Prison Legal News v. Sheriff Cox (NV DOC), Motion for an Order to Show Cause Why Defendants Should Not Be Held in Contempt 2013

Download original document:
Brief thumbnail

This text is machine-read, and may contain errors. Check the original document to verify accuracy.

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 1 of 16

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Staci Pratt
Nevada Bar No. 12630
pratt@aclunv.org
Allen Lichtenstein
Nevada Bar No. 3992
allenaclunv@lvcoxmail.com
American Civil Liberties Union
601 S. Rancho Dr., Suite B-11
Las Vegas, NV 89106
Lance Weber
Missouri State Bar No.49055
lweber@humanrightsdefensecenter.org
Human Rights Defense Center
General Counsel & Litigation Director
PO Box 1151
Lake Worth, FL 33460
(Pro Hac Pending)
Ernest Galvan
California Bar No. 196065
EGalvan@rbgg.com
Rosen Bien Galvan & Grunfeld
315 Montogomery Street, 10th Floor
San Francisco, CA 94104
(Pro Hac Pending)
Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

20
21
22
23
24
25
26
27
28

PRISON LEGAL NEWS, a project of the HUMAN RIGHTS
DEFENSE CENTER, a Washington Nonprofit Corporation
PAUL WRIGHT (current publisher of Prison Legal News),
Plaintiffs,
v.

PLAINTIFFS’ MOTION FOR AN
ORDER TO SHOW CAUSE WHY
DEFENDANTS SHOULD NOT BE
HELD IN CONTEMPT

JACKIE CRAWFORD in her official capacity as the
former director of NDOC, JOHN SLANSKY(deceased),
in his official and individual capacities as former
CASE NO. 3:00-cv-00373-HDM-RAM
assistant director of NDOC, ROBERT BAYER, in his
official and individual capacities as the former Director
of NDOC, DOES I-XXV, Defendant RED AND
WHITE CORPORATIONS I-X, and BLACK AND
BLUE STATE and/or MUNICIPAL ENTITIES I-X,
Defendants.

- 1Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 2 of 16

Comes now Plaintiff by and through the undersigned attorneys, and hereby respectfully

moves that this court enter an order to show cause why Defendants should not be held in contempt

for their willful failure to comply with this court’s judgment and order. This Motion is based on

all pleadings and papers on file herein and the Memorandum of Points and Authorities attached

hereto and any further argument and evidence as may be presented at a hearing.

6
7
8

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION

On or about September 22, 2000, this Court ordered defendants to cease blanket

censorship of inmate publications and to implement and maintain the attached articulated policy

regarding prisoner access to publications. See the Declaration of Lance Weber attached hereto

as Exhibit A, and the associated Exhibit One.

The Defendants’ flagrant disregard for the Order compels Plaintiffs to respectfully

request this Court issue an order requiring defendants to show cause why they should not be

held in contempt for this willful failure.

16
17

II. PROCEDURAL HISTORY AND RELEVANT FACTS

A. PRISON LEGAL NEWS PUBLICATIONS

Human Rights Defense Center (HRDC), a Washington nonprofit corporation, is a

Federally recognized 501(c)(3) that owns and operates Prison Legal News (PLN). PLN

publishes and distributes books and an eponymous monthly journal to prisoners throughout the

country, as well as to other non-profits, attorneys, public defenders, journalists, academics,

investment bankers, university and law school libraries, prison law libraries, prison rights

activists, students, family members of prisoners and concerned private individuals. State-level

government officials also subscribe to PLN, including attorneys general, prison wardens, and

members of other prisoner-related agencies. PLN covers issues such as court access,

disciplinary hearings, prison conditions, excessive force, mail censorship, jail litigation, visiting,

28
- 2Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 3 of 16

telephones, religious freedom, free speech, prison rape, abuse of women prisoners, retaliation,

the Prison Legal Reform Act (PLRA), medical treatment, AIDS, the death penalty, and control

units. PLN publications include: monthly law, the journal Prison Legal News; Prison Legal

News informational brochures (Info Packs); Prisoner’s Self-Help Litigation Manual (PSHLM);

and Protecting Your Health and Safety (PYHS).

Beginning in approximately September of 1999, NDOC (known as the “Nevada

Department of Prisons” at that time) and associated facilities refused to allow the delivery of

any mail from Prison Legal News pursuant to a ban on “inmate publications” and “inmate

correspondence.” See NDOP policy AD 41-95. (From this point forward, NDOC will be used

to refer to both the current organization of the “Nevada Department of Corrections” and its

predecessor in interest, the “Nevada Department of Prisons”). Given the core First Amendment

issues raised by this policy, Prison Legal News undertook suit to alter NDOC practices. Upon

information and belief, NDOC has continued this and similar unconstitutional restrictions to this

day.

B. LITIGATION HISTORY

Plaintiffs, as represented by the American Civil Liberties Union of Nevada (“ACLUN”)

first began litigating NDOC censorship practices in 2000. In Prison Legal News v. Crawford et

18
19

al., Case #: 3:00-cv-00373-HDM-RAM, Plaintiffs successfully obtained a judgment and order

enjoining the NDOC from censoring Prison Legal News publications. See “Stipulation and

Judgment/Order,” Prison Legal News v. Crawford et al., CV-N-00-0373-HDM-RAM. (D. Nev.

9/27/00) (hereafter “NDOC Consent Decree” and attached as Exhibit One to the Declaration of

Lance Weber.)

24
25
26

PLN v. Crawford grew out of NDOC’s unconstitutional policy of excluding Prison
Legal News, and associated correspondence, from NDOC institutions as prohibited “inmate

27
28
- 3Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 4 of 16

1
2

publications.” See Thornburgh v. Abbott, 490 U.S. 401 (1989). Pursuant to Consent Decree,
NDOC adopted the following policy regarding prisoner access to publications:

3
4
5
6
7
8
9
10

Prisoners in the custody of the Nevada Department of Prisons (NDOP) shall be
permitted to subscribe to the publications of their choice, and shall receive all issues of
those publications without interference, except as provided below. Wardens may
designate staff to screen and, where appropriate, approve incoming publications, but
only a Warden may reject a publication. Wardens are authorized to reject a publication
only if it is determined, after reasonable consideration, to be detrimental to the safety,
security, good order, or discipline of the institution or if it might facilitate criminal
activity.
NDOC Consent Decree at 3: 9-18. The Consent Decree binds the Director of the Nevada
Prisons Department, as well as his or her “officers, agents, servants, employees, and successors

11
12

in office” to “implement and maintain” this policy. Id. at 3: 4-7.

Per the decree, “only a Warden may reject a publication.” Id. at 3:14. The Consent

Decree also provides specific guidance to the Warden, as to the type of criteria that may support

rejection of a publication. Exclusion may occur, where:

16
17
18
19
20
21
22
23
24
25

1. Content depicts or describes procedures for the construction or use of weapons,
ammunition, bombs or incendiary devices;
2. Content depicts, encourages, or describes methods of escape from correctional
facilities, or contains blueprints, drawings or similar descriptions of prison
institutions;
3. Content depicts or describes procedures for the brewing of alcoholic beverages, or
the manufacture of drugs;
4. Content is written in code;
5. Content describes or encourages activities which may lead to the use of physical
violence or group disruption;
6. Content encourages or instructs in the commission of criminal activity;
7. Content is sexually explicit material which by its nature or content poses a threat to
the security, good order, or discipline of the institution, or facilitates criminal
activity.

26
27
28
- 4Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 5 of 16

All publications mailed to NDOP prisoners shall be reviewed according to the same criteria.

There shall be no separate category of “inmate publications” or “inmate newsletters.” Id. at 3:

20-28 and 4: 1-12.

4
5

Finally, the Consent Decree mandates specific due process protections, where a

publication is rejected. Both the inmate-subscriber and the publisher must receive written notice

of the reasons for the rejection, as well as the opportunities for independent review.

8
9
10
11
12
13
14
15
16

In the event a Warden rejects an issue of a publication, he or she must advise the
subscribing inmate promptly in writing of the reasons for the rejection and send a copy
of such rejection memorandum to the publisher. The rejection memorandum must refer
to the specific article(s) or materials(s) considered objectionable. The rejection
memorandum must also advise the publisher that he or she may obtain an independent
review of the rejection by the Director of the Nevada Department of Prisons by
requesting it within 20 days (plus 3 for mailing) of the date the rejection memorandum is
mailed to the publisher. The subscribing inmate may grieve the rejection through the
prison’s administrative grievance process.
NDOC Consent Decree at 4: 15 – 25.

C. ADOPTION OF ADMINISTRATIVE REGULATION 750

Following its entry into the stipulated judgment represented by the Consent Decree,

NDOC issued Administrative Regulation 750 (AR 750), Inmate General Correspondence and

Mail. See Exhibit B to this motion. AR 750 contains several provisions that conflict with the

mandates of the Consent Decree, as well as Constitutional First Amendment principles.

Problematic rules include: (1) imposition of a preapproval requirement for books that is

inconsistent with the Consent Decree; (2) enforcement of a publication approval process that

exceeds the confines of the Consent Decree; and (3) the failure to provide notice to publishers

when books are rejected.

26
27
28
- 5Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 6 of 16

1
2

D. CURRENT PRACTICES & RECENT VIOLATIONS

Since this Court’s 2000 Order, Prison Legal News has received substantiated reports of

statewide censorship and rejection of Prison Legal News publications, including the following

materials sent to subscribers and inmate requesters:

5
6
7





Prison Legal News informational brochures (Info Packs)
Prisoner’s Self Help Litigation Manual (PSHLM)
Protecting Your Health and Safety (PYHS)

8
Censorship has taken place on the grounds that Prison Legal News is “inmate or felon
9
10

correspondence.” In addition, facilities throughout the state of Nevada have failed to deliver

issues of Prison Legal News, or associated publications, without notice to the inmate-subscriber

or to Prison Legal News, the publisher.

13
14

Below are a number of censored items by facility. While not an exhaustive list, the

following summary demonstrates pervasive censorship taking place from 2011 to present.

According to Lance Weber, in-house counsel for HRDC, numerous copies of PLN publications

17
18
19

were returned from Nevada correctional facilities with various rejection notations. Declaration
of Lance Weber at ¶ 7 (attached as Exhibit A to this motion).

20
21
22
23
24

NDOC Statewide
PYHS Sent: 43 PYHS copies sent by PLN in 2011
PYHS Returned: 14 copies marked “Unauthorized
Correspondence/Contents” and “Return to Sender”
Info Packs: 48 copies censored and returned to PLN

Ely State Prison

PYHS Sent: 14 PYHS copies sent by PLN in 2011
PYHS Returned: 4 copies marked “Unauthorized correspondence,” “No
Approval,” and “Return to Sender” in 2011

27
28

- 6Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 7 of 16

Info Packs Censored: 41 copies marked “Unauthorized correspondence,”
“Return to Sender,” “No labels,” and “RTS” from 2011 to present

2
Lovelock State Prison
3
4

Info Packs Censored: 4 copies marked “Return to Sender,” “No LabelStickers,” and “No Labels Allowed” in 2011

5
6
7

Northern Nevada Correctional Center
PYHS Sent: 14 PYHS copies sent by PLN in 2011
PYHS Returned: 9 copies marked “Unauthorized” and “RTS” in 2011

8
9
10

Nevada Indian Springs, High Desert State Prison
PYHS Sent: 9 PYHS copies sent by PLN in 2011
PYHS Returned: 1 copy marked “Unauthorized” and “RTS” in 2011

11
12
13

South Nevada Women’s Correctional Facility
Info Packs Censored: 3 copies marked “Refused,” “No stickers,” and
“Unauthorized Correspondence/Contents” in 2013

14
15
16

Declaration of Paul Wright at ¶ ¶ 8-15 (attached as Exhibit C to this motion)
Following the return and censorship of so many PLN publications, Lance Weber sent a

letter to the Nevada Department of Corrections concerning the emerging unlawful pattern of

censorship. Declaration of Lance Weber at ¶ 8. The letter, attached as Exhibit Two to the

Declaration of Lance Weber, was sent on June 15, 2011, and, to date, HRDC has received no

response to this inquiry. Id. at ¶ ¶ 7-8. On May 14, 2013, Lance Weber reiterated a demand,

attached as Exhibit Three to the Declaration of Lance Weber, that NDOC provide an

immediate and satisfactory response to these concerns to which there also has been no response.

Id. at ¶ ¶ 9-10. There is nothing to suggest Defendants’ practice of unlawfully censoring PLN

publications has ceased. In fact, the above-mentioned record shows the same patterns and

practices on the part of Defendants throughout the course of this extended litigation. As a

result, Plaintiffs respectfully request that this Court issue an order requiring Defendants show

cause as to why they should not be held in contempt.

28
- 7Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 8 of 16

1
2
3
4

III. ARGUMENT
A. THIS COURT SHOULD HOLD DEFENDANTS IN CONTEMPT IF THEY
DO NOT SHOW CAUSE FOR THEIR FAILURE TO COMPLY WITH THE
COURT’S ORDER.
It is axiomatic that an order issued by a court with jurisdiction over the subject matter

5
6
7
8
9
10

and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.
U.S. v. United Mine Workers of America, 330 U.S. 258, 293 (1947).
Congress has determined that the power to hold a party in contempt is a
discretionary power vested in the court whose order has been violated. “A court
of the United States shall have power to punish by fine or imprisonment, at its
discretion, such contempt of its authority ... as ... disobedience or resistance to its
lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401 (1982).

11
12
13

In re Crystal Palace Gambling Hall, Inc. 817 F.2d 1361, 1364 (9th Cir. 1987).
“One of the overarching goals of a court's contempt power is to ensure that litigants do

14
not anoint themselves with the power to adjudge the validity of orders to which they are
15
16

subject,” and that in the absence of such power, “what the Constitution now fittingly calls the

‘judicial power of the United States' would be a mere mockery.” Chicago Truck Drivers v.

Brotherhood Labor Leasing, 207 F.3d 500, 504 (8th Cir. 2000) (citing United Mine Workers,

330 U.S. at 290, n. 56). A court has wide latitude in determining whether there has been

20
21
22
23
24

contemptuous defiance of its order. Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48
(9th Cir.1971); Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984).
If Defendants do not comply with this Court’s order, then this Court can and should hold
them in contempt for their failure to do so.

25
26
27

That the power to punish for contempt is inherent in all courts,
has been many times decided and may be regarded as settled law.
It is essential to the administration of justice. The courts of the
United States, when called into existence and vested with

28
- 8Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 9 of 16

jurisdiction over any subject, at once became possessed of the
power.

2
3

Michaelson v. U. S. ex rel. Chicago, St. P., M. & O. Ry. Co., 266 U.S 42, 65-66 (1924). “There

can be no question that courts have inherent power to enforce compliance with their lawful

orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966); California

Dept. of Social Service v. Leavitt, 523 F.3d 1025, 1033 (9th Cir. 2008). This power to punish

for contempt can be used to punish for failure to follow court orders, even if the court has

largely ended its involvement in a case. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S.

787, 788 (1987) (“the underlying basis for the contempt power is the need to address

disobedience to court orders regardless of whether such disobedience interferes with the

conduct of trial”).

12
13
14
15
16
17
18

Civil contempt may be employed either to coerce the defendant into compliance
with a court order or to compensate the complainant for losses sustained, or both.
United Mine Workers, 330 U.S. at 303-04, 67 S.Ct. 677. Either incarceration or a
fine may accomplish the purpose of coercion, while, “[w]here compensation is
intended, a fine is imposed, payable to complainant.” Id. at 304, 67 S.Ct. 677;
see also United States v. Onan, 190 F.2d 1 (8th Cir.) (holding that a court has the
power to impose a fine for civil contempt), cert. denied, 342 U.S. 869, 72 S.Ct.
112, 96 L.Ed. 654 (1951).
Chicago Truck Drivers, 207 F.3d at 505. Civil contempt is appropriate when a party fails to

19
20

comply with a court order that is both specific and definite. Balla v. Idaho State Board of

Corrections, 869 F.2d 461, 465 (9th Cir. 1989). The disobedience in question need not even be

willful. In re Crystal Palace Gambling Hall, 817 F.2d at 1365.

23
24

The Court, in determining the amount and duration of a coercive fine, must "consider the
character and magnitude of the harm threatened by continued contumacy, and the probable

25
26
27

effectiveness of any suggested sanction in bringing about the result desired." Whittaker Corp v.
Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992) (quoting United Mine Workers, 330 U.S. at

28
- 9Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 10 of 16

304); see also General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir.1986);

Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir.1983). A finding of civil contempt is

remedial and can result in the award of compensation as well as attorney’s fees. Reno Air

Racing Association, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006):

5
6
7
8
9
10
11
12
13
14

Where the purpose of contempt is “remedial, i.e. to compensate for the costs of
the contemptuous conduct or to coerce future compliance with the court's order,
the contempt order is civil.” Portland Feminist Women's Health Ctr. v.
Advocates for Life, Inc., 877 F.2d 787, 790 (9th Cir.1989). In awarding Reno Air
reasonable attorneys' fees and costs associated with the TRO and the contempt
motion, the district court noted that such sanctions were “appropriate to
compensate the plaintiff for any losses sustained....” Thus, the purpose was
remedial, and the district court properly denominated the contempt as “civil.” Id.
(explaining that where the sanction for contempt was liability for costs
associated with the contempt motion, including reasonable attorneys' fees, the
sanction was “remedial,” and contempt was properly characterized as civil).
452 F.3d at 1130 n. 5.
Here, despite a clear Order by this Court, Defendants still cling to their discredited

15
16

position that they may freely engage in the illegitimate censorship of PLN publications without

notice, and trump both the Court’s authority and that of the United States Constitution. Thus,

their behavior constitutes a willful defiance of this Court in keeping with an attitude in which

they assume they can, to use the language from Chicago Truck Drivers, supra, “anoint

20
themselves with the power to adjudge the validity of orders to which they are subject.” 207
21
22
23
24

F.3d at 504. Thus, a finding of civil contempt is appropriate.
B.
THE CONSENT DECREE, COUPLED WITH FIRST AMENDMENT
PROTECTIONS, MANDATE THAT NDOC CEASE THE FOLLOWING PRACTICES
AND VOID ASSOCIATED REGULATIONS.

25
26

The First Amendment states that “Congress shall make no law…abridging the freedom

of speech, … or the right of people peaceably to assemble… .” Berger v. City of Seattle, 569

F.3d 1029, 1036, n. 2 (9th Cir. 2009) (citing U.S. Const. Amend. I). As the U.S. Supreme
- 10Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 11 of 16

Court has emphasized, “there is no question that publishers who wish to communicate with

those who, through subscription, willingly seek their point of view have a legitimate First

Amendment interest in access to prisoners.” Thornburgh v. Abbott, 490 U.S. at 408. We will

examine NDOC’s problematic practices and rules in turn:

5
6

Censorship of Correspondence with PLN as an “Inmate”
Publication.

7
8

Correspondence from Ely State Prison, dating from March and April of 2012, indicates

that of PLN’s monthly journal issues are being censored on the grounds that it is a publication

written by felons or ex-felons. This squarely contradicts the terms of the NDOC Consent

11
12

Decree at 4:9-11, which states “All publications mailed to NDOP prisoners shall be reviewed

according to the same criteria. There shall be no separate category of ‘inmate publications’ or

‘inmate newsletters.’” This was the very issue litigated in 2000 and any such policy or practice

amounts to a clear violation of the Consent Decree. See “Stipulation and Judgment/Order,”

Prison Legal News v. Crawford et al, CV-N-00-0373-HDM-RAM. (D.Nev.); Declaration of

17
18
19

Lance Weber at ¶ 5.

ii.

Preapproval Requirement for Books Violates Consent Decree

20
21

AR 750.08(2) states “A Book Request, Form DOC-3037 must be filled out listing the

title(s) and author(s) of the book(s). This request form must be approved by the Publication

Review Committee before ordering the book(s).” AR 750.08(2)’s mandate that inmates receive

preapproval for all books sent to NDOC facilities, and the further restraint provided by AR

25
750.08(9), where such approval expires after 60 days, create significant obstacles to the
26
27
28
- 11Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 12 of 16

1
2
3
4

enforcement of the terms of the Consent Decree. The Consent Decree vests the Warden,
solely, with the authority to reject a publication. NDOC Consent Decree at 3:13-18.
It is well settled that the First Amendment protects the flow of information to prisoners
and any limitation must reasonably relate to a legitimate penological interest. Crofton v. Roe,

5
6

170 F.3d 957, 959 (9th Cir. 1999) (citing Turner v. Safley, 482 U.S. 78, 89-90 (1987), and

Thornburgh, 490 U.S. at 407-08). In Ashker v. California Department of Corrections, 350 F.3d

917 (9th Cir. 2003), the Ninth Circuit held that a policy that required books and magazines to be

shipped in packages that had an “approved vendor label” affixed to the package was not

rationally related to the California Department of Correction’s legitimate interests in preventing

11
12
13

the introduction of contraband. The Court emphasized that the policy unnecessarily burdened
the prisoners’ First Amendment rights by cutting off the receipt of books. 350 F.3d at 924.

Thus, a preapproval requirement for books amounts to an unreasonable burden on the

First Amendment rights of publishers and prisoners alike. Id. In addition, it is not rationally

related to a legitimate penological interest. Notably, Section 4.A. of A.R. 750.08 establishes for

17
18
19

a second round of review upon a book’s receipt. “Upon receipt all books will be subject to
review for content by the Publication Review Committee.”

20
21
22
23

iii.

Publication Approval Process Violates Consent Decree

The publication approval process embodied in AR 750 breaches the terms of the
Consent Decree. AR 750.08(4)(A) requires that all books must be prepaid and:

24
25
26
27

A. “Upon receipt all books will be subject to review for content by the
Publication Review Committee.”
B. All books identified as not complying with procedures will not be issued
and the inmate will receive a notification of unauthorized property.

28
- 12Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 13 of 16

1
2
3
4
5
6

C. All books in compliance may be moved to the property room for
disbursement, and the invoice placed into the inmate’s property file.
D. If disapproved, inmate will have 30 days to send out or dispose of the book
per the Department’s Administrative Regulation 711.
E. Inmate may appeal the disapproval through the grievance process. Items
will be held pending the decision/outcome of the grievance process.

Pursuant to the Consent Decree, “[w]ardens are authorized to reject a publication only if it is

determined, after reasonable consideration, to be detrimental to the safety, security, good order

or discipline of the institution or if it might facilitate criminal activity.” Consent Decree 3: 14-

10
11

17. The decree then sets forth a list of criteria supporting rejection of a publication. Consent

Decree 3: 18-19. AR 750 does not articulate the standards by which the Publication Review

Committee will approve of books; nor does it conform to the Warden-driven process anticipated

by the Consent Decree.

15
Finally, AR 750 does not include any provision for notification to publishers of
16
17
18

books rejected at the preapproval stage or after arrival at NDOC facilities. Nor are publishers
permitted to appeal such a rejection. This will be discussed in further detail below.

19
20

iv.

Failure to Provide Due Process & Notice to Publisher

The failure of AR 750.08 to provide for notification to publishers when books have been

rejected at the preapproval stage or when books are rejected from NDOC facilities amounts to a

substantial violation of the terms of the Consent Decree and Due Process requirements. AR

24
25

750.08 states that “All books identified as not complying with procedures will not be issued and

the inmate will receive a notification of unauthorized property.” AR 750.08 neglects to provide

for any explanation of the reasons for the rejection, or for any notification to the publisher or

28
- 13Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 14 of 16

1
2
3
4

vendor of the book. In addition, the regulation fails to establish any mechanism for a publisher
to appeal a rejection decision.
Pursuant to the terms of the Consent Decree, “in the event a Warden rejects… a
publication, he or she must advise the inmate promptly in writing of the reasons for the rejection

5
6

and send a copy of such rejection memorandum to the publishers.” See Exhibit “B”. AR

750.08 makes no provision for the delivery of an articulated rejection memorandum to the

publisher. In practice, PLN has found that where books are rejected, PLN merely receives a

“Return to Sender” (RTS) package. Declaration of Paul Wright at ¶ 15. Even this, however,

does not take place consistently. Id.

11
12

AR 750.08 also violates Constitutional mandates. The Fourteenth Amendment to the

U.S. Constitution ensures due process protections attach to prison mailings. Procunier v.

Martinez, 416 U.S. 396, 417 (1974) (holding that the “decision to censor or withhold delivery of

a particular letter must be accompanied by minimum procedural safeguards”), overruled on

other grounds by Thornburgh v. Abbott, 490 U.S. at 413-14. NDOC’s failure to provide notice

17
18
19
20

and administrative review of the rejected mailings deprives publishers of the due process
safeguards required by Procunier. As held by the U.S. Supreme Court, due process mandates:

That an inmate be notified of the rejection of a letter written by or addressed to him, that
the author of the letter be given a reasonable opportunity to protest that decision, and
that complaints be referred to a prison official other than the person who originally
disapproved the correspondence.

416 U.S. at 418-19. This means that prison officials must provide notice of their decision not to

deliver a mailing to publishers. Procunier, 416 U.S. at 417-419; Prison Legal News v. Cook,

25
26
27

238 F.3d 1145, 1152-53 (9th Cir. 2001). . See also Jacklovich v. Simmons, 392 F.3d 420, 433
(10th Cir. 2004) (characterizing Cook as recognizing “that both inmates and publishers have a

28
- 14Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 15 of 16

right to procedural due process when publications are protected.”) Prison officials must also

establish a mechanism for the protest of a rejection decision. Procunier, 416 U.S. at 417-419.

Thus far, PLN has not had the opportunity to appeal any of the rejected mailings to a NDOC

official. Nor has it received a rejection memorandum in relation to any of the associated

5
6

mailings. Declaration of Paul Wright at ¶ 16.

As the preceding discussion illustrates, Defendants have abused First Amendment rights

knowingly on numerous occasions, demonstrating disregard for this court’s order. Each type of

expression listed above is protected under the First Amendment. NDOC’s current practices and

AR 750 provisions are prohibited by the Consent Decree and by existing precedent.

11
12
13

IV. CONCLUSION
For the foregoing reasons, Plaintiff requests that this Court enter an order directing

14
Defendants to show cause why they should not be held in contempt for their willful failure to
15
16

comply with this Court’s prior order and judgment. Please also find attached as Exhibit D, our

associated complaint in Prison Legal News v. Cox et al., which addresses additional concerns

raised by NDOC mailing policies and practices.

19
20
21
22
23
24
25
26
27
28
- 15Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]

Case 3:00-cv-00373-HDM-WGC Document 51 Filed 06/28/13 Page 16 of 16

V. PRAYER

1
2
3
4
5
6
7
8
9
10
11

WHEREFORE, Plaintiffs pray judgment against the Defendants, and each of them, as
follows:
1.

For an order to show cause for Defendants’ willful failure to comply with this

Court’s prior order and judgments;
2.

For a contempt citation for Defendants’ willful failure to comply with this Court’s

prior order and judgments;
3.

For such other sanctions, as the Court deems proper, and in an amount the Court

deems reasonable;
4.

For declaratory and injunctive relief, invalidating the provisions of A.R. 750

which fall afoul of the Consent Decree and the demands of the First Amendment;

For attorney’s fees and costs of suit necessarily incurred herein;

For such other and further relief as this Court may deem just and appropriate in

the premises.

15
16

DATED: This 28th day of June 2013.

17
18
19
20
21
22
23

Respectfully Submitted,
/s/ Staci Pratt________
Staci Pratt
601 S. Rancho Dr., Ste. B-11
Las Vegas, NV 89106
(702) 366-1536
Cooperating Attorney for the
ACLU of Nevada

24
25
26
27
28
- 16Plaintiffs’ Order to Show Cause Why the Defendants Should Not be Held in Contempt

[863599-1]