Case 2:11-cv-01761-GMS Document 44 Filed 03/11/12 Page 1 of 19

1 ERNEST GALVAN (CA Bar No. 196065)*
KENNETH M. WALCZAK (CA Bar No. 247389)*
2 ROSEN, BIEN & GALVAN, LLP
315 Montgomery Street, 10th Floor
3 San Francisco, California 94104-1823
Telephone: (415) 433-6830
4 Facsimile: (415) 433-7104
Email:
kwalczak@rbg-law.com

DANIEL J. POCHODA (No. 021979)
ACLU FOUNDATION OF ARIZONA
3707 North 7th Street, Suite 235
Phoenix, Arizona 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
Email: dpochoda@acluaz.org

5
WEBER (NH Bar No. 19942)*
6 LANCE
HUMAN RIGHTS DEFENSE CENTER
O. Box 2420
7 P.
Brattleboro, VT 05303
(802) 579-1309
8 Telephone:
Facsimile: (866) 228-1681

9 Email: lweber@humanrightsdefensecenter.org
10 * Admitted to Practice Pro Hac Vice
11 Attorneys for Plaintiff Prison Legal News
IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13

14 PRISON LEGAL NEWS, a project of the HUMAN

Case No. CV 11-01761-PHX-GMS

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19 PINAL COUNTY, ARIZONA; Sergeant TONYA

FIRST AMENDED COMPLAINT FOR
DAMAGES AND DECLARATORY AND
INJUNCTIVE RELIEF FOR VIOLATIONS
OF 42 U.S.C. § 1983 – FIRST AMENDMENT
FREEDOM OF SPEECH AND FREEDOM OF
THE PRESS AND DUE PROCESS OF LAW –
AND VIOLATIONS OF THE ARIZONA
CONSTITUTION

20

JURY TRIAL DEMANDED

RIGHTS DEFENSE CENTER,
Plaintiff,

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v.
PAUL BABEU, individually and in his official

18 capacity as Sheriff of Pinal County, Arizona;

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[

DELGADO, in her individual and official
capacities; Detention Aide ALYSSA ROMERO, in
her individual capacity; Detention Aide
LAURENDA HENSLEY-SALISBERRY, in her
individual capacity; Detention Aide CHERYL
MCBIRNIE, in her individual capacity; Detention
Aide JOHN JOHNSTON, in his individual
capacity; Detention Aide LAUREN MCVICKER,
in her individual capacity; LORETTA VALDEZ, in
her individual capacity; DALTON GAY, in his
individual capacity; ERICA CHAVEZ, in her
individual capacity; DENA KELLY, in her
individual capacity; Sergeant AMADO
MARTINEZ, in his individual and official
capacities; Sergeant LEONARD ARNOLD, in his
individual and official capacities; Training

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1 Specialist DAVID LINDERHOLM, in his
individual and official capacities; Lieutenant

2 FRANCES HAWKINS, in her individual and
3 official capacities; Lieutenant DENNIS RUSHING,
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in his individual and official capacities; Lieutenant
MATTHEW HULL, in his individual and official
capacities; Lieutenant DARREN RUSHING, in his
individual and official capacities; Lieutenant
VERNITA GANT, in her individual and official
capacities; Lieutenant MICHELE MCNEELY. in
her individual and official capacities; Lieutenant
GILBERT HOYOS, in his individual and official
capacities; Captain TERRY JOHNSON, in his
individual and official capacities; Captain JAYME
VALENZUELA, in his individual and official
capacities; Captain RUBEN MONTAÑO, in his
individual and official capacities; and Deputy Chief
JAMES KIMBLE, in his individual and official
capacities,

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Defendants.

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[

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1

COMES NOW Plaintiff PRISON LEGAL NEWS, a project of the Washington

2 nonprofit corporation HUMAN RIGHTS DEFENSE CENTER, and for its complaint
3 against Defendants PAUL BABEU, individually and in his official capacity as Sheriff of
4 Pinal County; PINAL COUNTY; Sergeant TONYA DELGADO, in her individual and
5 official capacities; Detention Aide ALYSSA ROMERO, in her individual capacity;
6 Detention Aide LAURENDA HENSLEY-SALISBERRY, in her individual capacity;
7 Detention Aide CHERYL MCBIRNIE, in her individual capacity; Detention Aide JOHN
8 JOHNSTON, in his individual capacity; Detention Aide LAUREN MCVICKER, in her
9 individual capacity; LORETTA VALDEZ, in her individual capacity; DALTON GAY, in
10 his individual capacity; ERICA CHAVEZ, in her individual capacity; DENA KELLY, in
11 her individual capacity; Sergeant AMADO MARTINEZ, in his individual and official
12 capacities; Sergeant LEONARD ARNOLD, in his individual and official capacities;
13 Training Specialist DAVID LINDERHOLM, in his individual and official capacities;
14 Lieutenant FRANCES HAWKINS, in her individual and official capacities; Lieutenant
15 DENNIS RUSHING, in his individual and official capacities; Lieutenant MATTHEW
16 HULL, in his individual and official capacities; Lieutenant DARREN RUSHING, in his
17 individual and official capacities; Lieutenant VERNITA GANT, in her individual and
18 official capacities; Lieutenant MICHELE MCNEELY. in her individual and official
19 capacities; Lieutenant GILBERT HOYOS, in his individual and official capacities;
20 Captain TERRY JOHNSON, in his individual and official capacities; Captain JAYME
21 VALENZUELA, in his individual and official capacities; Captain RUBEN MONTAÑO,
22 in his individual and official capacities; and Deputy Chief JAMES KIMBLE, in his
23 individual and official capacities, alleges as follows:
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25

INTRODUCTORY STATEMENT
1.

Plaintiff PRISON LEGAL NEWS (“PLN”), a project of the Washington

26 nonprofit HUMAN RIGHTS DEFENSE CENTER (“HRDC”), brings this action pursuant
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1 to 42 U.S.C. § 1983 (“Section 1983”) and the Arizona Constitution, to redress the harm
2 caused by Defendants’ censorship of its monthly publication and correspondence mailed to
3 Pinal County prisoners.
4

2.

Defendants have adopted and implemented mail policies and practices that

5 unconstitutionally restrict the right to free expression held by PLN and its subscribers, and
6 protected by the United States and Arizona Constitutions. Defendants have adopted and
7 implemented mail policies and practices that unconstitutionally prohibit delivery to
8 prisoners of all magazines, hardcover books, and letters of more than one page in length.
9

3.

On dozens of occasions, Defendants have prohibited subscribers and

10 correspondents from receiving mail sent by PLN. Defendants have undertaken this blanket
11 suppression of speech without any reference to or justification in, safety concerns or any
12 other correctional necessity.
13

4.

Defendants’ policies and practices do not provide constitutionally adequate

14 due process protections to senders of mail, such as notice of the Defendants’ decision to
15 censor mail and an opportunity to challenge the censorship.
16

5.

Defendants’ actions therefore violate PLN’s rights to freedom of speech,

17 freedom of the press and freedom of association under the First Amendment and its right
18 to due process of law and equal protection under the Fourteenth Amendment to the United
19 States Constitution, and PLN’s rights under Article II, Sections 4 and 6 of the Arizona
20 Constitution. Plaintiff seeks damages in an amount to be proved at trial, and injunctive
21 and declaratory relief, pursuant to 42 U.S.C. § 1983.
22

DEMAND FOR JURY TRIAL

23

6.

Plaintiff respectfully demands a jury trial on all causes of action set forth

24 herein.
JURISDICTION AND VENUE

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7.

This action arises under 42 U.S.C. § 1983, which provides for recovery of

damages for violations of the First and Fourteenth Amendments to the United States
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1 Constitution, and under the Arizona Constitution. This Court has jurisdiction, including
2 diversity jurisdiction, over this action under 28 U.S.C. §§ 1331, 1332 and 1343. This
3 Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C.
4 § 1367. This Court is authorized to grant declaratory relief pursuant to 28 U.S.C. §§2201
5 and 2202 and Fed. R. Civ. P. 57, and is further empowered to grant injunctive relief
6 pursuant to Fed. R. Civ. P. 65.
7

8.

Venue is proper in the District of Arizona under 28 U.S.C. § 1391(b) because

8 the Defendants reside in and a substantial part of the events complained of occurred in this
9 District.
PARTIES

10
9.

Plaintiff PRISON LEGAL NEWS is a project of the Human Rights Defense

11
Center, a Washington non-profit corporation.
12
10.

For the past 21 years, the core of PLN’s mission has been public education,

13
advocacy and outreach in support of the rights of prisoners and in furtherance of basic
14
human rights. PLN maintains a website, operates an email list, publishes and distributes
15
books about the criminal justice system and legal issues affecting prisoners, and publishes
16
and distributes a monthly journal of corrections news and analysis, Prison Legal News, to
17
prisoners, lawyers, courts, libraries, and the public throughout the country. Prisoners, their
18
family, friends and advocates are among the intended beneficiaries of PLN’s activities.
19
11.

Defendant PINAL COUNTY is a municipal corporation formed under the

20
laws of the State of Arizona.
21
12.

Defendant PAUL BABEU is the Sheriff of Pinal County. Sheriff Babeu is

22
employed by and is an agent of Pinal County and the Pinal County Sheriff’s Department.
23
As the Sheriff, he is the final decision maker for Pinal County for jail operations, practices,
24
and policies. He is sued in his individual and official capacities and was acting under color
25
of state law at all times relevant hereto.
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1

13.

Defendant Sergeant TONYA DELGADO is employed by the Pinal County

2 Sheriff’s Department at Pinal County Jail. From January 2006 to the present, her duties
3 have included handing or processing mail, and deciding whether or not to deliver incoming
4 mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has returned
5 to sender or refused to deliver books, magazines, and/or letters sent to detainees by Prison
6 Legal News, and decided to prohibit delivery of Prison Legal News publications from the
7 Jail. She has also been responsible for training and supervising Pinal County Jail staff in
8 handling and processing inmate mail. She is sued in her individual and official capacities
9 and was acting under color of state law at all times relevant hereto.
10

14.

Defendant Detention Aide ALYSSA ROMERO is employed by the Pinal

11 County Sheriff’s Department at Pinal County Jail. From April 2010 to the present, her
12 duties have included handing or processing mail, and deciding whether or not to deliver
13 incoming mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has
14 returned to sender or refused to deliver books, magazines, and/or letters sent to detainees
15 by Prison Legal News, and decided to prohibit delivery of Prison Legal News publications
16 from the Jail. She is sued in her individual capacity, for actions under color of state law.
17

15.

Defendant Detention Aide LAURENDA HENSLEY-SALISBERRY is or

18 was employed by the Pinal County Sheriff’s Department at Pinal County Jail. From April
19 2007 to January 2012, her duties included handing or processing mail, and deciding
20 whether or not to deliver incoming mail, addressed to detainees at Pinal County Jail.
21 Pursuant to her duties, she has returned to sender or refused to deliver books, magazines,
22 and/or letters sent to detainees by Prison Legal News, and decided to prohibit delivery of
23 Prison Legal News publications from the Jail. She is sued in her individual capacity, for
24 actions under color of state law.
25

16.

Defendant Detention Aide CHERYL MCBIRNIE is employed by the Pinal

26 County Sheriff’s Department at Pinal County Jail. From May 2006 to the present, her
27 duties have included handing or processing mail, and deciding whether or not to deliver
4
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1 incoming mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has
2 returned to sender or refused to deliver books, magazines, and/or letters sent to detainees
3 by Prison Legal News, and decided to prohibit delivery of Prison Legal News publications
4 from the Jail. She is sued in her individual capacity, for actions under color of state law.
5

17.

Defendant Detention Aide JOHN JOHNSTON is employed by the Pinal

6 County Sheriff’s Department at Pinal County Jail. From December 2011 to the present,
7 his duties have included handing or processing mail, and deciding whether or not to deliver
8 incoming mail, addressed to detainees at Pinal County Jail. He is sued in his individual
9 capacity, for actions under color of state law.
10

18.

Defendant Detention Aide LAUREN MCVICKER is employed by the Pinal

11 County Sheriff’s Department at Pinal County Jail. From December 2011 to the present,
12 her duties have included handing or processing mail, and deciding whether or not to
13 deliver incoming mail, addressed to detainees at Pinal County Jail. She is sued in her
14 individual capacity, for actions under color of state law.
15

19.

Defendant LORETTA VALDEZ is employed by the Pinal County Sheriff’s

16 Department at Pinal County Jail. From September 2011 to the present, her duties have
17 included handing or processing mail, and deciding whether or not to deliver incoming
18 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,
19 for actions under color of state law.
20

20.

Defendant DALTON GAY is employed by the Pinal County Sheriff’s

21 Department at Pinal County Jail. From December 2011 to the present, his duties have
22 included handing or processing mail, and deciding whether or not to deliver incoming
23 mail, addressed to detainees at Pinal County Jail. He is sued in his individual capacity, for
24 actions under color of state law.
25

21.

Defendant ERICA CHAVEZ is employed by the Pinal County Sheriff’s

26 Department at Pinal County Jail. From December 2011 to the present, her duties have
27 included handing or processing mail, and deciding whether or not to deliver incoming
5
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1 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,
2 for actions under color of state law.
3

22.

Defendant DENA KELLY is employed by the Pinal County Sheriff’s

4 Department at Pinal County Jail. From December 2011 to the present, her duties have
5 included handing or processing mail, and deciding whether or not to deliver incoming
6 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,
7 for actions under color of state law.
8

23.

Defendant Sergeant AMADO MARTINEZ was employed by the Pinal

9 County Sheriff’s Department at Pinal County Jail, during times relevant to this Complaint.
10 His responsibilities included training Pinal County Jail staff in handling and processing
11 inmate mail. He is sued in his individual and official capacities and was acting under color
12 of state law at all times relevant hereto.
13

24.

Defendant Sergeant LEONARD ARNOLD is employed by the Pinal County

14 Sheriff’s Department at Pinal County Jail. From December 2011 to the present, his duties
15 have included deciding whether or not to deliver incoming mail addressed to detainees at
16 Pinal County Jail. He has been responsible for training and supervising Pinal County Jail
17 staff in handling and processing inmate mail. He is sued in his individual and official
18 capacities and was acting under color of state law at all times relevant hereto.
19

25.

Defendant Training Specialist DAVID LINDERHOLM is employed by the

20 Pinal County Sheriff’s Department. He has been responsible for training Pinal County Jail
21 staff in handling and processing inmate mail. He is sued in his individual and official
22 capacities and was acting under color of state law at all times relevant hereto.
23

26.

Defendant Lieutenant FRANCES HAWKINS is employed by the Pinal

24 County Sheriff’s Department. She has been responsible for training Pinal County Jail staff
25 in handling and processing inmate mail. She is sued in her individual and official
26 capacities and was acting under color of state law at all times relevant hereto.
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1

27.

Defendant Lieutenant DENNIS RUSHING is employed by the Pinal County

2 Sheriff’s Department. He has been responsible for training Pinal County Jail staff in
3 handling and processing inmate mail. He is sued in his individual and official capacities
4 and was acting under color of state law at all times relevant hereto.
5

28.

Defendant Lieutenant MATTHEW HULL is employed by the Pinal County

6 Sheriff’s Department. He has been responsible for training Pinal County Jail staff in
7 handling and processing inmate mail. He is sued in his individual and official capacities
8 and was acting under color of state law at all times relevant hereto.
9

29.

Defendant Lieutenant DARREN RUSHING is employed by the Pinal

10 County Sheriff’s Department. He has been responsible for training Pinal County Jail staff
11 in handling and processing inmate mail. He is sued in his individual and official capacities
12 and was acting under color of state law at all times relevant hereto.
13

30.

Defendant Lieutenant VERNITA GANT is employed by the Pinal County

14 Sheriff’s Department. She has been responsible for training Pinal County Jail staff in
15 handling and processing inmate mail. She is sued in her individual and official capacities
16 and was acting under color of state law at all times relevant hereto.
17

31.

Defendant Lieutenant MICHELE MCNEELY is employed by the Pinal

18 County Sheriff’s Department. She has been responsible for training Pinal County Jail staff
19 in handling and processing inmate mail. She is sued in her individual and official
20 capacities and was acting under color of state law at all times relevant hereto.
21

32.

Defendant Lieutenant GILBERT HOYOS is employed by the Pinal County

22 Sheriff’s Department at Pinal County Jail. From December 2011 to the present, his duties
23 have included deciding whether or not to deliver incoming mail addressed to detainees at
24 Pinal County Jail. He has also been responsible for training and supervising Pinal County
25 Jail staff in handling and processing inmate mail. He is sued in his individual and official
26 capacities and was acting under color of state law at all times relevant hereto.
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1

33.

Defendant Captain TERRY JOHNSON is employed by the Pinal County

2 Sheriff’s Department at Pinal County Jail. From March 2009 to the present, his duties
3 have included deciding whether or not to deliver incoming mail addressed to detainees at
4 Pinal County Jail. He has also been responsible for training Pinal County Jail staff in
5 handling and processing inmate mail. He is sued in his individual and official capacities
6 and was acting under color of state law at all times relevant hereto.
7

34.

Defendant Captain JAYME VALENZUELA is employed by the Pinal

8 County Sheriff’s Department at Pinal County Jail. From January 2009 to the present, his
9 duties have included deciding whether or not to deliver incoming mail addressed to
10 detainees at Pinal County Jail. He has also been responsible for training and supervising
11 Pinal County Jail staff in handling and processing inmate mail. He is sued in individual
12 and official capacities and was acting under color of state law at all times relevant hereto.
13

35.

Defendant Captain RUBEN MONTAÑO is employed by the Pinal County

14 Sheriff’s Department at Pinal County Jail. From August 2009 to the present, his duties
15 have included deciding whether or not to deliver incoming mail addressed to detainees at
16 Pinal County Jail. He has also been responsible for training Pinal County Jail staff in
17 handling and processing inmate mail. He is sued in his individual and official capacities
18 and was acting under color of state law at all times relevant hereto.
19

36.

Defendant Deputy Chief JAMES KIMBLE is employed by the Pinal County

20 Sheriff’s Department at Pinal County Jail. From January 2009 to the present, his duties
21 have included deciding whether or not to deliver incoming mail addressed to detainees at
22 Pinal County Jail. He has also been responsible for training and supervising Pinal County
23 Jail staff in handling and processing inmate mail. He is sued in his individual and official
24 capacities and was acting under color of state law at all times relevant hereto.
25
26

FACTUAL ALLEGATIONS
37.

Prison Legal News (“PLN”) publishes and distributes Prison Legal News, a

27 monthly journal of corrections news and analysis regarding prisoners’ rights, court rulings,
8
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1 management of prison and jail facilities and conditions of confinement. PLN also
2 distributes books about the criminal justice system and legal issues affecting prisoners.
3

38.

PLN engages in core protected political speech and expressive conduct on

4 matters of public concern.
5

39.

PLN has approximately 7,000 subscribers throughout the United States and

6 abroad, including prisoners, pre-trial detainees, attorneys, journalists, public libraries,
7 judges, and other members of the public.
8

40.

Defendants have written, instituted and implemented policies at the Pinal

9 County Jail that prohibit delivery to prisoners of all magazines, hardcover books, and
10 letters of more than one page.
11

41.

As of August 18, 2011, the Frequently Asked Questions page of the Pinal

12 County Jail website reads, in pertinent part:
13

How do I send mail to an inmate?

14

You may send post cards no larger than 5X7 mailed via United States Postal

15

Service Only.

16

…

17

Magazines of any kind or hard cover books are not permitted, however

18

paperback books (limited to 3) may be sent via a publisher or publishing

19

company only using the address listed.

20 See
21 http://pinalcountyaz.gov/DEPARTMENTS/SHERIFF/ADULTDETENTIONCENTER/Pa
22 ges/FAQ.aspx#2008-02-26%2009:33:53 (last accessed 8/18/11).
23

19.

Pursuant to this and other policies, Defendants have improperly and illegally

24 censored PLN’s publications, books, brochures, and other correspondence sent to prisoners
25 at the Pinal County Jail. Defendants have improperly and illegally refused to deliver
26 paperback copies of the publication Protecting your Health and Safety, sent by PLN to
27 prisoners at the Pinal County Jail.
28

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1

20.

Since at least February 2011 and continuing to the present day, Defendants

2 have censored at least three different types of publications distributed by PLN: the monthly
3 publication Prison Legal News and subscription notices for said publication; PLN’s
4 “Informational Brochure Pack” and individual brochures contained therein (including a
5 Prison Legal News Brochure and Subscription Order Form, a Book List, and an
6 Educational Courses Brochure); and the paperback book Protecting Your Health and
7 Safety. The censorship took the form of failing to deliver the mailed material to the
8 addressee.
9

(a)

Prison Legal News: This is PLN’s monthly journal of corrections

10 news and analysis regarding prisoners’ rights, court rulings, management of prison and jail
11 facilities and conditions of confinement.
12

(b)

Informational Brochure Pack: This includes 3 items: (1) a Prison

13 Legal News subscription order form and brochure about the topics covered in PLN’s
14 monthly magazine and a description of three books available for purchase or included with
15 a subscription (Protecting Your Health & Safety, With Liberty for Some: 500 Years of
16 Imprisonment in America, and Prison Profiteers: Who Makes Money from Mass
17 Incarceration); (2) a book list including a description of 42 dictionaries, resource materials
18 and books available for purchase, with information about a variety of topics, including: the
19 basic health and safety rights of prisoners, the criminal justice system, finding the right
20 lawyer, DNA testing, issues related to imprisoned women, self-representation in court,
21 developing a successful re-entry plan upon release from prison, searching for a job, crime
22 and poverty, and the mental health crisis in U.S. prisons and jails; and (3) an educational
23 courses brochure including detailed information about and an order form for a book on
24 high school, vocational, paralegal, undergraduate, and graduate courses available through
25 correspondence study, as well as detailed information about and an order form for a book
26 on ineffective assistance of counsel and habeas corpus litigation.
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1

(c)

Protecting Your Health and Safety: This book, published by the

2 Southern Poverty Law Center and distributed by PLN, is an easy to read, plain language
3 guide prisoners can use to identify and litigate federal civil rights claims against prison
4 officials. Despite the language on the Pinal County Jail website suggesting that paperback
5 books may be sent, Defendants prohibited delivery of the paperback edition of this book
6 on numerous occasions.
7

21.

As described below, Defendants have censored materials from PLN on at

8 least 65 occasions from February 2011 to the present.
9

22.

The methods by which Defendants have censored PLN publications being

10 sent to prisoners held in custody in the Pinal County Jail (“Jail”) include refusing to deliver
11 said items to the prisoners and/or returning items to PLN’s offices via the Return To
12 Sender (“RTS”) service of the United States Postal Service.
13

23.

When Defendants have censored and returned PLN’s mailings, Defendants

14 have often have often drawn a red line through the addressee information on the mailings,
15 marking the outside of various items with red pen notations of “RTS,” and writing the
16 words “NOT ALLOWED,” “ONLY 1 PAGE LETTERS ALLOWED,” or “NOT FROM
17 AN APPROVED PUBLISHER” near the recipient’s address.
18

24.

From February to June 2011, PLN sent a sample issue of Prison Legal News,

19 in a manila envelope via first-class mail, to each of more than 60 prisoners. During the
20 same period, PLN sent the same prisoners copies of the informational brochure pack,
21 under separate cover in a standard #10 sized envelope via first-class mail. During the same
22 period, PLN sent the same prisoners a new copy of the paperback book Protecting Your
23 Health & Safety via Media Mail. All items were addressed to specific, individual inmates
24 using the format:
25

[Inmate Name] [Inmate Number]

26

Pinal County Jail

27

P.O. Box 2610

28

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1

Florence, AZ 85132

2 All items bore a return address of:
3

Prison Legal News

4

PO Box 2420

5

W. Brattleboro, VT 05303.

6

25.

Beginning in February 2011 and monthly thereafter, PLN has sent current

7 issues of Prison Legal News directly from its printer addressed individually to several
8 individual prisoners in Defendants’ custody.
9

26.

As a result of Defendants’ policies and practices, this mail was not received

10 by its intended recipients at the Pinal County Jail.
11

27.

In April and June 2011, counsel for PLN sent single-page letters to more

12 than 60 prisoners in Defendants’ custody, listing the items that had been mailed under
13 separate cover, and asking “for confirmation of your receipt of these three (3) items which
14 have all been mailed separately. … If you have not received all three of the items
15 mentioned above within the next few weeks, please write to us and let us know.”
16

28.

At least 7 of these prisoners wrote back via postcards, to say that they had

17 not received any correspondence other than the letter from PLN’s counsel. No letters or
18 postcards were received from any prisoner in Pinal County Jail confirming his or her
19 receipt of a sample issue of Prison Legal News, the informational brochure pack, or
20 Protecting Your Health and Safety.
21

29.

To date, PLN has received returns of at least: 50 issues of Prison Legal News

22 marked “RTS not allowed” or “Refused”; 31 paperback copies of Protecting Your Health
23 and Safety marked “RTS” or “RTS not allowed” or “RTS not from an approved
24 publisher”; 29 envelopes containing the informational brochure pack, marked “RTS only 1
25 page letters allowed” or “RTS not allowed” or “RTS only a 1 page letter allowed;” and 17
26 letters related to subscription renewal or cancellations, marked “RTS not allowed.”
27
28

12
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1

30.

Defendants did not provide Plaintiff with constitutionally adequate notice

2 nor with any opportunity to appeal the decision to censor or exclude any of its
3 correspondence or publications.
4

31.

Defendants’ conduct prohibiting PLN from mailing its publications,

5 informational brochures, books, and subscription renewal letters to prisoners confined at
6 the Jail violates the First Amendment by censoring these expressive activities and has a
7 chilling effect on future speech and expression directed at prisoners confined there.
8

32.

Defendants’ policy governing incoming mail does not provide notice or an

9 opportunity for the sender or the intended recipient to appeal the Jail’s censorship
10 decisions.
11

33.

In adopting and implementing the above censorship policies, Defendants

12 have knowingly violated, continue to violate, and are reasonably expected to violate in the
13 future, PLN’s constitutional rights, and have caused PLN serious and irreparable harm
14 including, but not limited to: suppression of its political message, frustration of its
15 organizational mission, lost ability to recruit new supporters, subscribers and writers, lost
16 subscriptions, lost opportunities for purchases and sales of its publications, lost
17 opportunities for book sales, and diversion of its resources. Absent intervention by this
18 Court these actions will continue and PLN will be subjected to the same irreparable and
19 serious injuries.
20

34.

The above violations of PLN’s rights and the harms to PLN were caused by

21 mail and censorship policies adopted or approved by Defendant BABEU in his capacity as
22 Sheriff of Pinal County.
23

35.

The individual Defendants named herein are responsible for, or personally

24 participated in, creating and implementing these unconstitutional mail and censorship
25 policies, practices, and customs, and for training and supervising the mail staff at the Pinal
26 County Jail who carry out these policies and whose conduct has injured and continues to
27 injure PLN.
28

13
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1

36.

Defendants’ unconstitutional policy, practices, and customs are ongoing and

2 continue to violate PLN’s rights, and as such PLN has no adequate remedy at law.
3

37.

PLN is entitled to injunctive relief prohibiting Defendants from refusing to

4 deliver or refusing to allow delivery of publications, books, informational brochures and
5 catalogs, and other correspondence from Prison Legal News, and prohibiting Defendants
6 from censoring mail without due process of law.
7

CLAIMS FOR RELIEF

8

FIRST CLAIM FOR RELIEF
(For Violations of the First Amendment, As Incorporated
Through the Fourteenth Amendment, Under Color Of
State Law – Free Speech; Section 1983)

9
10
11
12
13
14
15
16
17
18

38.

Plaintiff realleges and incorporates by reference the preceding paragraphs.

39.

The acts described above constitute violations of Plaintiff’s rights to freedom

of the press, to freedom of speech, and Plaintiff’s right to be free of government
censorship, under the First Amendment to the United States Constitution through 42
U.S.C. § 1983, and have caused damages to Plaintiff, and will continue to cause damage.
40.

Plaintiff seeks declaratory and injunctive relief and compensatory damages

against all Defendants. Plaintiff also seeks punitive damages solely against the individual
Defendants.
SECOND CLAIM FOR RELIEF
(For Violations of Article 2, Section 6 of the Arizona
Constitution Under Color of State Law)

19
20

41.

Plaintiff realleges and incorporates by reference the preceding paragraphs.

21

42.

The censorship policies and practices complained of herein violate Plaintiff’s

22 right to freedom of expression as guaranteed by Article 2, Section 6 of the Arizona
23 Constitution.
24

43.

To remedy these violations of Plaintiff’s constitutional rights, and to ensure

25 that such violations do not recur, Plaintiff seeks declaratory and injunctive relief against all
26 Defendants.
27
28

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FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
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THIRD CLAIM FOR RELIEF
(For Violations of Fourteenth Amendment Due Process
Clause Under Color of State Law, Actionable Through 42
U.S.C. § 1983)

1
2
3

44.

Plaintiff realleges and incorporates by reference the preceding paragraphs.

4

45.

By failing to give Plaintiff sufficient notice of the censorship of its

5 publications, and an opportunity to be heard with respect to that censorship, Defendants
6 have deprived and continue to deprive Plaintiff of liberty and property without due process
7 of law, in violation of the Fourteenth Amendment to the United States Constitution
8 through 42 U.S.C. § 1983.
9

46.

As a direct and proximate result of Defendants’ conduct in violation of

10 Plaintiff’s rights as set forth above, Plaintiff has suffered, and continues to suffer,
11 damages.
FOURTH CLAIM FOR RELIEF
(For Violations of the Due Process Clause in Article 2,
Section 4 of the Arizona Constitution)

12
13
47.

Plaintiff realleges and incorporates by reference the preceding paragraphs.

48.

By failing to give Plaintiff sufficient notice of the censorship of its

14
15
publications, and an opportunity to be heard with respect to that censorship, Defendants
16
have deprived and continue to deprive Plaintiff of liberty and property without due process
17
of law, in violation of the Article 2, Section 4 of the Arizona Constitution.
18
49.

To remedy these violations of Plaintiff’s constitutional rights, and to ensure

19
that such violations do not recur, Plaintiff seeks declaratory and injunctive relief against all
20
Defendants.
21
DAMAGES

22
23
24
25
26
27
28

50.

Plaintiff realleges and incorporates by reference the preceding paragraphs.

Paragraphs 51 and 52 below refer only to Plaintiff’s claims under the United States
Constitution and 42 U.S.C. § 1983, i.e., Plaintiff’s First and Third Claims for Relief.
51.

As a direct and proximate result of the infringement of Plaintiff’s rights in

each of the above claims for relief, Plaintiff sustained and continues to sustain substantial
15
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1 injuries including but not limited to: suppression of its political message, frustration of its
2 organizational mission, lost ability to recruit new supporters, subscribers and writers,
3 diversion of resources, lost business income, lost business goodwill, and a chilling effect
4 on future exercise of Plaintiff’s rights. Plaintiff is entitled to compensation for the harms
5 resulting from the unconstitutional and illegal acts by Defendants.
6

52.

As set forth above, the individual Defendants’ actions demonstrated a

7 reckless disregard for the rights and interests of Plaintiff. On information and belief,
8 Defendants will continue to act in this manner absent legal deterrents. Exemplary damages
9 are required as punishment and to deter Defendants from repeating these harmful and
10 illegal acts in the future.
11
12

PRAYER FOR RELIEF
The conduct previously alleged, unless and until enjoined by order of this Court,

13 will cause great and irreparable injury to Plaintiff. Further, a judicial declaration is
14 necessary and appropriate at this time so that all parties may know their respective rights
15 and act accordingly.
16 WHEREFORE, Plaintiff prays for judgment as follows:
17

1.

A declaration that Defendants’ policies, practices, and customs violate the

18 United States and Arizona Constitutions as set forth herein;
19

2.

A preliminary and permanent injunction preventing Defendants and their

20 employees, agents, and any and all persons acting in concert with them from continuing to
21 violate the United States and Arizona Constitutions;
22

3.

An order awarding compensatory and punitive damages in amounts to be

23 proven at trial for each incident that violated Plaintiff’s rights under the United States
24 Constitution, as actionable under 42 U.S.C. § 1983;
25

4.

An order awarding Plaintiff its reasonable attorney’s fees, litigation expenses

26 and costs under 42 U.S.C. § 1988, under the Arizona private attorney general doctrine, as
27
28

16
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

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1 recognized in Arnold v. Arizona Dept. of Health Services, 775 P.2d 521 (Ariz. 1989), and
2 any other applicable law; and
3

5.

Such other relief as the Court deems just and proper.

4

PLAINTIFF DEMANDS A JURY TRIAL.

5 DATED: March 11, 2012
6
7

Respectfully submitted,
By s/ Kenneth Walczak

8

Kenneth M. Walczak
ROSEN, BIEN & GALVAN, LLP

9

Attorneys for Plaintiff Prison Legal News

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

17
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS

[609875-1]

.