Case 2:20-cv-02447 Document 1 Filed 09/11/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HUMAN RIGHTS DEFENSE CENTER,

)
)
Plaintiff,
)
v.
)
)
BOARD OF COMMISSIONERS OF
)
JOHNSON COUNTY, KANSAS;
)
CALVIN HAYDEN, Sheriff, in his official )
and individual capacities; and DOES 1-10, )
in their individual capacities,
)
)
Defendants. )

Civil Action No. _______________

COMPLAINT
PRELIMINARY STATEMENT
Plaintiff, Human Rights Defense Center (“HRDC” or “Plaintiff”), brings this action to
enjoin Johnson County, Kansas, Sheriff Calvin Hayden, and their employees from
unconstitutionally censoring HRDC’s correspondence to incarcerated persons, and for damages
arising from such censorship.
HRDC, a not-for-profit charitable organization, sends books, magazines, and other
correspondence to prisoners and detainees across the United States. These materials educate
incarcerated persons about their legal and civil rights and their options for accessing education
while incarcerated. In recent months, these materials have also provided incarcerated persons
critical, time-sensitive information related to the global COVID-19 pandemic, including, among
other things, how it is affecting jail populations, the symptoms of the disease, and steps
incarcerated persons can take to avoid contracting and spreading the virus. In communicating with
such persons, HRDC engages in core protected speech and expressive conduct on matters of public

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concern, which are entitled to the highest protection afforded by the First Amendment of the U.S.
Constitution.
Yet since July 2020, and on an ongoing basis, staff at the New Century Adult Detention
Center (the “Jail”) in Johnson County, Kansas have refused to deliver dozens of HRDC’s mailings
to incarcerated persons, directly violating HRDC’s First Amendment right to freedom of speech.
Jail personnel have either failed to notify HRDC when it censored these mailings, or simply
returned the mailings to HRDC’s office with no indication as to why they were rejected – violating
HRDC’s Fourteenth Amendment rights to notice and an opportunity to challenge censorship.
Although the Jail has an official mail policy in place, its correctional officers arbitrarily
enforce that policy. Accordingly, through this lawsuit, HRDC respectfully requests that the Court
order the Jail and its employees to cease and desist from continuing their ongoing violation, under
color of State law, of HRDC’s rights (and those of its would-be readers) guaranteed by the First
Amendment to the Constitution of the United States, and to award HRDC damages for the injuries
it has sustained as a result of Defendants’ unlawful conduct.
JURISDICTION AND VENUE
1.

This action is brought pursuant to 28 U.S.C. § 1331, as it arises under the

Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343, as it seeks redress
for civil rights violations under 42 U.S.C. § 1983.
2.

Venue is proper under 28 U.S.C. § 1391(b). At least one Defendant resides within

this judicial district, and the events giving rise to the claims asserted herein occurred within this
judicial district.
3.

HRDC’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes

actions to redress the deprivation, under color of state law, of rights, privileges, and immunities

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secured to Plaintiff by the First and Fourteenth Amendments of the U.S. Constitution and the laws
of the United States.
4.

This Court has jurisdiction over claims seeking declaratory and injunctive relief

pursuant to 28 U.S.C. §§ 2201 and 2202, as well as claims seeking nominal and compensatory
damages against all Defendants.
5.

HRDC’s request for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988,

which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought
pursuant to 42 U.S.C. § 1983.
PARTIES
6.

HRDC is a not-for-profit charitable organization recognized under § 501(c)(3) of

the Internal Revenue Code, incorporated in the state of Washington and with principal offices in
Lake Worth, Florida.
7.

Defendant Board of Commissioners of Johnson County (“Johnson County”) is the

governing body for Johnson County, Kansas, a formally constituted political subdivision of the
state of Kansas. Johnson County has delegated its authority for the operation of the Jail to Sheriff
Hayden.
8.

Defendant Calvin Hayden (“Hayden”) is the Sheriff of Johnson County, Kansas, to

whom Johnson County has delegated the operation of the Jail. He has held the position of Johnson
County Sheriff since January 2017. Sheriff Hayden is responsible for overseeing the management
and operations of the Jail facilities, and for the hiring, screening, training, retention, supervision,
discipline, counseling, and control of the personnel of the Jail who interpret and apply the mail
policy to incarcerated persons. As Sheriff, Hayden is a final policymaker for the Jail with respect

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all of its operations, including for policies governing incoming mail for incarcerated persons. He
is sued in both his official and his individual capacities.
9.

The true names and identities of Defendants DOES 1 through 10 are presently

unknown to HRDC. Each of DOES 1 through 10 are or were employed by and are or were agents
of the Jail when some or all of the challenged mail policies and practices at the Jail were adopted
and/or implemented. Each of DOES 1 through 10 are or were personally involved in the adoption
and/or implementation of the Jail’s mail policies for incarcerated persons, and/or are or were
responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or
control of the Jail staff who interpret and implement these mail policies. DOES 1 through 10 are
sued in their individual and official capacities. HRDC will seek to amend this Complaint when
the true names and identities of DOES 1 through 10 have been ascertained.
10.

At all times material to this Complaint, the actions of all Defendants as alleged

herein were taken under the authority and color of state law.
FACTUAL ALLEGATIONS
I.

HRDC’s Publications
11.

For more than 30 years, the focus of HRDC’s mission has been public education,

advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal
redress for infringements of their constitutionally guaranteed and other basic human rights.
HRDC’s mission, if realized, has a salutary effect on public safety.
12.

To accomplish its mission, HRDC publishes and distributes books, magazines, and

other information containing news and analysis about prisons, jails and other detention facilities,
prisoners’ rights, court rulings, management of prison facilities, prison conditions and other
matters pertaining to the rights and/or interests of incarcerated individuals.

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13.

HRDC publishes and distributes an award-winning, 72-page monthly magazine

titled Prison Legal News: Dedicated to Protecting Human Rights, which contains news and
analysis about prisons, jails, and other detention facilities, prisoners’ rights, court opinions,
management of prison facilities, prison conditions, and other matters pertaining to the rights and/or
interests of incarcerated individuals.
14.

Starting in April 2020, HRDC’s Prison Legal News magazine has also sought to

provide incarcerated persons critical, time-sensitive information related to the global COVID-19
pandemic, including how it is affecting jail populations, the symptoms of the disease, and steps
incarcerated persons can take to avoid contracting and spreading the virus.
15.

HRDC also publishes a second 56-page monthly magazine, Criminal Legal News.

This magazine focuses on review and analysis of individual rights, court rulings, and news
concerning criminal justice-related issues.
16.

HRDC has thousands of subscribers to its monthly magazines in the United States

and abroad, including incarcerated persons, attorneys, judges, journalists, libraries, and members
of the public. Since its creation in 1990, HRDC has sent its publications to prisoners and law
librarians in more than 3,000 correctional facilities across the United States, including death row
units and institutions within the Federal Bureau of Prisons, such as the federal Administrative
Maximum Facility (“ADX” or “Supermax”) in Florence, Colorado—the most secure prison in the
United States. Prison Legal News is distributed to prisons and jails within the correctional systems
of all 50 states, including to dozens of incarcerated persons housed in facilities in the State of
Kansas.
17.

Additionally, HRDC publishes and/or distributes dozens of different softcover

books about the criminal justice system, legal reference books, and self-help books of interest to

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prisoners. These books are designed to foster a better understanding of criminal justice policies
and to allow prisoners to educate themselves about related issues, such as legal research, how to
write a business letter, health care issues, and similar topics. Pertinent to this case, HRDC
publishes and/or distributes the Prisoners’ Guerilla Handbook: A Guide to Correspondence
Programs in the United States and Canada (“Prisoners’ Guerilla Handbook”), which provides
prisoners information on enrolling at accredited higher educational, vocational and training
schools, and Protecting Your Health and Safety (“PYHS”), which describes the rights, protections
and legal remedies available to prisoners concerning their incarceration.
18.

In addition to monthly journal issues and books, HRDC also sends prisoners: (a)

informational brochure packets – the packet contains a brochure and subscription order form, a
book list, and a published books brochure (each of which is a single page); (b) copies of judicial
opinions of import to prisoners; and (c) letters which provide other pertinent information to
incarcerated people, including follow up letters to confirm that HRDC’s mail was received.
19.

HRDC has been attempting to send these important publications to persons

incarcerated at the Jail, but Defendants maintain mail policies or practices that unconstitutionally
prevent HRDC from doing so.
II.

Defendants’ Mail Policies and Practices
20.

According to the Johnson County Sheriff’s Office Detention Bureau Mail Rules

(the “Mail Policy”):
Incoming Non-Privileged mail may be accepted in postcard or letter form. All
Non-Privileged Mail in letter form will be opened and inspected for contraband by
authorized personnel. Non-Privileged Mail will also be inspected for prohibited
content and for any restricted material.
•

Letters/Postcards will be addressed with the return address clearly readable or
they will not be accepted.

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•
•
•
•

Letters/Postcards will have stamps removed and discarded prior to delivery to
the inmate.
No plastic/wrappings, labels or stickers on letters/postcards.
No letters/postcards with watermarks, stains, biohazards (including lipsticks or
perfumes) will be accepted.
No letters/postcards depicting sexually explicit material, weapons, alcohol, or
gang reference will be accepted.
Letters/postcards will be rejected, returned to sender or seized as evidence only
if there is credible evidence showing the letter contains one or more of the
following:

•
•
•
•
•
•
•
•

Plans for sending contraband into or out of the Detention Center.
Plans for criminal activity.
Instructions for the manufacturing of weapons, alcoholic beverages, drugs, and
drug paraphernalia.
Threatened blackmail or extortion.
Plans for escape or unauthorized entry.
Plans for activities in violation of Detention Center rules.
Sexually explicit, nudity, weapons, alcohol, or gang related material.
Information which if communicated would create a serious danger of violence,
physical harm to a human being, or the order and security of the detention
centers.
Should correspondence be totally or partially rejected, a written notice stating the
reason(s) for rejection shall be provided to the inmate.

Johnson County Sheriff’s Office Detention Bureau Mail Rules, available at
http://www.jocosheriff.org/detention/mail-rules (last visited September 10, 2020).
21.

In addition, the Jail’s policy contains the following provisions regarding

publications:
2. Newspapers or Magazines
• Prior approval from the Classification supervisor or their designee is
necessary for Newspapers or Magazines.
• Due to contraband concerns, publication inserts shall be removed prior
to delivery to the inmate.
• Newspapers and Magazines must be sent from the publisher and can
be denied if found to threaten the safety or security of the facility.

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3. Packages are still not accepted without prior approval. The definition of a
package is any item requiring postage more than the cost of a first class
stamp.
III.

Defendants’ Censorship of HRDC’s Mail
22.

Beginning in July 2020, the Jail began returning many of HRDC’s mailings to

incarcerated persons there.
23.

Specifically, Defendants have censored issues of Prison Legal News and Criminal

Legal News, the Prisoner’s Guerilla Handbook, PYHS, informational brochure packets, and court
opinion letters sent by HRDC to incarcerated persons held in the Jail. Defendants refused to
deliver said items to the incarcerated persons and, in some instances, returned items to Plaintiff’s
office via the “Return to Sender” service of the United States Postal Service. Defendants’
censorship of these materials is ongoing.
24.

Altogether, since July 2020 Plaintiff can identify at least fifty-eight (58) items that

were rejected by Defendants, including ten (10) copies of Prison Legal News, ten (10) copies of
Criminal Legal News, ten (10) copies of PYHS, ten (10) copies of the Prisoners’ Guerilla
Handbook, ten (10) informational brochure packs, one (1) court ruling, and seven (7) follow up
letters.
25.

The rejected items of mail described in the previous paragraph were returned to

HRDC’s offices marked with one or more of the following notations: “Refused”, “Not Approved”,
“Return to Sender Unauthorized Package Reason: _______________”, “Return to Sender
Unauthorized Package Reason: Not Approved”, “Return to Sender Unauthorized Package Does
Not Comply With Facility Mail Policy”, and “No Labels, Stickers, Etc.”
26.

On information and belief, in addition to the items the Defendants have censored

and returned to HRDC through the mail, Defendants are also censoring other items mailed by

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HRDC to persons incarcerated in the Jail, but without notifying HRDC that Defendants have
rejected the materials or the reasons therefor.
27.

Such restrictions on written speech sent to persons incarcerated at the Jail are not

rationally related to any legitimate penological interest and violate HRDC’s First Amendment right
to communicate, through the mail, with incarcerated persons.
28.

Defendants’ policies, practices, and customs are unconstitutional, both facially and

as applied to HRDC.
29.

Further, Defendants’ censorship policies, practices, and customs have a chilling

effect on HRDC’s future speech and expression directed toward persons incarcerated at the Jail.
30.

Plaintiff intends to continue sending mail and publications to those incarcerated at

the Jail. Plaintiff seeks the protection of this Court to ensure that Defendants cease their unlawful
conduct, and either deliver HRDC’s written speech or satisfy due process by providing HRDC
with the basis for any censorship so that HRDC may challenge the censorship.
IV.

Defendants’ Failure to Provide Due Process Notice and an Opportunity to
Appeal
31.

To date, Defendants have failed to provide HRDC with any notice of the reason for

the rejection of its publications.
32.

Further, Defendants have failed to provide HRDC with an opportunity to appeal the

censorship of its mail.
V.

Defendants’ Unconstitutional Mail Policies and Practices Are Causing HRDC
Ongoing and Irreparable Harm.
33.

Due to Defendants’ actions described above, HRDC has suffered damages, and

will continue to suffer damages, including but not limited to: deprivation of its constitutional
rights; frustration of its abilities to disseminate its political message, to recruit new subscribers and

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supporters, and to advance its mission as a not-for-profit organization; significant diversion of its
resources, including staff time; loss of potential subscribers and customers; damage to its
reputation; and significant printing, handling, and mailing costs.
34.

Defendants’ actions and omissions were and are all committed under color of law

and with reckless indifference to HRDC’s rights.
35.

Defendants and their agents are responsible for—or personally participated in—

creating and implementing these unconstitutional policies, practices, and customs, and/or ratifying
or adopting them.

Further, Defendant Hayden is responsible for training and supervising

employees whose conduct has injured and continues to injure HRDC.
36.

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

continue to violate HRDC’s constitutional rights—causing irreparable harm.

Defendants’

unconstitutional policies, practices, and customs will continue unless enjoined. As such, HRDC
has no adequate remedy at law.
37.

Defendant Hayden’s actions – including, but not limited to, the implementation

and arbitrary enforcement of an official mail policy – are in violation of clearly established law in
this jurisdiction that makes it unlawful for governmental officials to deny persons the right to
communicate, via the U.S. Mail, with incarcerated prisoners, absent a legitimate penological
justification and without providing notice and an opportunity to the mail sender to challenge any
such denial.
38.

In addition to damages, HRDC is entitled to injunctive relief prohibiting

Defendants from unconstitutionally censoring and refusing to deliver HRDC’s mailings and
depriving HRDC of due process of law.

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CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
Violation of the First Amendment Right to Free Speech and Communication
Under 42 U.S.C. § 1983
(Brought Against All Defendants)
39.

HRDC repeats and re-alleges each and every allegation set forth above, and

incorporates them herein by reference.
40.

The acts described above constitute violations of HRDC’s rights under the First

Amendment of the U.S. Constitution, as incorporated and applicable to the Defendants under the
Fourteenth Amendment.
41.

HRDC has a constitutionally protected liberty interest in communicating with

incarcerated individuals by sending its materials to them via U.S. Mail.

Defendants’

unconstitutional censorship violates HRDC’s clearly established right to communicate with these
individuals.
42.

There is no legitimate penological interest justifying Defendants’ unconstitutional

censorship.
43.

Moreover, Defendants’ apparent requirement that prisoners seek prior approval of

published materials before they can be delivered to their intended recipients serves as a prior
restraint on speech, abridging HRDC’s First Amendment rights.
44.

Defendants’ conduct is objectively unreasonable and was undertaken recklessly,

intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
45.

HRDC’s injuries and the violations of its constitutional rights were directly and

proximately caused by Defendants’ policies and practices; and those policies and practices were
the moving force behind the violations.

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46.

The acts described above have caused HRDC to suffer damages, and if not

enjoined, will continue to cause HRDC to suffer damages.
47.

HRDC seeks declaratory and injunctive relief against all Defendants, and nominal

and compensatory damages against the individual Defendants. HRDC seeks punitive damages
against the individual Defendants in their individual capacities.
SECOND CLAIM FOR RELIEF
Violation of the Fourteenth Amendment Right to Notice and Due Process
Under 42 U.S.C. § 1983
(Brought Against All Defendants)
48.

HRDC repeats and re-alleges each and every allegation set forth above, and

incorporates them herein by reference.
49.

The acts described above constitute violations of HRDC’s rights, the rights of

other correspondents who have attempted to or intend to correspond with persons incarcerated in
the Jail, and the rights of persons incarcerated in the Jail, under the Fourteenth Amendment of the
U.S. Constitution.
50.

HRDC has a clearly established right under the Due Process Clause of the

Fourteenth Amendment to receive notice and an opportunity to object and/or appeal Defendants’
decisions to prevent Plaintiff’s mail from reaching incarcerated persons held in the Jail.
51.

Defendants’ policy and practice of censoring HRDC’s mail fails to provide

Plaintiff with individualized notice of the censorship or an opportunity to be heard. Defendants
did not provide constitutionally adequate notice of the basis for censorship of HRDC’s magazines
nor did Defendants provide HRDC an opportunity to appeal the censorship decision with a party
not involved in that original decision. Thus, Defendants violated HRDC’s clearly established right
to due process.

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52.

Defendants’ conduct is objectively unreasonable and was undertaken recklessly,

intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
53.

HRDC’s injuries and the violations of its constitutional rights were directly and

proximately caused by Defendants’ policies and practices; and those policies and practices were
the moving force behind the violations.
54.

The acts described above have caused HRDC to suffer damages, and if not

enjoined, will continue to cause HRDC to suffer damages.
55.

HRDC seeks declaratory and injunctive relief against all Defendants, and nominal

and compensatory damages against the individual Defendants. HRDC seeks punitive damages
against the individual Defendants in their individual capacities.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests relief as follows:
1.

A declaration that Defendants’ policies and practices violate the First and
Fourteenth Amendments of the U.S. Constitution, facially and as applied;

2.

Preliminary and permanent injunctions preventing Defendants from
continuing to violate the First and Fourteenth Amendments of the U.S.
Constitution, and providing other equitable relief;

3.

Nominal damages for each violation of HRDC’s rights;

4.

Compensatory damages in an amount to be proved at trial;

5.

Punitive damages against the Individual Defendants in their individual
capacities, in an amount to be proved at trial;

6.

An award of costs, including reasonable attorneys’ fees, under 42 U.S.C.
§ 1988 and other applicable law; and

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7.

Such further and additional relief as this Court may deem just and equitable.
JURY DEMAND

Plaintiff Human Rights Defense Center hereby demands a trial by jury pursuant to Federal
Rule of Civil Procedure 38(b) on all issues so triable.
Dated: September 11, 2020

Respectfully submitted,
s/ Maxwell E. Kautsch
Maxwell E. Kautsch, Kansas Bar No. 21255
Kautsch Law, LLC
810 Pennsylvania St.
Suite 207
Lawrence, KS 66044
Telephone: (785) 840-0077
Fax: (785) 842-3039
maxk@kautschlaw.com
Bruce E.H. Johnson, WA Bar No. 7667*
Davis Wright Tremaine LLP
920 Fifth Avenue, Suite 3300
Seattle, WA 98104
Telephone: (206) 757-8069
brucejohnson@dwt.com
Daniel Marshall, Fla. Bar No. 617210*
Eric Taylor, Fla. Bar No. 1020671*
HUMAN RIGHTS DEFENSE CENTER
P.O. Box 1151
Lake Worth, FL 33460
Telephone: (561) 360-2523
Fax: (561) 828-8166
dmarshall@hrdc-law.org
etaylor@humanrightsdefensecenter.org
Attorneys for Plaintiff Human Rights Defense
Center
*Pro hac vice applications to be filed.

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