Prison Legal News v. Schumacher, Amended Complaint, Oregon DOC Censorship 2002

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MARC D. BLACKMAN
RANSOM BLACKMAN LLP
1001 S.W. Fifth Street, Suite 1400
Portland, OR 97204
(503) 228-0487 (telephone)
(503) 227-5984 (facsimile)
marc@ransomblackman.com
OSB No. 73033
MICHAEL W. GENDLER
BRICKLIN & GENDLER, LLP
1424 Fourth Avenue, Suite 1015
Seattle, WA 98101-2217
(206) 621-8868 (telephone)
(206) 621-0512 (facsimile)
gendler@bricklin-gendler.com
=
WSBA No. 8429
Attorneys for Plaintiff Prison Legal News
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

PRISON LEGAL NEWS, a Washington nonprofit organization,
Plaintiff,

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DAVID SCHUMACHER, individually and in
his official capacity as Rules/Compliance
Manager of the Oregon Department of
Corrections, DAVID S. COOK, individually
and in his official capacity as Director of the
Oregon Department of Corrections, BEN DE
HAAN, individually and in his official capacity
as Director of the Oregon Department of
Corrections, RICH HOLDER, individually and
in his official capacity as Mail Operations
Administrator of the Oregon Department of
Corrections, and JACY DURAN, individually
and in her official capacity as Mail Operations
Administrator of the Oregon Department of
Corrections,
Defendants.

Case No.

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FIRST
AMENDED
AND
SUPPLEMENTAL COMPLAINT FOR
INJUNCTIVE RELIEF, DAMAGES,
PUNITIVE DAMAGES, AND
ATTORNEYS' FEES AND COSTS
DEMAND FOR JURY TRIAL

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Law Offices of
MICHAEL W. GENDLER, PLLC
SUITE 1015 FOURTH AND PIKE BUILDING
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SEATTLE, WA 98101
(206) 621·8868

For its first amended and supplemental complaint, plaintiff Prison Legal News
(hereafter "plaintiff') alleges as follows:

I.
INTRODUCTION AND NATURE OF THE CASE

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This is a civil rights action brought pursuant to 42 U.S.C. § 1983 and the First,

Fifth, and Fourteenth Amendments to the United States Constitution to secure the rights of

a non-profit organization to communicate freely with persons incarcerated within the State

ofOregon and under the jurisdiction ofthe Oregon Department of Corrections. Prison Legal

News was the plaintiff in Prison Legal News v. Cook, 238 F. 3d 1145 (9 th Cir. 2001)

(hereafter "Ninth Circuit Decision"), in which the Court of Appeals for the Ninth Circuit

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held that "tying the receipt of subscription non-profit newsletters to postal service rates
classifications is not rationally related to any legitimate penological interest put forth by the
Department." Id. at 1149-50. The Court ofAppeals further held that plaintiff s subscription

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mail must be afforded the same procedural due process protections as first class mail. Id. at
1152-53.
2.

On remand, this Court entered a judgment in which defendants Cook and

Schumacher "are permanently enjoined from enforcing OAR 291-131-0025(8) (1998) or any

other rule that prohibits inmates at institutions under the management of the Oregon

Department ofCorrections from receiving subscription non-profit organization mail mailed
at standard mail rates." Judgment on Remand at 1-2 (Cause No. 98-1344-MA, Aug. 7, 2001)

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(hereafter "Injunction"). The Court further ordered that "upon rejection of any item of
subscription non-profit organization mail mailed at standard mail rates,

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defendants shall afford the sender and the intended recipient notice and opportunity to

contest the rejection." Id. at 2.

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Notwithstanding the Ninth Circuit Decision and the Injunction, defendants

continue to refuse to deliver plaintiffs monthly magazine, Prison Legal News, and related

subscription mail to inmate recipients. Defendants' conduct is in violation of the Ninth

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Circuit Decision, the Injunction, and the requirements of Due Process in each of the
following respects:
a.

Defendants have promulgated administrative rules which discriminate

between subscription non-profit mail and other mail based exclusively on the

Postal Service rate classification;

the sender of subscription non-profit mail that is rejected with notice of the

Defendants have promulgated administrative rules which do not provide

rejection or the opportunity for administrative review of that action;

Defendants have promulgated administrative rules which do not provide

the intended recipient of subscription non-profit mail that is rejected with
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notice of the rejection or the opportunity for administrative review of that

action.

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Defendants' conduct represents an intentional and willful violation ofthe Ninth

Circuit Decision and the Injunction. It compels plaintiff to bring this action to enforce the

rights and benefits secured through the Ninth Circuit Decision and the Injunction.

The Ninth Circuit Decision and the Injunction clearly establish that plaintiffs

magazine is constitutionally protected mail, that censorship ofconstitutionally protected mail

based solely on postage classification is not rationally related to any penological objective,

and that administrative rules such as those described above violate the constitutional rights

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of both the sender and the intended recipient. Defendants therefore must be deemed to be

acting with malice or deliberate indifference to the rights of plaintiff, its inmate subscribers

and potential subscribers, and all similarly situated persons.

II.

JURISDICTION AND VENUE
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Plaintiffs claims arise under the laws and Constitution of the United States,

specifically the United States Constitution, First, Fifth, and Fourteenth Amendments, and 42
U.S.C. § 1983. The case therefore presents a federal question which is within this Court's
jurisdiction pursuant to 28 U.S.C. §§ 1331 (federal question) and 1343(a) (civil rights).
7.

Defendants Cook, de Haan, Schumacher, Duran and Holder work and reside

in the State of Oregon, within the District of Oregon. The actions and omissions of

defendants as alleged herein occurred within the District of Oregon. Venue in this Court is

proper.

III.

PARTIES
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Plaintiff Prison Legal News is a non-profit organization (NPO) incorporated

under the laws of the state of Washington, with its principal place of business at Seattle,

Washington. Plaintiff is the publisher of the monthly magazine Prison Legal News and

distributor of various books. In the course of its business plaintiff corresponds with

prisoners regularly regarding plaintiffs magazine and other publications.

Defendant David S. Cook was the director of the Oregon Department of

Corrections. Defendant Cook is a resident of Oregon. Defendant Cook is sued in his

individual capacity and in his capacity as director ofthe Oregon Department of Corrections.

Defendant Ben de Haan is the new director of the Oregon Department of Corrections.

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Defendant de Haan is a resident of Oregon. Defendant de Haan is sued in his individual
capacity and in his capacity as director of the Oregon Department of Corrections.
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Defendant David Schumacher is Rules/Compliance Manager for the Oregon

Department of Corrections. Defendant Schumacher resides in Oregon.

Defendant Schumacher is sued in his individual capacity and in his capacity as
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Rules/Compliance Manager.
11.

Defendant Rich Holder was Mail Operations Administrator of the Oregon

Department of Corrections. Defendant Holder is a resident of Oregon. Defendant Holder

is sued in his individual capacity and in his capacity as Mail Operations Director of the

Oregon Department of Corrections. Defendant lacy Duran is the new Mail Operations

Administrator of the Oregon Department of Corrections. Defendant Duran is a resident of

Oregon. Defendant Duran is sued in her individual capacity and in her capacity as Mail

Operations Director of the Oregon Department of Corrections.

IV.

ALLEGATIONS OF FACT

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12.

Plaintiff is the publisher of the monthly magazine Prison Legal News and

distributor of books and other materials pertaining to the legal rights of prisoners and

conditions affecting prisoners.

Subscribers to Prison Legal News also include attorneys, judges, journalists, academics, and

others who have an interest in the topics included in the magazine.

13.

Plaintiff has subscribers in prisons in all 50 states.

Plaintiff sends its magazine Prison Legal News to its subscribers by

Standard A non profit organization mail rates established by the United States Postal Service,

which Plaintiff is entitled to do as an NPO. Plaintiffuses Standard A non-profit organization

rates to mail its magazine Prison Legal News to its subscribers within Oregon prisons.

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Plaintiff uses mailing labels to send its magazine which include the inmate's name, prison

identification number, complete address, and the expiration date of the magazine

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subscription.
14.

Plaintiff uses and/or is entitled to use Standard A non-profit organization mail

rates to send subscription renewal notices, flyers identifying plaintiff's publications and how
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they can be ordered, letters from the publisher, and reader surveys to its subscribers,
including its subscribers within Oregon prisons, in accordance with the United States Postal
Service regulations.
15.

Plaintiff uses Fourth Class mail (book rate) to send books that it distributes to

persons who have placed orders for plaintiff's books, as plaintiff is entitled to do in

accordance with regulations ofthe United States Postal Service. Plaintiff sends its books to

inmates incarcerated in Oregon under the jurisdiction of defendants.

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16.

All ofthe communications and material described in paragraphs 12 through 15

above which are sent to persons incarcerated within Oregon are addressed to the recipient

individual by name, Oregon prison system identification number, and address. Plaintiffdoes
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not send mass mailings to Oregon prisons addressed to "occupant" or the like.
17.

The magazine, books, and other publications described in paragraphs 12 and

15 above are political speech and social commentary which are at the core of First

Amendment values and are entitled to the highest protection.

18.

The renewal notices and flyers described in paragraph 14 above are speech

directly related to the political speech and social commentary contained in plaintiff's

magazines and publications, and therefore are entitled to the same highest level ofprotection

afforded to the magazine and publicationsthemselves.

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19.

The letter from the publisher described in paragraph 14 above is political

speech and social commentary which is at the core ofFirst Amendment values and is entitled
to the highest protection.
20.

The reader survey described in paragraph 14 above is personal communication

between plaintiff and its subscribers, intended, among other things, to identify plaintiffs
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subscribers' interests in subjects that are or could be included in plaintiff s publications.
Such individual communications to identify political and social topics of interest to
plaintiffs subscribers is political communication entitled to the highest First Amendment
protection.
21.

Notwithstanding to and contrary to the decisions of the Ninth Circuit Court of

Appeals and this Court, defendants have directed and/or caused mail room corrections

officers and other corrections officers in the Oregon Department of Corrections to refuse to

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deliver Prison Legal News to Oregon inmate subscribers. The actions and failures to act of
defendants alleged in this paragraph are based on the Postal Service rates by which plaintiff

sends its magazine to its subscribers.
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22.

Defendants have caused and/or directed mail room corrections officers and

other corrections officers within the Oregon Department of Corrections to refuse to deliver

plaintiffs subscription renewal notices, letters from the publisher, reader surveys, and flyers

identifying plaintiff s publications and how they can be ordered to plaintiff s Oregon inmate

subscribers.

23.

Defendants have directed and/or caused mail room corrections officers and

other corrections officers in the Oregon Department ofCorrections to refuse to deliver letters

from the publisher, reader surveys, and flyers identifying plaintiffs publications and how

they can be ordered to plaintiffs subscribers within Oregon prisons, based on the Postal

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Service rate classification used by plaintiff to send these materials to its subscribers and/or

based on malice toward plaintiff on the part of these defendants due to the content of

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plaintiff's publications relating to prison conditions and the rights of prisoners, and/or due
to plaintiff's successful litigation to vindicate its right to send its magazines to subscribers

by Standard A nonprofit organizational mail rates.
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24.

Defendants have directed and/or caused mail room corrections officers and

other officers ofthe Oregon Department of Corrections to refuse to deliver plaintiff's books
and other publications to inmates in Oregon prisons, because of the Postal Service rate
classification used by plaintiff to mail its books and other publications.
25.

Defendants' actions and failures to act as alleged in Paragraphs 21 through 24

above are not rationally related to any legitimate penological interest.
26.

Defendants' actions and failures to act as set forth in Paragraphs 21 through

24 above violate plaintiff's clearly established rights to send subscription mail to inmate
subscribers using Standard A postage classification, to communicate individually with its

subscribers regarding their subscriptions using Standard A postage classification or first class
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mail, and to send plaintiff's books and other publications addressed individually to inmate
readers using Fourth Class Book Rate postage classification.
27.

The actions and failures to act of defendants as described in Paragraphs 21

through 24 above are malicious, reckless, wanton, and/or deliberately indifferent to

plaintiff's rights.

28.

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Defendants have directed and/or caused mail room corrections officers and

other officers of the Oregon Department of Corrections to censor the mail identified in
Paragraphs 12 through 15 above without providing plaintiff notice of the refusal, purported
reasons for the censorship, and opportunity to contest the censorship of the mail.

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29.

Plaintiff's right of due process to be notified and provided an opportunity to

contest the censorship of its subscription mail, mail related to its subscriptions, mail
addressed individually to inmates, and books and publications is clearly established.
30.

Defendants' violation of plaintiff's due process to notice and the opportunity

to contest mail censorship is malicious, reckless, wanton, and/or deliberately indifferent to
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plaintiff's rights.
31.

On July 11, 2001, defendants adopted temporary rules for delivery of mail to

inmates, including plaintiff's mail sent by Standard A and Fourth Class Book Rate postage

classifications.

governing inmate mail including plaintiff's mail to inmates sent by Standard A and Fourth

Class Book Rate postage classifications, which rule amendments were codified within OAR

291-131-0005 through 291-131-0050 (copy attached as Exhibit 1 and hereby incorporated

On December 17, 2001, defendants adopted final rule amendments

by reference). Defendants' temporary and final rules were inconsistent with and contrary to
the decision of the Ninth Circuit Court of Appeals and this Court in Prison Legal News v.

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Cook, insofar as the rules continued to provide for and allow censorship of properly
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addressed subscription mail, purported to require information in addition to an inmate's
name, prison identification number, and address to allow the delivery of subscription mail,

purported to establish different requirements for delivery of subscription mail, books and

publications, and individually addressed mail solely because ofthe postage classification of

the mail, and failed to provide for notice and the opportunity to contest censorship of such

mail to plaintiff and other NPO mailers who use Standard A and Fourth Class Book Rate to

mail their magazines, subscription mail, books, publications, and other individually

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addressed mail. The rules which were contrary to the decisions of the Ninth Circuit Court
of Appeals and this Court include OAR 291-131-0025(6), OAR 291-131-0025(8), OAR

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291-131-0037(6), OAR 291-131-0050(1), and OAR 291-131-0010(26), together with any

other rule and/or interpretation and/or application of the rules which had or have the effect

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of tying the receipt of subscription non-profit mail to Postal Service rates classifications,
failing to provide notice and opportunity to contest the censorship of delivery ofindividually

addressed mail from plaintiff and other NPOs, and/or purporting to impose different and
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additional requirements on the mail of plaintiff and other NPOs on the basis of the Postal
Service rate classifications by which individually addressed NPO mail is sent, and/or
purported to prohibit plaintiff from communicating with its subscribers by sending to its
subscribers the materials described in paragraph 14
32.

On March 25, 2002, defendant adopted new "temporary rules" regarding

inmate mail policies. A copy of these "temporary rules" is attached as Exhibit 2 and

incorporated by this reference. The March 25, 2002 "temporary rules" purport to "permit

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inmates to receive mail without regard to the postal rate at which it is mailed," according to
the Statement of Need and Justification for Temporary Rule issued by defendant Cook on

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March 25, 2002. Notwithstanding and contrary to defendant Cook's statement, defendants
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have continued to differentiate between first class mail and mail sent by nonprofit
organizations using Standard A mail rates.
33.

To the extent that defendants' rules purport to prohibit plaintiff and other

NPOs from sending subscription magazines which have not been paid for, the rules have no

legitimate penological purpose and violate plaintiffs First Amendment rights.

34.

To the extent that OAR 291-131-0025(6) prohibited and continues to prohibit

plaintiff and other publishers from sending materials such as subscription renewal notices

and publication order forms which are intended primarily to inform the recipient ofpolitical

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magazines and publications offered for sale, the rule has no legitimate penological purpose

and violates plaintiff's First Amendment rights.

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35.

To the extent that OAR 291-131-0025(7) ofthe "temporary rules" adopted on

March 25, 2002 continues to deny plaintiff and the recipients of its mail notice and

administrative review of refused mail, the rule has no legitimate penological purpose and
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violates plaintiff's First Amendment rights and plaintiff's rights to due process of law. For
the same reasons, the rule violates the rights of the intended recipients of plaintiff's mail.
36.

Defendants have implemented OAR 291-131-0025(6) differently with respect

to plaintiff's mail than with respect to mail sent by others. In particular, defendant Holder

has informed inmates that "catalogs" and other mail supposedly subject to this rule can be

received if sent by first class mail and less than a specified thickness. Defendants have

caused plaintiff's subscription renewal notices, flyers identifying plaintiff's publications and

how they can be ordered, and similar mail to be refused, even when sent by first class mail
and in less than the thickness arbitrarily and without authority of rule specified by defendant

Holder in communication with other inmates.
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37.

Defendants' administration and enforcement of OAR 291-131-0025(6) is

arbitrary and invidious, and has singled plaintiff out for adverse treatment and denial of its

First Amendment rights and rights to due process oflaw. In the absence of any valid reason

for discriminating against plaintiff's mail, defendants' conduct evidences malice, spite, and

reckless indifference to the federally protected rights of plaintiffs including plaintiff's right

exercised previously to petition the courts to redress such violations.

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38.

The rights ofplaintiffand other NPO publishers and mailers which are violated

by the rules identified in Paragraph 31, 32, 34, and 35 above are clearly established.

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39.

Defendants' adoption ofmles which violate the clearly established rights of

plaintiff and other NPO publishers and mailers are malicious, reckless, wanton, and/or
deliberately indifferent to such rights.

FIRST CLAIM
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40.

Plaintiff incorporates by this reference the allegations set forth in Paragraphs

1-39 above.
41.

The actions and failures to act of defendants as alleged herein have violated

plaintiffs rights protected by the First Amendment and by 42 U.S.C. § 1983.

VI.

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SECOND CLAIM
42.

Plaintiff incorporates by this reference the allegations set forth in Paragraphs

1-41 above.
43.

Defendants' actions and failures to act as alleged herein have denied plaintiff

its rights of due process oflaw as secured by the Fifth and Fourteenth Amendments and by

42 U.S.C. § 1983.

VII.

THIRD CLAIM

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44.

Plaintiff incorporates by this reference the allegations set forth in Paragraphs

1-43 above.
45.

Defendants' actions as alleged herein, including its continuing refusal to

deliver plaintiff s subscription renewal notices and similar mail sent first class, were
retaliatory against plaintiff on the basis ofthe content ofplaintiffs communications relating
to prison conditions and prisoners' rights, and because plaintiff has challenged defendants'

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mail policies in this Court and prevailed.

VIII.

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PRAYER FOR RELIEF
Plaintiff Prison Legal News requests the following relief:
1.

A declaration that defendants' actions and failures to act have violated plaintiff's right

to communicate with prison subscribers and readers secured by the First Amendment and by 42
U.S.c. § 1983;
2.

A declaration that defendants' actions and failures to act as alleged herein have

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violated plaintiff's right of due process oflaw secured by the Fifth and Fourteenth Amendments and
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by 42 U.S.c. § 1983;

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3.

A declaration that the rules adopted by defendants on December 17, 2001, including

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OAR291-131-0010(26), OAR291-131-0025(6), OAR291-131-0025(8), OAR291-131-0037(6), and
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OAR 291-131-0050(1), violated plaintiff's rights of free speech, communication, association, and
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due process, were unconstitutional on their face and as applied to plaintiff and its subscribers, and
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were invalid;
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4.

A declaration that the "temporary rules" adopted by defendants on March 25,2002,

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including OAR 291-131-0025(6) and OAR 291-131-0025(7), together with any interpretation,
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implementation, and enforcement of these or any other inmate mail rules which causes plaintiff to
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be denied its rights to communicate with its subscribers as alleged in this complaint, violate
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plaintiff's rights of free speech, communication, association, and due process, are unconstitutional
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on their face and as applied to plaintiff and its subscribers, and are invalid;

An injunction, including temporary injunctive relief, ordering defendants to deliver

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plaintiff's magazines to the addressees regardless of the mail classification;
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An injunction, including temporary injunctive relief, ordering defendants to deliver

plaintiff's books and publications to the addressees regardless of the mail classification;
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FIRST AMENDED COMPLAINT

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An injunction, including temporary injunctive relief, ordering defendants to deliver

plaintiff s subscription renewal notices, flyers, book order forms, and letters from the publisher to

the addressees regardless of the mail classification, and to provide plaintiff and inmate addressees

notice and administrative review of all refusals to deliver such mail;

A permanent injunction prohibiting defendants from applying

OAR 291-131-0025(6), OAR 291-131-0025(7), or any other rule previously enacted or enacted

hereafter, to restrict or prohibit delivery ofplaintiffs magazines, books, publications, subscription

renewal notices, flyers, book order forms, or publisher's letters to their addressees, and prohibiting

defendants from applying these rules to deny plaintiff and its subscribers notice and administrative

review of all refusals to deliver plaintiff smail;

An award of plaintiffs damages;

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An award of punitive damages;

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An award of plaintiff s attorneys' fees and costs pursuant to 42 U. S, C.

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§ 1988; and,
12.

Such further relief as the Court deems just and equitable.

13.

Plaintiff demands a jury trial.

Dated this _

day of June, 2002.

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Respectfully submitted,
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RANSOM BLACKMAN LLP

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By:

Marc D. Blackman
OSB No. 73033
1001 S.W. Fifth Street, Suite 1400
Portland, OR 97204
(503) 228-0487 (telephone)
(503) 227-5984 (facsimile)
marc@ransomblackman.com

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BRICKLIN & GENDLER, LLP
Michael W. Gendler
WSBA No. 8429
1424 Fourth Avenue, Suite 1015
Seattle, WA 98101-2217
(206) 621-8858 (telephone)
(206) 621-0512 (facsimile)
gendler@bricklin-gendler.com

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Attorneys for Plaintiff Prison Legal News

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