04/11/2008 04/11/2008 04/11/2008 04/14/2008

159 ORDER/SUBSTITUTION OF ATTORNEYS re 158 Motion to Substitute Attorney. Attorney Marc P Picker terminated. Plaintiff John Witherow in pro per. Address for John Witherow: John Witherow, #29313, Nevada State Prison, PO Box 607, Carson City, Nevada 89702. Signed by Judge Robert A. McQuaid Jr. on 11/13/2007. (Copies have been distributed pursuant to the NEF − HJ) (Entered: 11/13/2007)
160 MOTION for Settlement Conference and Continuation of Scheduling Order by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. (Attachments: # 1 Declaration of Susan K. Stewart)(Stewart, Susan) (Entered: 12/17/2007)
161 MINUTE ORDER IN CHAMBERS of the Honorable Robert A. McQuaid, Jr., U.S. Magistrate Judge, on 12/19/2007. By Deputy Clerk: Jennifer Cotter. Settlement Conference set for Friday, January 25, 2008 at 09:00 AM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid, Jr. The Deputy Attorney General shall arrange for the incarcerated Plaintiff to be present in person. (See attached) (Copies have been distributed pursuant to the NEF − JC) (Entered: 12/19/2007)
162 ORDER REFERRING CASE to US Magistrate Judge on Consent. Case reassigned to Judge Robert A. McQuaid, Jr for all further proceedings; Edward C. Reed, Jr no longer assigned to case. Signed by Judge Edward C. Reed Jr. on 1/25/2008. (Copies have been distributed pursuant to the NEF − DRM) (Entered: 01/25/2008)
163 MINUTES OF PROCEEDINGS − Settlement Conference held on 1/25/2008 before Judge Robert A. McQuaid, Jr. Crtrm Administrator: Jennifer Cotter; Pla Counsel: John Witherow, In Pro Per and Marc Picker; Def Counsel: Janet Traut and Joe Ward, Jr.; FTR #: 11:36:03 a.m. − 11:40:54 a.m.; Time of Hearing: 9:00 a.m. − 11:40:54 a.m.; Courtroom: 2. The Court met with counsel and the parties to discuss settlement. After some discussions and negotiations, the parties were able to settle the case. The parties orally consent to proceed before the US Magistrate Judge so that he may approve the final settlement documents. Written consent signed by the parties in court to be submitted to Judge Reed for his approval. The terms of the settlement are placed on the record. IT IS ORDERED that the recording of this proceeding is sealed. (no image attached) (Copies have been distributed pursuant to the NEF − JC) (Entered: 01/25/2008)
164 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert A. McQuaid, Jr., on 4/7/2008. By Deputy Clerk: Jennifer Cotter. A Status Conference has been set for Monday, 5/5/2008, at 1:30 PM in Reno Courtroom 2 before Magistrate Judge Robert A. McQuaid, Jr. The Deputy Attorney General shall arrange for the incarcerated Plaintiff to be present by telephone. Said counsel shall contact the courtroom administrator, Jennifer Cotter, at (775) 686−5758, at least two (2) days in advance of the hearing to advise her of the number where the Plaintiff may be reached for the hearing. (no image attached) (Copies have been distributed pursuant to the NEF − JC) (Entered: 04/07/2008)
165 NOTICE of Change of Attorney on behalf of Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare. NOTICE OF APPEARANCE AND CHANGE OF ATTORNEY (Traut, Janet) (Entered: 04/11/2008)
166 STIPULATION of Dismissal STIPULATION FOR DISMISSAL WITH PREJUDICE by Defendants Robert LeGrand, Craig Farwell, Glen Whorton, Jackie Crawford, Greg Cox, Cherie Scott, Kelly Balenger, Rosemary Seals, Lenard Vare, Plaintiffs Donald Evans, John Witherow. (Traut, Janet) (Entered: 04/11/2008)
168 PERMANENT INJUNCTION. Refer to Order for specifics. Signed by Magistrate Judge Robert A. McQuaid, Jr on 4/11/08. (Copies have been distributed pursuant to the NEF − KO) (Entered: 04/14/2008)
167 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert A. McQuaid, Jr., on 4/14/2008. By Deputy Clerk: Jennifer Cotter. A stipulation for dismissal having been filed, the status hearing currently scheduled for Monday, May 5, 2008 at 1:30 p.m. is VACATED. (no image attached) (Copies have been distributed pursuant to the NEF − JC) (Entered: 04/14/2008)

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04/14/2008 12/27/2011
01/03/2012

169 ORDER OF DISMISSAL by Court for Want of Prosecution. 166 Stipulation has been approved and is based upon settlement reached by the parties in this matter. Each party shall bear his own attorney's fees and cost. Signed by Magistrate Judge Robert A. McQuaid, Jr on 4/11/08. (Copies have been distributed pursuant to the NEF − KO) Modified on 4/14/2008 to line through incorrect language used in docket entry. (BLG). (See attached IMAGE.) (Entered: 04/14/2008)
170 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Robert A. McQuaid, Jr, on 12/27/2011. The Court currently has custody of exhibits in this action. It having been determined these exhibits can be returned to the parties in accordance with LR 79−1, IT IS HEREBY ORDERED that the parties have 21 days from the date of this Order within which to claim the exhibits from the Clerk of Court in accordance with said Local Rule or said exhibits shall be destroyed by the Court. Please contact the Clerk's Office in Reno at (775) 686−5800 to make arrangements to have the exhibits picked up or said exhibits shall be destroyed by the Court. Deadline to return exhibits set for 1/17/2012.(no image attached) (Copies have been distributed pursuant to the NEF − DRM) (Entered: 12/27/2011)
171 Mail Returned as Undeliverable (inmate not in custody) re 170 Minute Order for Return of Exhibits, addressed to John Witherow @ NSP. (KO) (Entered: 01/03/2012)

 
 Evans v. Vare, 203 Fed.Appx. 95 (2006)

203 Fed.Appx. 95 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Ninth Circuit Rule 36-3.
(Find CTA9 Rule 36-3) United States Court of Appeals,
Ninth Circuit.
Donald York EVANS; John Witherow, PlaintiffsAppellees, v.
Lenard VARE; Rosemary Seals; Kelly Balenger, Defendants-Appellants.
Donald York Evans; John Witherow, PlaintiffsAppellants, v.
Lenard Vare; Rosemary Seals; Kelly Balenger, Defendants-Appellees.
Nos. 05-17406, 05-17409. | Argued June 13, 2006. | Resubmitted Sept. 27, 2006. | Filed Oct. 13, 2006.

Attorneys and Law Firms

*96 Robert R. Hager, Esq., Hager & Hearne, Reno, NV, for Plaintiffs-Appellants.

Kelly S. Werth, Office of the Nevada Attorney General, Carson City, NV, for Defendants-Appellees.

Appeals from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-05-00327-ECR/ RAMU. Before: SCHROEDER, Chief Judge, GRABER, Circuit Judge, and HOLLAND,*District Judge.

*

The Honorable H. Russel Holland, Senior District

Judge for the United States District Court for the

District of Alaska, sitting by designation.

Opinion

MEMORANDUM**

**

This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit

except as provided by 9th Cir. R. 36-3.

Plaintiffs are a prison inmate (Witherow) and his lawyer (Evans) who correspond with each other. The question for

decision is whether Evans has an unrestricted right to send material to Witherow and, if not, whether the district court’s injunction is appropriately tailored.
Several aspects of this case are not disputed:
• Plaintiffs are not only lawyer and client, but also are personal friends of long standing.
• Additionally, the inmate formerly worked for the lawyer as a legal assistant. (It is disputed whether that business relationship continues today.)
• In his capacity as lawyer, Evans is entitled to send to Witherow “legal mail” insofar as it pertains directly to Witherow’s own legal situation, whether a pending case or a bona fide effort to consider bringing a future case, such as letters discussing Witherow’s legal claims and potential legal claims. The parties agree that Evans also may send to Witherow any regularly published court decisions, laws, and regulations.
The dispute between the parties concerns material that allegedly does not pertain to Witherow’s own cases and unpublished documents that allegedly compromise privacy and security by identifying other individuals.
We need not reach the difficult questions regarding the standard of review to be applied to prison regulations that limit legal mail, because the contested portion of this case deals instead with a prison policy aimed at limiting nonlegal mail, i.e., mail between two friends, one of whom happens *97 to be the other’s lawyer. To the extent that Evans and Witherow are corresponding about a common interest or hobby-which in this case is law, but could just as easily be chess or birdwatching-the prison may limit such correspondence if doing so is related to a legitimate penological interest. See Johnson v. California, 543 U.S. 499, 510, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005) (noting that prison regulations that restrict a prisoner’s First Amendment rights are not unconstitutional if they are reasonably related to legitimate penological interests).
A relationship between friends is not privileged. A friend’s mail does not enjoy Sixth Amendment protection or a presumption of confidentiality. The practical problem in this case is how Defendants may differentiate “legal mail” from a friend’s letters. Plaintiffs’ arguments that (a) any publicly available document (whether or not a published case) must be available to Witherow without redaction and (b) any communication from Evans must be presumed “legal mail,” even in the face of a multi-faceted relationship, are not persuasive. See United States v. Griffin, 440 F.3d 1138, 1140-41 (9th Cir.2006) (recognizing that not all correspondence between a lawyer
1

Evans v. Vare, 203 Fed.Appx. 95 (2006)
and a client are privileged, depending on whether the two have a personal relationship, separate and apart from the lawyer-client relationship), cert. denied, 2006 WL 2066670 (U.S. Oct.2, 2006) (No. 06-5434). So Plaintiffs’ argument that the injunction is too restrictive is rejected.
Defendants argue that the injunction is not broad enough and should limit all public legal documents from Evans to Witherow in which Witherow’s name does not appear or, at the very least, limit all identifying information of other people mentioned in the documents (such as social security numbers and addresses). In part, they argue that the restriction should be expansive because Witherow is impermissibly engaged in a business relationship with Evans as a paralegal. Nev.Rev.Stat. § 209.4615.1(c). But the district court did not clearly err when it concluded that Defendants had failed to show that Witherow is presently

engaged in a “business activity.” Id. Moreover, whether or not a business relationship exists, the prison has a right to restrict mail between an inmate and a friend that could involve potential safety risks.
Accordingly, in view of the evidence of privacy and security concerns, we conclude that Defendants may examine mail from Evans to Witherow and that Evans must, with respect to documents that have not been published, redact the names, social security numbers, addresses and any other identifying information of other persons.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions. The parties shall bear their own costs on appeal.

2