Case 2:12-cv-00699-JRG Document 5

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
PRISON LEGAL NEWS,
PLAINTIFF
v.
ANTHONY BETTERTON, individually and
in his official capacity as Sheriff of Upshur
County; JILL MCCAULEY, individually
and in her official capacity as Lieutenant of
Upshur County Jail, and UPSHUR
COUNTY,
DEFENDANTS

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CIVIL ACTION NO. 2:12-cv-699

COMPLAINT
Prison Legal News (“PLN”) is non-profit organization that educates prisoners about their
legal rights.

Defendants are wrongfully censoring PLN’s communication with prisoners

incarcerate at the Upshur County Jail.
STATEMENT OF CLAIMS
1.

PLN brings this action to stop Defendants from censoring its mail in violation of its

rights to free speech and due process. PLN seeks injunctive and declaratory relief, along with
nominal, compensatory, and punitive damages.
JURISDICTION AND VENUE
2.

This Court has jurisdiction over this action pursuant to 28 U.S.C. §1331 (federal

question), §1343 (civil rights), and §2201 (Declaratory Judgment Act).

This Court has

supplemental jurisdiction to consider Plaintiffs’ state law claims pursuant to 28 U.S.C. §1367(a).
3.

Venue is proper in this district pursuant to 24 U.S.C. §1391(b), as the events

complained of occurred in this district and division.

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PARTIES
4. PLN is a wholly owned subsidiary of the Human Rights Defense Center (HRDC), a
non-profit, tax-exempt corporation. HRDC’s mission is centered on public education, prisoner
education, and advocacy in support of basic human rights.

PLN’s primary offices are in

Brattleboro, Vermont. PLN publishes a monthly magazine distributed across the nation to
prisoners, attorneys, judges, law libraries, and other subscribers. PLN also distributes books,
specializing in self-help materials regarding prisoner’s rights and issues related to the criminal
justice and corrections systems.
5. Defendant Anthony Betterton, Sheriff of Upshur County, is responsible for the
policies, procedures, and operation of the Upshur County Jail. All his acts and omissions
complained of herein were under color of state law. Betterton is the final policymaker for
Upshur County. He is sued in his official capacity for injunctive and declaratory relief, and in
his individual capacity for nominal, compensatory, and punitive damages. He can be served with
process at 405 North Titus, Gilmer, TX 75644. Service is requested.
6. Defendant Jill McCauley is a lieutenant at the Upshur County Jail. All her acts and
omissions complained of herein were under color of State law. She is a final policymaker for the
Upshur County Jail. She is sued in her official capacity for injunctive and declaratory relief, and
in her individual capacity for nominal, compensatory, and punitive damages. She can be served
with process at the Upshur County Jail, 405 North Titus, Gilmer, TX 75644. Service is
requested.
7. Upshur County is a political subdivision of the State of Texas. The County funds and
operates the jail, employs and compensates the jail staff, and is charged with ensuring that, at all
times, the jail remains in compliance with federal and state law. Upshur County can be served

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through its county judge, Dean Fowler at Uphsur County Courthouse 3rd Floor, 100 West Tyler
St., Gilmer, TX 75644. Service is requested.
STATEMENT OF FACTS
PLN Educates Prison and Jail Inmates
8. PLN publishes and distributes a 56-page legal information magazine addressing the
rights of incarcerated people. The magazine has been published continuously since 1990. PLN
has approximately 7,000 subscribers nationwide, including prisoners, attorneys, judges, public
libraries, and members of the general public. PLN distributes the magazine to prisoners in
approximately 2,200 correctional facilities across the United States.
9. The magazine is core-protected speech; it is not objectionable on security or other
grounds. Each monthly issue of the magazine provides information about important legal issues,
such as access to courts and counsel, disciplinary hearings, prison conditions, excessive force,
mail censorship, jail litigation, visitation, access to telephones, religious freedom, prison rape,
and the death penalty, among other topics.
10. PLN also distributes approximately fifty (50) books regarding the criminal justice
system by other publishers. These books foster a better understanding of criminal justice policies
and issues and allow prisoners to educate themselves about related issues.
Defendants’ Censorship Policy is Not Narrow, Objective, or Definite
11. Upshur County Jail’s written inmate handbook contains no written criteria explaining
when a publication will be rejected. It merely states:
All periodicals, magazines, newspapers, and other similar items will be individually
inspected. This inspection will be conducted to ensure these items do not contain
restricted information and will be rejected on a case-by-case basis. All such materials
must have prior approval to be received and must be mailed from the publisher to the
inmate.

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12. The policy does not provide a sender any notice or explanation when Defendants
censor a book. Only a prisoner may file a written appeal of a censorship decision, not the sender.
Defendants Censor PLN’s Mail to Inmates
13. Beginning July 2011 and continuing to the present, PLN has been mailing its
magazine to inmates in the Upshur County Jail.
14. Subscribers to the magazine at Upshur County Jail are also sent copies of the
paperback book, Protecting Your Health and Safety: Prisoners’ Rights, published by the
Southern Poverty Law Center (SPLC). The book gives inmates information about their right to
medical care and protections against inhumane treatment.
15. Since July 2011, PLN has received returned copies of its monthly magazine and
books from the Upshur County Jail. Out of approximately 223 issues of PLN’s magazine sent
since July 2011, at least 86 issues were rejected and sent back. Many books have been returned s
the same way.


In July 2011, PLN received eight returned copies of the magazine sent to prisoners at
Upshur County Jail. Each magazine was officially stamped “Refused,” “Return To
Sender” and “No Newspaper.” PLN also received one returned copy of Protecting Your
Health and Safety, which was marked “RTS” (Return To Sender).



In October 2011, PLN received a returned copy of the magazine sent to one of the
prisoners at Upshur County Jail. The packaging was stamped with “Refused,” “Return
To Sender” and “No Newspaper.”



In January 2012, PLN received eighteen returned copies of the magazine sent to prisoners
at Upshur County Jail. Each issue was stamped “Refused.” PLN also received two
returned copies of Protecting Your Health and Safety marked “RTS,” “Returned to
Sender,” and “Refused.”



In February 2012, PLN received seven returned copies of the magazine sent to prisoners
at Upshur County Jail. Each of these issues was stamped “Refused.”



In March 2012, PLN received five returned copies of the magazine sent to prisoners at
Upshur County Jail. Each issue was stamped “Refused.” Plaintiff also received three
returned copies of Protecting Your Health and Safety. Each copy of the book was marked
“RTS” and “Not Approved by Chief.”
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

In April 2012, PLN received twenty-seven returned copies of the magazine sent to
prisoners at Upshur County Jail. Each of these issues was stamped “Refused,” “Return
To Sender” and/or “No Newspaper.”



In June 2012, PLN received nine returned copies of the magazine sent to prisoners at
Upshur County Jail. Each of these issues was marked “Refused.”



In July 2012, PLN received five returned copies of the magazine sent to prisoners at
Upshur County Jail. Each of these issues was marked “Refused.”



In August 2012, PLN received five returned copies of the magazine sent to prisoners at
Upshur County Jail. Each of these issues was marked “Refused.”
16. After suspecting the books and magazines were being censored, PLN’s in-house

counsel sent personally addressed letters to individual prisoners to ask if they were receiving the
magazine and books. These letters, despite being sent in envelopes marked “Special Mail: Legal
Mail,” were returned to PLN, unopened, though the prisoners were still incarcerated at the
Upshur County Jail.
PLN is not Given Due Process for Censorship Decisions
17. Defendants do not provide PLN with constitutionally adequate notice of the
censorship of the magazine and books,
18. Likewise, Defendants do not provide PLN an opportunity to be heard or to contest
Defendants’ censorship decisions.
19. On information and belief, Upshur County Jail officials, including Defendants, are
not making individualized determinations about the content of each publication before censoring
and excluding the material, in violation of the First Amendment.
20. Defendants’ censorship and exclusion of PLN magazine by Upshur County Jail
officials, is arbitrary and void of any constitutionally valid standards or criteria.
Defendants’ Censorship Violates Free Speech Guarantees
21. Defendants know their policies and practices unconstitutionally violate PLN’s rights
to free speech.
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22. Due to Defendants’ actions, PLN has suffered pecuniary loss of potential subscribers,
customers, correspondents and supporters; diversion of resources; loss of reputation; and other
damages to be shown at trial.
23. Due to Defendants’ actions, as described herein, PLN has suffered and will continue
to suffer irreparable harm for which there is no adequate remedy at law.
CAUSE OF ACTION I – UNITED STATES CONSTITUTION
FIRST AMENDMENT FREEDOM OF SPEECH
24. PLN has a constitutionally protected liberty interest in communicating with
incarcerated people. This right is clearly established under existing case law.
25. Defendants’ censorship of PLN’s reading material is arbitrary, unrelated to any
legitimate penological interest, and without any individualized determination based on content,
in violation PLN’s free speech rights secured by the First and Fourteenth Amendments.
26. PLN’s right to communicate with prisoners through the mail is clearly established.
Thus, Defendants Betterton and McCauley are not entitled to qualified immunity.
CAUSE OF ACTION II – TEXAS CONSTITUTION FREEDOM OF SPEECH
27. The Texas Constitution offers greater free speech protections than the U.S.
Constitution. Article I, Section 8 guarantees:
Every person shall be at liberty to speak, write or publish his opinions on any
subject, being responsible for the abuse of that privilege; and no law shall ever be
passed curtailing the liberty of speech or of the press…
28. Defendants’ policy requiring official approval of materials before they are passed on
to inmates is an unconstitutional prior restraint on speech.

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CAUSE OF ACTION III – DUE PROCESS OF LAW
29. PLN has a right under the Fourteenth Amendment to receive notice when Defendants
prevent PLN’s magazine and books from reaching prisoners, and to be given the opportunity to
object.
30. Defendants’ policy does not provide notice or an opportunity to be heard before
Defendants deprive PLN of its free speech rights, in violation of the Due Process Clause of the
Fourteenth Amendment.
31. The right to due process before censorship is clearly established under decades of
well-settled case law. As such, Betterton and McCauley are not entitled to qualified immunity.
DAMAGES
32. PLN seeks compensatory, punitive, and nominal damages for violations of its
constitutional free speech and due process rights under the First and Fourteenth Amendments for
suppression of its political message; diversion of its resources; frustration of its organizational
mission; injuries to its business reputation; and loss of revenue.
DECLARATORY RELIEF
33. PLN requests all appropriate declaratory relief to which it is entitled.
INJUNCTIVE RELIEF
34. PLN requests the Court enjoin Defendants from continuing to violate its free speech
and due process rights.
35. Plaintiffs seek permanent injunctive relief requiring Defendants to provide written
notice to senders and an opportunity to respond before censoring their mail, and requiring the
adoption of specific guidelines delineating what materials may be delivered to prisoners though
the mail, as well as any other appropriate injunctive relief.

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ATTORNEYS’ FEES AND COSTS
36. Pursuant to 42 U.S.C. § 1988, PLN is entitled to recover attorneys’ fees and litigation
costs and expenses.
PRAYER FOR RELIEF
THEREFORE, Prison Legal News requests the Court:
1. Declare that Defendants’ censorship policies and practices are unconstitutional;
2. Grant a preliminary and permanent injunction ordering Defendants to stop violating
Plaintiff’s rights to due process and free speech;
3. Award nominal, compensatory, and punitive damages against Defendants;
4. Grant reasonable attorneys’ fees, litigation expenses, and court costs pursuant to 42
U.S.C. §1988; and
5. Grant all other and further relief as appears reasonable and just, to which Plaintiffs may
be entitled.
Dated: November 26, 2012.
Respectfully submitted,
/s/ Brian McGiverin
Brian McGiverin
Texas Bar. No. 24067760
Scott Medlock
Texas Bar No. 24044783
James C. Harrington
Texas Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT
1405 Montopolis Dr.
Austin, TX 78741
Tel. (512) 474-5073
Fax (512) 474-0726
ATTORNEYS FOR PLAINTIFF

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