IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CASE NO. CASE NO. 5:21-CV-469-FL
HUMAN RIGHTS DEFENSE CENTER
FIRST AMENDED COMPLAINT

Plaintiff,
vs.
CASANDRA SKINNER HOEKSTRA, ERIK A.
HOOKS, TIM MOOSE, DOUG PARDUE,
DARCELL CARTER, LARRY DUNSTON,
GARRY BLEEKER, ZACHARY KENDALL,
WENDY HARDY, SHANE THARRINGTON,
individually and in their official capacities, and
THE NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY
Defendants.
I.
1.

INTRODUCTION

Plaintiff Human Rights Defense Center (“HRDC”) brings this action to enjoin

Defendants’ improper censorship of its monthly magazines—Prison Legal News and Criminal
Legal News—and other publications that HRDC sends to prisoners in the prison facilities
operated by the North Carolina Department of Public Safety (“NCDPS”).
2.

Defendants have adopted and implemented mail policies and practices prohibiting

delivery of written speech from HRDC while failing to provide due process—namely, an
opportunity to challenge that censorship. Defendants’ actions violate HRDC’s rights under the
First and the Fourteenth Amendments of the United States Constitution. HRDC thus brings this
action, pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief and damages to be
proven at trial.

Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 1 of 27

II.
3.

JURISDICTION AND VENUE

This action arises under the First and Fourteenth Amendments of the United

States Constitution and is predicated upon 42 U.S.C. § 1983, which authorizes actions to redress
the deprivation, under color of state law, of rights, privileges, and immunities secured to HRDC
by the laws of the United States.
4.

This Court has subject matter jurisdiction over this action under 28 U.S.C.

§§ 1331 and 1343. This Court has jurisdiction over claims seeking declaratory, injunctive, and
monetary relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal
Rules of Civil Procedure, as well as claims for nominal and compensatory damages against all
Defendants.
5.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b). On information

and belief, at least one Defendant resides within this judicial district, and many of the events
giving rise to the claims asserted herein occurred within this judicial district. On information and
belief, all Defendants are residents of the state of North Carolina.
III.
6.

PARTIES

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

the Internal Revenue Code, incorporated in the State of Washington and with its principal place
of business in Lake Worth, Florida. Founded in 1990, HRDC publishes the monthly newsprint
magazine Prison Legal News (“PLN”), the longest-running independent newsprint publication
concerning prisons and detention centers in the United States. HRDC also publishes Criminal
Legal News (“CLN”), which provides cutting edge review and analysis of individual rights, court
rulings, and news concerning criminal justice-related issues.
7.

HRDC corresponds regularly with prisoners on constitutional issues and potential

violations of their civil rights. The purpose of HRDC is to educate prisoners and the public
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about the destructive nature of racism, sexism, and the economic and social costs of prisons to
society.
8.

Defendant Darcell Williams Carter (“Carter”), on information and belief, served

as a Member and/or the Chair of the PRC during the relevant time period. In her role as a
Member of the PRC, Defendant Carter conducted independent reviews of disapproved
publications and materials that were not delivered to NCDPS prisoners. In her role as the Chair
of the PRC, Defendant Carter oversaw the PRC, serving as the final approval authority when the
PRC’s members could not come to a consensus. When the PRC decided to reject certain
publications, Defendant Carter was also responsible for notifying the relevant publisher and
prisoner of the PRC’s decision. As to all claims presented herein against her, Defendant Carter
is being sued in her official capacity for injunctive and declaratory relief, and in her individual
capacity for damages and for injunctive and declaratory relief. At all relevant times, Defendant
Carter has acted under color of state law.
9.

Defendant Erik A. Hooks (“Hooks”), on information and belief, was the Secretary

of NCDPS from January 5, 2017 through August 1, 2021. During his time as Secretary,
Defendant Hooks had ultimate responsibility for the promulgation and implementation of
NCDPS policies, procedures, and practices and for the management of NCDPS. As to all claims
presented herein against him, Defendant Hooks is being sued in his official capacity for
injunctive and declaratory relief, and in his individual capacity for damages and for injunctive
and declaratory relief. At all relevant times, Defendant Hooks has acted under color of state
law.
10.

Defendant Casandra Skinner Hoekstra (“Hoekstra”), on information and belief,

has served as the Interim Secretary of NCDPS since August 1, 2021. In this role, Defendant

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Hoekstra has ultimate responsibility for the promulgation and implementation of NCDPS
policies, procedures, and practices and for the management of NCDPS. As to all claims
presented herein against her, Defendant Hoekstra is being sued in her official capacity for
injunctive and declaratory relief, and in her individual capacity for damages and for injunctive
and declaratory relief. At all relevant times, Defendant Hoekstra has acted under color of state
law.
11.

Defendant Timothy Darryl Moose (“Moose”), on information and belief, has

served as the Chief Deputy Secretary of the Division of Adult Correction and Juvenile Justice
within NCDPS since June 2019. In this role, Defendant Moose oversees the agencies and
personnel responsible for supervising NCDPS facilities, and thus has responsibility for the
implementation of NCDPS policies, procedures, and practices. As to all claims presented herein
against him, Defendant Moose is being sued in his official capacity for injunctive and
declaratory relief, and in his individual capacity for damages and for injunctive and declaratory
relief. At all relevant times, Defendant Moose has acted under color of state law.
12.

Defendant Doug Pardue (“Pardue”), on information and belief, served as a

Member and/or the Chair of the NCDPS Publications Review Committee (“PRC”) during the
relevant time period. The PRC is the body within NCDPS that is responsible for reviewing a
publication that has been withheld from a prisoner by a Warden or a Superintendent at an
NCDPS facility and making the ultimate determination as to whether said publication may be
delivered to that prisoner. In this role, Defendant Pardue oversaw the PRC, serving as the final
approval authority when the PRC’s members could not come to a consensus. When the PRC
decided to reject certain publications, Defendant Pardue was also responsible for notifying the
relevant publisher and prisoner of the PRC’s decision. As to all claims presented herein against

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him, Defendant Pardue is being sued in his official capacity for injunctive and declaratory relief,
and in his individual capacity for damages and for injunctive and declaratory relief. At all
relevant times, Defendant Pardue has acted under color of state law.
13.

Defendant Larry Michael Dunston (“Dunston”), on information and belief, served

as a Member and/or the Chair of the PRC during the relevant time period. In his role as a
Member of the PRC, Defendant Dunston conducted independent reviews of disapproved
publications and materials that were not delivered to NCDPS prisoners. In his role as the Chair
of the PRC, Defendant Dunston oversaw the PRC, serving as the final approval authority when
the PRC’s members could not come to a consensus. When the PRC decided to reject certain
publications, Defendant Dunston was also responsible for notifying the relevant publisher and
prisoner of the PRC’s decision. As to all claims presented herein against him, Defendant
Dunston is being sued in his official capacity for injunctive and declaratory relief, and in his
individual capacity for damages and for injunctive and declaratory relief. At all relevant times,
Defendant Dunston has acted under color of state law.
14.

Defendant Garry Hubert Bleeker (“Bleeker”), on information and belief, served as

a Member and/or the Chair of the PRC during the relevant time period. In his role as a Member
of the PRC, Defendant Bleeker conducted independent reviews of disapproved publications and
materials that were not delivered to NCDPS prisoners. In his role as the Chair of the PRC,
Defendant Bleeker oversaw the PRC, serving as the final approval authority when the PRC’s
members could not come to a consensus. When the PRC decided to reject certain publications,
Defendant Bleeker was also responsible for notifying the relevant publisher and prisoner of the
PRC’s decision. As to all claims presented herein against him, Defendant Bleeker is being sued
in his official capacity for injunctive and declaratory relief, and in his individual capacity for

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damages and for injunctive and declaratory relief. At all relevant times, Defendant Bleeker has
acted under color of state law.
15.

Defendant Zachary Richard Kendall (“Kendall”), on information and belief,

served as a Member and/or the Chair of the PRC during the relevant time period. In his role as a
Member of the PRC, Defendant Kendall conducted independent reviews of disapproved
publications and materials that were not delivered to NCDPS prisoners. In his role as the Chair
of the PRC, Defendant Kendall oversaw the PRC, serving as the final approval authority when
the PRC’s members could not come to a consensus. When the PRC decided to reject certain
publications, Defendant Kendall was also responsible for notifying the relevant publisher and
prisoner of the PRC’s decision. As to all claims presented herein against him, Defendant
Kendall is being sued in his official capacity for injunctive and declaratory relief, and in his
individual capacity for damages and for injunctive and declaratory relief. At all relevant times,
Defendant Kendall has acted under color of state law.
16.

Defendant Wendy Hardy (“Hardy”), on information and belief, served as a

Member and/or the Chair of the PRC during the relevant time period. In her role as a Member of
the PRC, Defendant Hardy conducted independent reviews of disapproved publications and
materials that were not delivered to NCDPS prisoners. In her role as the Chair of the PRC,
Defendant Hardy oversaw the PRC, serving as the final approval authority when the PRC’s
members could not come to a consensus. When the PRC decided to reject certain publications,
Defendant Hardy was also responsible for notifying the relevant publisher and prisoner of the
PRC’s decision. As to all claims presented herein against her, Defendant Hardy is being sued in
her official capacity for injunctive and declaratory relief, and in her individual capacity for

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damages and for injunctive and declaratory relief. At all relevant times, Defendant Hardy has
acted under color of state law.
17.

Defendant Shane Tharrington (“Tharrington”), on information and belief, served

as a Member and/or the Chair of the PRC during the relevant time period. In his role as a
Member of the PRC, Defendant Tharrington conducted independent reviews of disapproved
publications and materials that were not delivered to NCDPS prisoners. In his role as the Chair
of the PRC, Defendant Tharrington oversaw the PRC, serving as the final approval authority
when the PRC’s members could not come to a consensus. When the PRC decided to reject
certain publications, Defendant Tharrington was also responsible for notifying the relevant
publisher and prisoner of the PRC’s decision. As to all claims presented herein against him,
Defendant Tharrington is being sued in his official capacity for injunctive and declaratory relief,
and in his individual capacity for damages and for injunctive and declaratory relief. At all
relevant times, Defendant Tharrington has acted under color of state law.
18.

Defendant NCDPS is the state agency that manages the correctional facilities

within the State of North Carolina. NCDPS is responsible for the promulgation and
implementation of policies, procedures, and practices that restrict the delivery of publications to
prisoners incarcerated in North Carolina state facilities. As to all claims presented herein,
Defendant NCDPS is being sued for injunctive and declaratory relief.
IV.

FACTUAL ALLEGATIONS
A.

19.

HRDC’S MISSION

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 engages in core protected speech and expressive conduct on matters of public concern,
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such as the operation of prison facilities, prison conditions, prisoner health and safety, and
prisoners’ rights. HRDC’s mission, if realized, has a salutary effect on public safety.
20.

In furtherance of its mission, HRDC publishes and distributes a softcover monthly

magazine titled Prison Legal News, which reports on prisons, jails, and other detention facilities,
prisoners’ rights, court rulings, management of prison facilities, prison conditions, and other
matters pertaining to the rights and interests of incarcerated individuals. The award-winning
monthly magazine is published on newsprint and is 72-pages long.
21.

In 2017, HRDC also began publishing a second monthly magazine, Criminal

Legal News. This magazine focuses on review and analysis of individual rights, court rulings,
and news concerning criminal justice-related issues. This magazine is also published on
newsprint and is 56 pages long.
22.

HRDC also publishes an Annual Report. The Annual Report provides details on

HRDC’s accomplishments from the previous year and explains the steps that HRDC is taking to
fulfill its mission.
23.

HRDC’s publications, as described above, contain political speech and social

commentary, which are core First Amendment rights and are entitled to the highest protection
afforded by the United States Constitution.
24.

HRDC’s publications have thousands of subscribers in the United States and

abroad, including prisoners, attorneys, journalists, public libraries, judges, and members of the
general public. HRDC has distributed its monthly publication to prisoners and law librarians in
more than 3,000 correctional facilities located across all 50 states, including the Federal Bureau
of Prisons and NCDPS.

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25.

Prison Legal News is popular among prisoners in NCDPS facilities. Despite

Defendants’ censorship, as of September of 2021, HRDC had 162 subscribers spread across 33
NCDPS facilities.
26.

Criminal Legal News is also quite popular among innates in NCDPS facilities.

Despite Defendants’ censorship, as of September of 2021, HRDC had 70 subscribers spread
across 23 NCDPS facilities.
27.

Additionally, in furtherance of its mission and to increase the dissemination of its

message, HRDC sends individually addressed sample copies of its publications to non-subscriber
prisoners within the NCDPS system.
B.
28.

CENSORSHIP BY THE NCDPS

The First Amendment of the United States Constitution protects HRDC’s right to

communicate with prisoners who are incarcerated within NCDPS facilities. Regulations,
policies, or practices that restrict the receipt of publications by prisoners are invalid unless they
are reasonably related to legitimate penological interests.
29.

The Fourteenth Amendment of the United States Constitution requires that

publishers receive notice of and be allowed to challenge restrictions on prisoners’ receipt of mail.
Regulations, policies, or practices that do not provide these minimum procedural safeguards are
invalid. Fourteenth Amendment rights are also violated where procedural safeguards are not
followed as applied to a particular publisher.
30.

On December 12, 2006, Joseph Urbaniak, Jr., a prisoner at North Carolina’s

Harnett Correctional Institution (“Harnett”), brought an action pursuant to 42 U.S.C. § 1983
against several officials at Harnett. See Urbaniak v. Stanley, NO. 5:06-CT-3135-FL, Order
Approving Settlement Agreement, at 2 (“Urbaniak”). Mr. Urbaniak alleged that the defendants
violated his First Amendment rights by arbitrarily and capriciously denying access to
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publications without referring to a legitimate penological interest. Mr. Urbaniak also alleged that
the defendants violated his Fourteenth Amendment rights by failing to provide Mr. Urbaniak
with the opportunity to appeal rejected publications.
31.

In connection with the resolution of the Urbaniak case by consent decree and

settlement agreement, North Carolina’s Department of Corrections (“DOC”) (which has since
been merged into the NCDPS) adopted a revised publication policy—entitled Publications
Received/Possessed by Inmates (“Publication Policy”). The consent decree provided that, among
other obligations, the “DOC must uniformly follow its written policy . . . .”
32.

Section D.0109(f) of the Publication Policy allows NCDPS to withhold

publications that “can be reasonably documented to contain . . . [t]hreats to institutional safety
and security.” These “threats to institutional safety and security” include “materials which depict,
describe or advocate or which include” among other things:


“the commission of criminal activity and/or the violation of state or federal laws
and/or the violation of the Division of Prisons policy and/or inmate disciplinary
policy and procedures” (“Reason A”);



“the manufacture, simulation and/or concealment of weapons, ammunition,
explosives, incendiaries, or escape devices and/or escape techniques” (“Reason B”);



“violence, disorder, insurrection or terrorist/gang activities against individuals,
groups, organizations, the government or any of [its] institutions” (“Reason D”);



“instructions and/or information, which may be used to alter or defeat institutional
systems of communication” (“Reason F”);



“violence against any ethnic, racial or religious group or which reasonably appears
likely to provoke or to precipitate a violent confrontation between the recipient or

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recipients or any other inmate in possession of same and a member or members of the
target group” (“Reason H”); and


“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”
(“Reason K”).

33.

Section D.0107 provides that, when a publication mailed to a prisoner is rejected,

“the publisher shall be notified in writing of the reason for rejection and the procedure to follow
to appeal the rejection . . . .” Id. at Section D.0107. Section D.0107 further states that “[i]f the
publisher appeals, the Division of Prisons will notify the publisher of the outcome of the review
within fifteen (15) days of receipt of a timely submitted written request for review.”
34.

The Defendants have administered the Publication Policy in a manner that does

not comply with the First and/or Fourteenth Amendments. Defendants’ policies and practices
have deprived and will continue to deprive HRDC of the right to distribute its materials to
prisoners, and of notice or opportunity to appeal when its publications are not delivered to
prisoner subscribers.
35.

As described in further detail below, the NCDPS has withheld issues of Prison

Legal News, Criminal Legal News, and HRDC’s Annual Report. HRDC is informed and thereon
believes that Defendants had direct knowledge of and were directly involved in each and every
instance of censorship complained of below.
36.

Prison Legal News and Criminal Legal News pose no threat to any legitimate

penological interests. However, in numerous instances NCDPS officials erroneously rejected
issues of Prison Legal News and Criminal Legal News, on the grounds that the content of the
magazines violated Section D.0109(f) of the Publication Policy.

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37.

Between January 2019 and August 2021, the NCDPS censored 15monthly issues

of Prison Legal News, five monthly issues of Criminal Legal News, and HRDC’s 2017 and 2019
Annual Reports. See Exhibit A (Summary of Improper Censorship).
38.

On at least two occasions, NCDPS failed to comply with Section D.0107 of the

Publication Policy by failing to provide any notice to HRDC that one of its publications mailed
to a prisoner had been rejected.
39.

Further, on 13 occasions, NCDPS failed to comply with Section D.0107 of the

Publication Policy by simply ignoring HRDC’s appeals of the Department’s decisions and failing
to notify HRDC of the outcome of these appeals within the allotted time.
40.

HRDC is aware of at least the following specific examples of improper censorship

and/or lack of due process by the NCDPS:
Censorship of Prison Legal News
41.

HRDC is informed and believes and thereon alleges that prisoner subscribers

incarcerated in NCDPS facilities did not receive 15 issues of Prison Legal News.
42.

HRDC is informed and believes and thereon alleges that NCDPS officials

prevented prisoners at NCDPS facilities from receiving the December 2018, January 2019,
December 2019, February 2020, April 2020, June 2020, July 2020, August 2020, September
2020, October 2020, November 2020, December 2020, April 2021, May 2021, and June 2021
issues of Prison Legal News. HRDC is informed and believes that, although each of those issues
was properly delivered to NCDPS facilities, the issues were withheld from delivery by NCDPS
officials.
43.

On January 23, 2019, NCDPS mailed HRDC a letter notifying HRDC that the

December 2018 issue of Prison Legal News was “disapproved for delivery to the inmate.”

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According to the letter, pages one through four of this issue violated Section D.0109(f) by virtue
of Reason A.
44.

None of the content of the pages cited in the January 23, 2019 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained a portion of an article about censorship in prisons and jails and HRDC’s
litigation efforts to combat this censorship. These pages also contained a notice for HRDC’s
2018 fundraiser, which highlights HRDC’s accomplishments from the last year.
45.

On February 25, 2019, HRDC received a letter from an individual incarcerated at

NCDPS’ Marion Correctional Institution. The letter contained a notice that NCDPS had
provided to the individual explaining that the January 2019 issue of Prison Legal News had been
disapproved. At no point did HRDC receive a letter from NCDPS informing HRDC of the
decision to disapprove the January 2019 issue of Prison Legal News.
46.

According to the letter that this individual received, NCDPS claimed that pages

50, 51, 53, 54, and 56 of this issue violated Section D.0109(f) of the Publication Policy by virtue
of Reason A.
47.

None of the content of the pages cited in the February 25, 2019 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained articles factually describing investigations into lawsuits stemming from,
and prisoner reports of, prison official misconduct.
48.

On January 24, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

December 2019 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, pages 1 and 28 of this issue violated Section D.0109(f) by virtue of
Reason D.

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49.

None of the content of the pages cited in the January 24, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained an article about the insufficient educational resources at a Florida prison
and a factual description of an incident at an Ohio prison.
50.

HRDC appealed NCDPS’ decision to censor the December 2019 issue of Prison

Legal News. However, NCDPS never responded to this appeal.
51.

On February 26, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

February 2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, page 46 of this issue violated Section D.0109(f) by virtue of Reason B.
52.

None of the content of the page cited in the February 26, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
this page contained a factual description of a documentary about the conditions at a certain
facility and the extreme precautions prisoners at that facility must undertake to protect
themselves in light of the general indifference of prison officials.
53.

HRDC appealed NCDPS’ decision to censor the February 2020 issue of Prison

Legal News. However, NCDPS never responded to this appeal.
54.

On May 15, 2020, NCDPS mailed HRDC a letter notifying HRDC that the April

2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, page 54 of this issue violated Section D.0109(f) by virtue of Reason K.
55.

None of the content of the cited page can reasonably be considered to contain

threats to NCDPS’ institutional safety and security. Instead, this page contained an article
factually describing a lawsuit against a correctional facility for the negligent supervision of its
juvenile prisoners.

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56.

HRDC appealed NCDPS’ decision to censor the April 2020 issue of Prison Legal

News. However, NCDPS never responded to this appeal.
57.

On August 5, 2020, NCDPS mailed HRDC a letter notifying HRDC that the June

2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, pages 23, 31, and 38 of this issue violated Section D.0109(f) by virtue of Reason D.
58.

None of the content of the pages cited in the August 5, 2020 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security.
59.

HRDC appealed NCDPS’ decision to censor the June 2020 issue of Prison Legal

News. However, NCDPS never responded to this appeal.
60.

On August 20, 2020, NCDPS mailed HRDC a letter notifying HRDC that the July

2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, page 20 of this issue violated Section D.0109(f) by virtue of Reason D.
61.

None of the content of the page cited in the August 20, 2020 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security.
62.

On October 19, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

September 2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, page 19 of this issue violated Section D.0109(f) by virtue of Reason D.
63.

None of the content of the page cited in the October 19, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security.
64.

HRDC appealed NCDPS’ decision to censor the September 2020 issue of Prison

Legal News. However, NCDPS never responded to this appeal.

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65.

On December 10, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

November 2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, page 26 of this issue violated Section D.0109(f) by virtue of Reason A.
66.

None of the content of the page cited in the December 10, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
this page contained an article factually describing an investigation that concluded that
correctional officers consented to and assisted with assaults carried out against prisoners.
67.

HRDC appealed NCDPS’ decision to censor the November 2020 issue of Prison

Legal News. However, NCDPS never responded to this appeal.
68.

On February 8, 2021, NCDPS mailed HRDC a letter notifying HRDC that the

December 2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, pages 14-17 of this issue violated Section D.0109(f) by virtue of Reason
A.
69.

None of the content of the pages cited in the February 8, 2021 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained an article factually describing a death in custody and other potential incustody deaths. They also contained an article that factually described a negligence suit for
failure to protect a prisoner.
70.

On February 24, 2021, NCDPS mailed HRDC a second letter notifying HRDC of

the rejection of the December 2020 issue of Prison Legal News. This letter once again failed to
specify the threat that this article posed to NCDPS’ institutional safety and security.
71.

HRDC appealed NCDPS’ decision to censor the December 2020 issue of Prison

Legal News. The NCDPS responded to the appeal, upholding the decision to reject that issue.

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72.

On February 24, 2021, NCDPS mailed HRDC a letter notifying HRDC that the

October 2020 issue of Prison Legal News had been “disapproved for delivery to the inmate.”
According to the letter, page 44 of this issue violated Section D.0109(f) by virtue of Reason F.
73.

None of the content of page cited in the February 24, 2021 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security. The letter appears
to be referring to page 42, which contained an article factually describing a lawsuit against prison
officials arising out of an incident at a California correctional facility.
74.

HRDC appealed NCDPS’ decision to censor the October 2020 issue of Prison

Legal News. However, NCDPS never responded to this appeal.
75.

On June 10, 2021, NCDPS mailed HRDC a letter notifying HRDC that the April

2021 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, page 28 of this issue violated Section D.0109(f) by virtue of Reason H.
76.

None of the content of the page cited in the June 10, 2021 letter can reasonably be

considered to contain threats to NCDPS’ institutional safety and security. Instead, this page
contained an article about a woman who gave birth in a jail cell and an article about bans on
Christmas cards in prison.
77.

HRDC appealed NCDPS’ decision to censor the April 2021 issue of Prison Legal

News. However, NCDPS never responded to this appeal.
78.

On July 16, 2021, NCDPS mailed HRDC a letter notifying HRDC that the June

2021 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, page 38 of this issue violated Section D.0109(f) by virtue of Reason D.
79.

None of the content of the page cited in the July 16, 2021 letter can reasonably be

considered to contain threats to NCDPS’ institutional safety and security. Instead, this page

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contained: (1) an article about a proposal to rename certain prisons after individuals that owned
slaves and leased convict laborers, and (2) an article factually describing North Carolina’s use of
solitary confinement in its prisons.
80.

On August 9, 2021, NCDPS mailed HRDC a second letter notifying HRDC of the

rejection of the June 2021 issue of Prison Legal News. This letter once again failed to specify the
threat that this article posed to NCDPS’ institutional safety and security.
81.

HRDC appealed NCDPS’ decision to censor the June 2021 issue of Prison Legal

News. However, NCDPS never responded to this appeal.
82.

On August 9, 2021, NCDPS mailed HRDC a letter notifying HRDC that the May

2021 issue of Prison Legal News had been “disapproved for delivery to the inmate.” According
to the letter, pages nine and 11 of this issue violated Section D.0109(f) by virtue of Reason D.
83.

None of the content of the pages cited in the August 9, 2021 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security. Instead, these pages
contained an article about the mass incarceration industry.
84.

HRDC appealed NCDPS’ decision to censor the May 2021 issue of Prison Legal

News. However, NCDPS never responded to this appeal.
85.

On information and belief, on or around August 24, 2020, NCDPS notified one or

more prisoners that the August 2020 issue of Prison Legal News had been disapproved for
delivery. According to the notice, page 36 of the August 2020 issue violated Section D.0109(f)
by virtue of Reason D.
86.

On information and belief, NCDPS did not send HRDC a letter informing HRDC

of the decision to disapprove the August 2020 issue of Prison Legal News.

-18Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 18 of 27

87.

None of the content of the page cited in the August 24, 2020 notice can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
this page contained an article describing the treatment of an Alabama prisoner who was denied
proper medical care by prison staff and the staff’s subsequent indictment for manslaughter.
88.

The censorship of the material as described in the foregoing paragraphs 41-87 is

not reasonably related to a legitimate penological interest.
89.

Defendants’ censorship of Prison Legal News, failure to provide adequate

explanation of their decisions to censor Prison Legal News, and failure to respond and provide an
explanation with regard to each of HRDC’s appeals of the Defendants’ decisions to censor
Prison Legal News violates HRDC’s First and Fourteenth Amendment rights.
Censorship of Criminal Legal News
90.

HRDC is informed and believes and thereon alleges that prisoner subscribers

incarcerated in NCDPS facilities did not receive five issues of Criminal Legal News.
91.

HRDC is informed and believes and thereon alleges that NCDPS officials

prevented prisoners at NCDPS facilities from receiving the December 2018, August 2020,
September 2020, December 2020, and January 2021 issues of Criminal Legal News. HRDC is
informed and believes that, although each of these issues was properly delivered to NCDPS
facilities, the issues were withheld from delivery by NCDPS officials.
92.

On February 22, 2019, NCDPS mailed HRDC a letter notifying HRDC that the

December 2018 issue of Criminal Legal News had been “disapproved for delivery to the
inmate.” According to the letter, pages 17 and 28 of this issue violated Section D.0109(f) by
virtue of Reason D.

-19Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 19 of 27

93.

None of the content of the pages cited in the February 22, 2019 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained articles factually describing the deaths of individuals at hands of police
officers and allegations of prosecutorial misconduct in death penalty cases.
94.

On September 2, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

August 2020 issue of Criminal Legal News had been “disapproved for delivery to the inmate.”
According to the letter, pages 1 and 3 of this issue violated Section D.0109(f) by virtue of
Reason D.
95.

None of the content of the pages cited in the September 2, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained an article about activism against police brutality in 2020.
96.

On October 22, 2020, NCDPS mailed HRDC a letter notifying HRDC that the

September 2020 issue of Criminal Legal News had been “disapproved for delivery to the
inmate.” According to the letter, pages 1 and 3-8 of this issue violated Section D.0109(f) by
virtue of Reason D.
97.

None of the content of the pages cited in the October 22, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained an article about police violence and the need for reform.
98.

HRDC appealed NCDPS’ decision to censor the September 2020 issue of

Criminal Legal News. However, NCDPS never responded to this appeal.
99.

On February 19, 2021, NCDPS mailed HRDC a letter notifying HRDC that the

January 2021 issue of Criminal Legal News had been “disapproved for delivery to the inmate.”

-20Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 20 of 27

According to the letter, pages one and three of this issue violated Section D.0109(f) by virtue of
Reason D.
100.

None of the content of the pages cited in the February 19, 2021 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
these pages contained an article about the power of police unions.
101.

HRDC appealed NCDPS’ decision to censor the January 2021 issue of Criminal

Legal News. However, NCDPS never responded to this appeal.
102.

On March 18, 2021, NCDPS mailed HRDC a letter notifying HRDC that the

December 2020 issue of Criminal Legal News had been “disapproved for delivery to the
inmate.” According to the letter, page 24 of this issue violated Section D.0109(f) by virtue of
Reason D.
103.

None of the content of the page cited in the March 18, 2021 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security. Instead, this page
contained an article about wrongful convictions stemming from prosecutorial misconduct.
104.

HRDC appealed NCDPS’ decision to censor this issue. However, NCDPS never

responded to this appeal.
105.

On information and belief, officials in at least one NCDPS facility, the Nash

Correctional Institution, which is located in this judicial district, have implemented a
presumptive ban on the delivery of Criminal Legal News altogether and/or otherwise
discouraged prisoners from subscribing to Criminal Legal News.
106.

The censorship of the material as described in the foregoing paragraphs 90-105 is

not reasonably related to a legitimate penological interest.

-21Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 21 of 27

107.

Defendants’ censorship of Criminal Legal News, failure to provide adequate

explanation of their decisions to censor Criminal Legal News, and failure to respond and provide
an explanation with regard to each of HRDC’s appeals of the Defendants’ decisions to censor
Criminal Legal News violates HRDC’s First and Fourteenth Amendment rights.
Censorship of HRDC’S Annual Report
108.

HRDC is informed and believes and thereon alleges that the NCDPS censored

HRDC’s 2017 Annual Report, which was individually addressed and mailed to the subscribers
incarcerated in NCDPS’ facilities.
109.

On January 3, 2019, NCDPS mailed HRDC a letter notifying HRDC that HRDC’s

2017 Annual Report had been “disapproved for delivery to the inmate.” According to the letter,
page 39 of HRDC’s 2017 Annual Report violated Section D.0109(f) by virtue of Reason D.
110.

None of the content of the page cited in the January 3, 2019 letter can reasonably

be considered to contain threats to NCDPS’ institutional safety and security. Instead, this page
contained an article about a prisoner who makes birthday cakes.
111.

On December 17, 2020, NCDPS mailed HRDC a letter notifying HRDC that

HRDC’s 2019 Annual Report had been “disapproved for delivery to the inmate.” According to
the letter, pages 23 and 32 of HRDC’s 2019 Annual Report violated Section D.0109(f) by virtue
of Reason D.
112.

None of the content of the pages cited in the December 17, 2020 letter can

reasonably be considered to contain threats to NCDPS’ institutional safety and security. Instead,
HRDC’s 2019 Annual Report does not contain a “page 32,” while page 23 discusses two
consumer class action cases regarding jail-issued debit cards.

-22Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 22 of 27

113.

The censorship of the material as described in the foregoing paragraphs 108-112

is not reasonably related to a legitimate penological interest.
114.

This censorship of HRDC’s 2017 and 2019 Annual Reports and the failure of

Defendants to provide adequate explanation to HRDC violates HRDC’s First and Fourteenth
Amendment rights.
****
115.

In adopting and implementing the above censorship policies and practices, and in

failing to follow the Publication Policy that NCDPS has in place, Defendants have knowingly
violated, continue to violate, and are reasonably expected to violate in the future, HRDC’s
constitutional rights.
116.

Defendants’ unconstitutional policies and practices have caused HRDC serious

and irreparable harm including, but not limited to: suppression of its political message and
speech; frustration of its organizational mission; loss of its ability to recruit new supporters,
subscribers, and writers; loss of subscriptions and customers; loss of opportunities for purchases
and sales of its publications; and diversion of its resources. Absent intervention by this Court,
these actions will continue and HRDC will be subjected to a continuation of the same irreparable
and serious injuries.
117.

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

publication and censorship policies, practices, and customs adopted or approved by Defendants.
118.

The individual Defendants named herein are responsible for, or personally

participated in, creating and implementing these unconstitutional publication and censorship
policies, practices, and customs, for improperly denying the appeals of the censorship of

-23Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 23 of 27

HRDC’s publications, and for training and supervising the NCDPS staff who carry out these
policies and whose conduct has injured and continues to injure HRDC.
119.

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

continue to violate HRDC’s rights, and as such HRDC has no adequate remedy at law.
120.

HRDC is entitled to declaratory and injunctive relief prohibiting Defendants from

refusing to deliver or refusing to allow delivery of HRDC’s books and magazines and prohibiting
Defendants from censoring HRDC’s publications without due process of law.
121.

As a result of the foregoing, HRDC seeks compensatory and punitive damages

against the individual Defendants.
COUNT I
Violation of the First Amendment (Censorship)
42 U.S.C. § 1983
122.

HRDC re-alleges and incorporates by reference herein the allegations of

Paragraphs 1 through 121 as if fully set forth herein.
123.

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

Amendment of the United States Constitution.
124.

HRDC has a constitutionally protected liberty interest in communicating with

incarcerated individuals, a right clearly established under existing case law.
125.

The conduct of Defendants was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of
others.
126.

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

proximately caused by the policies and practices of Defendants, which were and are the moving
force of the violations.

-24Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 24 of 27

127.

Defendants’ acts described above have caused damages to HRDC, and if not

enjoined, will continue to cause damage to HRDC.
128.

HRDC seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants. HRDC seeks punitive damages against the individual
Defendants in their individual capacities.
COUNT II
Violation of the Fourteenth Amendment (Due Process)
42 U.S.C. § 1983
129.

HRDC re-alleges and incorporates by reference herein the allegations of

Paragraphs 1 through 128 as if fully set forth herein.
130.

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

Fourteenth Amendment to the United States Constitution.
131.

Because HRDC has a liberty interest in communicating with prisoners, HRDC has

a right under the Due Process Clause of the Fourteenth Amendment to receive notice of and an
opportunity to appeal Defendants’ decisions to censor their written speech.
132.

Defendants’ policies and practices fail to provide HRDC with adequate notice and

an opportunity to be heard. NCDPS has also failed to follow its own policy by failing to provide
an explanation of NCDPS’ decisions with regard to HRDC’s appeals of NCDPS’ censorship.
133.

The conduct of Defendants was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of
others.
134.

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

proximately caused by the policies and practices of Defendants, which are and were the moving
force of the violations.

-25Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 25 of 27

135.

Defendants’ acts described above have caused damages to HRDC, and if not

enjoined, will continue to cause damage to HRDC.
136.

HRDC seeks declaratory and injunctive relief against NCDPS, and declaratory

and injunctive relief and nominal and compensatory damages against all remaining Defendants.
HRDC seeks punitive damages against the individual Defendants in their individual capacities.
RELIEF REQUESTED
WHEREFORE, the Plaintiff respectfully requests judgment against Defendants, jointly
and severally, for the following:
A.

A declaration that Defendants’ policies and practices violate the
Constitution;

B.

A preliminary and permanent injunction preventing Defendants from continuing
to violate the Constitution, and providing other equitable relief;

C.

Nominal damages for each violation of HRDC’s rights by the Defendants;

D.

Compensatory damages in an amount to be proved at trial;

E.

Punitive damages against the individual Defendants in an amount to be proved at
trial;

F.

An award of full costs and attorneys’ fees arising out of this litigation, under 42
U.S.C. § 1988 and other applicable law; and

G.

Any and other further relief this Court may deem just and appropriate.

-26Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 26 of 27

DEMAND FOR JURY
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, HRDC hereby demands a
trial by jury in this action of all issues so triable.

October 17, 2022
Respectfully submitted,
HUMAN RIGHTS DEFENSE CENTER
By:

/s/ Ari S. Meltzer______
Ari S. Meltzer (pro hac vice)
Kyle M. Gutierrez (pro hac vice)
WILEY REIN LLP
2050 M Street NW
Washington, DC 20036
(202) 719-7000
ameltzer@wiley.law
kgutierrez@wiley.law
Elizabeth Simpson
EMANCIPATE NC
NC State Bar # 41596
P.O. Box 309
Durham, NC 27702
elizabeth@emancipatenc.org
(919) 682-1149
Daniel Marshall (pro hac vice)
Fla. Bar #617210
Jesse W. Isom (pro hac vice)
Fla. Bar #98588
Hara Fischbein (pro hac vice, to be filed)
Fl. Bar #1032775
HUMAN RIGHTS DEFENSE CENTER
P.O. Box 1151
Lake Worth, FL 33460
(561) 360-2523
dmarshall@humanrightsdefensecenter.org
jwisom@humanrightsdefensecenter.org
hfischbein@humanrightsdefensecenter.org

-27Case 5:21-cv-00469-FL Document 35 Filed 10/17/22 Page 27 of 27