Prison Legal News v. Corrections Corporation of America, Censorship Complaint, Arizona, 2009

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SANFORD JAY ROSEN – Cal. Bar No. 62566*
BLAKE THOMPSON – Cal. Bar No. 255600*
ROSEN, BIEN & GALVAN, LLP
315 Montgomery Street, 10th Floor
San Francisco, California 94104-1823
Telephone: (415) 433-6830
Facsimile: (415) 433-7104
Email:
srosen@rbg-law.com

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DANIEL J. POCHODA – Ariz. Bar. No 021979
ACLU FOUNDATION OF ARIZONA
77 East Columbus Street, Suite 205
Phoenix, Arizona 85012
Telephone: (602) 650-1854
Email:
dpochoda@acluaz.org

DANIEL E. MANVILLE – Mich. Bar No. P39731*
DANIEL E. MANVILLE P.C.
Post Office Box 20321
Ferndale, Michigan 48220-0321
Telephone: (248) 890-4720
Facsimile: (248) 556-5598
Email:
daniel.manville@gmail.com

* Pro Hac Vice Application to be filed

Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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PRISON LEGAL NEWS, a project of the Human
Rights Defense Center, a Washington non-profit
charitable corporation,

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Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA, a Maryland corporation; DAREN
SWENSON, CCA Regional Director of
Operations; TODD THOMAS, Warden, Saguaro
Correctional Center; BEN GRIEGO, Assistant
Warden, Saguaro Correctional Center; MARCO
LOPEZ, Chief of Security, Saguaro Correctional
Center; and DOES 1-100, inclusive,

Case No.
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF AND
DAMAGES FOR VIOLATIONS OF THE
UNITED STATES AND ARIZONA
CONSTITUTIONS; SUMMONS
JURY TRIAL DEMAND

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Defendants.
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[297107-10]

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
UNITED STATES AND ARIZONA CONSTITUTIONS; SUMMONS - CASE NO.

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INTRODUCTION
1.

Plaintiff PRISON LEGAL NEWS brings this civil rights action against Defendants

pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the Arizona Constitution to enjoin

Defendants from barring prisoners from receiving books and publications sent to them by

Plaintiff, and for damages. Plaintiff alleges that Defendants’ actions violate its rights under the

First and Fourteenth Amendments to the United States Constitution as well as the Arizona

Constitution, and seeks damages to be proven at trial, and injunctive and declaratory relief.

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JURISDICTION AND VENUE
2.

This lawsuit is brought pursuant to 42 U.S.C. Section 1983 against all Defendants

for actions under color of state law in violation of the First and Fourteenth Amendments to the

United States Constitution, and pursuant to Sections 4, 6, and 13 of Article 2 of the Arizona

Constitution. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3)

to redress deprivation, under color of law, of rights secured by the Constitution of the United

States. The Court may exercise supplemental jurisdiction over Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367. This Court is authorized to grant declaratory relief pursuant to 28

U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57, and is further empowered to grant injunctive

relief pursuant to Fed. R. Civ. P. 65.

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This Court also has diversity jurisdiction under 28 U.S.C. § 1332, in that this action

involves citizens of different states and involves an amount in controversy of more than $75,000.
4.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because a

substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this

district.

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THE PARTIES
5.

Plaintiff PRISON LEGAL NEWS (“PLN”) is a project of the Human Rights

Defense Center, a non-profit, charitable Washington state corporation that is tax-exempt under

IRS Code § 501(c)(3) with its office in Seattle, Washington. Plaintiff publishes a monthly

journal titled Prison Legal News, and also publishes, sells, and distributes books on a variety of

criminal justice, human rights, and self-help issues. PLN has approximately 7,000 subscribers in
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
UNITED STATES AND ARIZONA CONSTITUTIONS; SUMMONS - CASE NO.

all fifty states and abroad. Approximately eighty (80) percent of PLN subscribers are state and

federal prisoners.

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Defendant CORRECTIONS CORPORATION OF AMERICA (“CCA”) is a

Maryland corporation with its corporate headquarters in Nashville, Tennessee.
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Defendant CCA, at all pertinent times mentioned herein, was a company doing

business in the state and District of Arizona and performing the traditionally and uniquely state

governmental function of operating the Saguaro Correctional Center (“Saguaro”), a prison,

through contractual relationships with the State of Hawaii and the State of Washington.

Defendant DAREN SWENSON is the Managing Director of Division VII for

CCA. In that role, Mr. Swenson is responsible for overseeing the operations at CCA’s six

Arizona facilities. Mr. Swenson has been in that role since February 2008. Mr. Swenson was

also the Warden of the Saguaro Correctional Center from January 2007 to January 2008.

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Defendant TODD THOMAS, at all pertinent times mentioned herein, was an

employee of CCA and the Warden of the Saguaro Correctional Center.
10.

Defendant BEN GRIEGO, at all pertinent times mentioned herein, was an

employee of CCA and the Assistant Warden of the Saguaro Correctional Center.
11.

Defendant MARCO LOPEZ, at all pertinent times mentioned herein, was an

employee of CCA and the Chief of Security at the Saguaro Correctional Center.
12.

Plaintiff is ignorant of the true names and capacities of Defendants sued herein as

DOES 1 through 100, and therefore sues said Defendants by such fictitious names. Plaintiff is

informed and believes and therefore alleges on information and belief, that each of them is

responsible in some manner for the injuries and damages alleged herein. Plaintiff therefore sues

DOES 1 through 100, by such fictitious names and will seek leave to amend this complaint to

add their true names and capacities when the same have been ascertained.

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13.

At all relevant times, all Defendants were acting under color of state law, pursuant

to their authority as officials, agents, contractors or employees of state governmental agencies.
14.

At all relevant times, Defendants SWENSON, THOMAS, GRIEGO and LOPEZ

were acting within the scope of their employment as agents and employees of CCA.
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
UNITED STATES AND ARIZONA CONSTITUTIONS; SUMMONS - CASE NO.

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Plaintiff is informed and believes, and on that basis alleges, that each Defendant

acted in concert with and as an agent of each other Defendant.

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FACTS
16.

At all relevant times, CCA has operated the Saguaro Correctional Center in Eloy,

Arizona. This facility houses prisoners from Hawaii and the state of Washington pursuant to

contracts with each state.

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Plaintiff publishes a monthly journal, Prison Legal News, and also distributes

books and other materials pertaining to the legal rights of prisoners and the conditions affecting

them. The monthly journal comprises writings from legal scholars, attorneys, prisoners and

news wire services. Each issue of the journal contains articles on recent court decisions, as well

as practical advice for prisoners on how to litigate and otherwise protect their legal rights. The

journal also includes regular columns designed to assist prisoners who are not represented by

counsel, including “Habeas Hints” and “Pro Se Tips and Tactics.”

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PLN’s purpose, as stated in its Articles of Incorporation, Article III, Part 6, is “to

educate prisoners and the public about the destructive nature of racism, sexism, and the economic

and social costs of prisons to society.”

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Plaintiff’s communications with prisoners constitute speech on matters of public

concern, and are thus entitled to the highest degree of protection under the First Amendment to

the Constitution of the United States and under Article 2, Section 6 of the Arizona Constitution.

20.

Plaintiff currently has, and at all relevant times has had, numerous paid subscribers

who are prisoners in the custody of Saguaro. Approximately forty current subscribers to Prison

Legal News now reside at the Saguaro Correctional Center. A one-year print subscription costs

$24 for individuals who are incarcerated and $30 for individuals who are not incarcerated.

21.

Plaintiff is informed and believes that CCA policy and practice provides that the

Warden, or his designee, is responsible for reviewing publications to determine if they are

approved for delivery to prisoners.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
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22.

Plaintiff is informed and believes that Warden Thomas, Assistant Warden Griego

and Chief of Security Lopez all participated directly in implementing mail policies and practices.

On occasion, all three have signed paperwork denying challenges to mail policies or practices.

23.

Plaintiff has received numerous complaints from prisoners whose receipt of books

from Plaintiff has been blocked, or imminently will be blocked, pursuant to Saguaro’s censorship

policies. In 2008 and 2009, at least six Saguaro prisoners were prohibited from receiving books

sent to them by Plaintiff.

24.

On February 6, 2009, Plaintiff mailed a letter and a book to Saguaro prisoner

Damien Serrano through the United States Postal Service. Plaintiff has a delivery confirmation

slip that verifies that the package was delivered. On February 18, 2009, Mr. Serrano received a

notice titled “Correspondence/Package/Contraband Denial Form” stating that he had received

correspondence from Plaintiff that was being denied. On the form, under “reasons for denial,”

the box was checked for “other material which would, if communicated, create a serious danger

to the security of the facility.” A handwritten note stated that this was an “unauthorized book

from unapproved vendor.” Saguaro neither notified Plaintiff that the book had been censored nor

returned the book to Plaintiff. On information and belief, the book was destroyed by Saguaro

personnel.

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On February 6, 2009, Plaintiff mailed a letter and a book to Saguaro prisoner

Jefferson Pau through the United States Postal Service. Plaintiff has a delivery confirmation slip

that verifies that the package was delivered. On February 18, 2009, Mr. Pau received a notice

titled “Correspondence/Package/Contraband Denial Form” stating that he had received

correspondence from Plaintiff that was being denied. On the form, under “reasons for denial,”

the box was checked for “other material which would, if communicated, create a serious danger

to the security of the facility.” A handwritten note below stated “book not allowed also from

unapproved vendor.” Saguaro neither notified Plaintiff that the book had been censored nor

returned the book to Plaintiff. On information and belief, the book was destroyed by Saguaro

personnel.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
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26.

On February 6, 2009, Plaintiff mailed a letter and a book to Saguaro prisoner

Wendell Jenkins through the United States Postal Service. Plaintiff has a delivery confirmation

slip that verifies that the package was delivered. On February 18, 2009, Mr. Jenkins received a

notice titled “Correspondence/Package/Contraband Denial Form” stating that he had received

correspondence from Plaintiff that was being denied. On the form, under “reasons for denial,”

the box was checked for “other material which would, if communicated, create a serious danger

to the security of the facility.” A handwritten note stated that this was an “unauthorized book

from unapproved vendor.” Saguaro neither notified Plaintiff that the book had been censored nor

returned the book to Plaintiff. On information and belief, the book was destroyed by Saguaro

personnel.

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On February 6, 2009, Plaintiff mailed a letter and a book to Saguaro prisoner

Joseph Menor through the United States Postal Service. Plaintiff has a delivery confirmation slip

that verifies that the package was delivered. On February 18, 2009, Mr. Menor received a notice

titled “Correspondence/Package/Contraband Denial Form” stating that he had received

correspondence from Plaintiff that was being denied. On the form, under “reasons for denial,”

the box was checked for “other material which would, if communicated, create a serious danger

to the security of the facility.” A handwritten note stated that this was an “unauthorized book

from unapproved vendor.” Saguaro neither notified Plaintiff that the book had been censored nor

returned the book to Plaintiff. On information and belief, the book was destroyed by Saguaro

personnel.

28.

On November 24, 2008, Plaintiff mailed a letter and a book to Saguaro prisoner

Edmund Abordo through the United States Postal Service. Plaintiff has a delivery confirmation

slip that verifies that the package was delivered. Mr. Abordo never received the book. Saguaro

neither notified Plaintiff that the book had been censored nor returned the book to Plaintiff. On

information and belief, the book was destroyed by Saguaro personnel.

29.

On May 1, 2008, Plaintiff mailed a book to Saguaro prisoner Michael Samson

through the United States Postal Service. Plaintiff has a delivery confirmation slip that verifies

that the package was delivered. Mr. Samson never received the book. Saguaro neither notified
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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
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Plaintiff that the book had been censored nor returned the book to Plaintiff. On information and

belief, the book was destroyed by Saguaro personnel.

30.

In March 2008, Plaintiff mailed an order of books to Saguaro prisoner Keola Kanae

through the United States Postal Service. The books arrived at Saguaro on March 10, 2008.

Mr. Kanae was told by Saguaro staff he could not receive the books because Plaintiff was not an

approved vendor. Mr. Kanae eventually received his books in April 2008, but Mr. Kanae was

told by Saguaro staff that he could not order books from Plaintiff in the future because Plaintiff

was not an approved vendor.

31.

On December 25, 2007, Saguaro prisoner Joseph Menor attempted to order a two-

year subscription to Plaintiff’s monthly publication, Prison Legal News. When he filled out the

“Release of Funds Authorization and Approval” Form requesting the release of $36 for his

subscription, his request was denied. The January 3, 2008 denial stated that Prison Legal News

was “not an approved vendor.”

32.

Plaintiff is informed and believes, and thereon alleges, that CCA policy and

practice has no provision for notice to the sender when mail is rejected. Defendants have never

provided Plaintiff with notice that any of its books or publications mailed to prisoners at Saguaro

have been withheld from prisoners, nor have Defendants provided Plaintiff with any opportunity

to be heard.

33.

Defendants’ actions, policies, regulations, and practices limiting the distribution of

Plaintiff’s books and publications to Saguaro prisoners through the United States mail are not

reasonably related to legitimate penological interests in that (1) they are not rationally related to a

legitimate and neutral governmental objective; (2) there are no alternative avenues that remain

open to Plaintiff to exercise its rights under the United States Constitution and the Arizona

Constitution to ensure that Saguaro prisoners receive its books and publications; (3)

accommodating Plaintiff’s First Amendment and Arizona Constitutional rights will have no

adverse impact on personnel, prisoners, or the allocation of public resources; and (4) ready

alternatives exist for Defendants to protect any legitimate interests.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE
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34.

Plaintiff is informed and believes, and thereon alleges, that CCA policy and

practice at Saguaro also prohibits prisoners from ordering and/or receiving books and

publications from vendors other than Barnes & Noble for any book that Barnes & Noble carries.

Plaintiff is informed and believes, and thereon alleges, that CCA policy recently changed to

allow Saguaro prisoners to order and receive a book from Amazon.com if a book is not available

from Barnes & Noble. Plaintiff’s books and publications are not sold or distributed through

Barnes & Noble, Amazon.com, or any other commercial source. Because PLN often distributes

books and publications to indigent prisoners at no cost to the prisoners, distributing books

through Barnes & Noble, Amazon.com, or another source would not be possible. CCA’s book

ordering policy is not reasonably related to a legitimate penological interest, but instead is an

exaggerated response by prison officials where other ready alternatives exist.

35.

Plaintiff is informed and believes, and thereon alleges, that CCA policy and

practice complained of herein also prohibits prisoners from ordering and receiving hardcover

books and publications. Some of the books that Plaintiff distributes are hardcover books. CCA’s

prohibition of hardcover books is not reasonably related to a legitimate penological interest and

is an exaggerated response by prison officials where other ready alternatives exist.

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Plaintiff is informed and believes, and thereon alleges, that CCA policy and

practice for Saguaro prisoners prohibits prisoners from receiving gift publications. Plaintiff

sometimes distributes books and publications to prisoners free of charge. This ban on gift

publications also does not allow friends and family members to order books and magazines on

behalf of prisoners. CCA’s gift publication policy and practice is not reasonably related to a

legitimate penological interest, but instead is an exaggerated response by prison officials where