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Preliminary injunction issued in PLN's censorship suit against Upshur County, TX

Gilmer Mirror, Jan. 1, 2013.
Preliminary injunction issued in PLN's censorship suit against Upshur County, TX - Gilmer Mirror 2013

Judge issues injunction on inmate mail


October 6, 2013

A federal judge in Marshall Monday issued a preliminary injunction against Upshur County Sheriff Anthony Betterton and other defendants in a federal lawsuit, ruling that the county jail’s revised plan involving what mail prisoners may receive is “constitutionally flawed.”

U.S. District Judge Rodney Gilstrap issued the injunction in a suit brought last November by the Vermont-based Prison Legal News against Betterton, the county itself, and Sheriff’s Lt. Jill McCauley, the jail’s administrator. The litigation is pending in the Marshall Division of the United States District Court for the Eastern District of Texas.

The organization, which says it “educates prisoners about their legal rights,” has alleged the county violated its rights to free speech by rejecting and returning magazines and books it mailed to county jail prisoners, and that the county was wrongfully censoring its publications.

In his 15-page ruling, Gilstrap said the county jail revised its “Correspondence Policy” in September after the request for a preliminary injunction was filed.

But while the new plan is “a significant improvement on the Jail’s previous policies,” Gilstrap wrote, he believes it “still falls short of establishing the minimum procedural safeguards constitutionally required to protect PLN’s First and Fourteenth Amendment rights.”

In the ruling, a copy of which was sent to The Mirror by Longview attorney Ebb Mobley, Gilstrap issues what he termed only “a slight modification” of the new policy. In a news release, PLN said Gilstrap ordered the county to abide by the new mail policy “with certain modifications.”

The news release continued, “Those modifications include ensuring that both the recipient and sender receive notice of rejected mail within 72 hours that includes the ‘reason for rejection; notice of the opportunity for appeal; and procedures for requesting an appeal.’”

The release then quotes Gilstrap as ruling that an appeal can be filed within 21 days of the rejection notice, and that the Sheriff shall, when possible, decide on an appeal within 72 hours.

“Despite its improvements,” Gilstrap wrote, “Defendants’ new Correspondence Plan leaves the door open to suspect that, absent an injunction, more constitutional violations might be in the offing.

The Correspondence Plan is clear in its mention of appeals only as to one of three categories of content that might justify censorship.

It also provides for appeal, but does not specify whether both senders and recipients of censored mail have a right of appeal. . . These drafting inadequacies should not be overlooked.”

The new plan, Gilstrap wrote, “is constitutionally flawed from a due process standpoint.”

He also said the reasons that the jail has returned PLN’s publications to that organization “are unclear,” but that defendants argue they “have never rejected a PLN publication due to its content, or otherwise censored PLN’s publications in any way.’”

Rather, “They claim that they routinely deliver PLN publications to UCJ inmates, but suggest inherently that PLN publications are often returned because the recipients either refuse delivery or, given the transient nature of jail populations, no longer reside in the UCJ.”

However, Gilstrap said “evidence suggests that at least some of PLN’s correspondence with prisoners has been withheld from its intended recipients, depriving Plaintiff of its First Amendment rights without due process of law. . .Accordingly, in the Court’s view, PLN is likely to prevail on the merits of its case. . .”

Gilstrap also said the jail’s “written policies governing correspondence” before the revision in September were “unconstitutional, in that they allowed Jail employees to censor PLN’s correspondence without notifying PLN or allowing PLN an opportunity to be heard.” In addition, he said, “Even the inmates’ right to appeal such censorship was tenuous at best, since no then-existing policy required prisoners to be notified when their mail was withheld.”

As for the suggestion that jail prisoners have refused delivery, Gilstrap said a declaration by inmate Devadus Nelson, who subscribed to PLN but said that “at least four times (he) has not received requested issues. . .directly casts doubt on the idea that prisoners are refusing delivery of Prison Legal News en masse.”

Gilstrap said the defendants suggest Nelson was lying or PLN might not have sent the prisoner the missing issues, but the judge said he found no evidence to contradict what the inmate said. The judge also wrote that “given the volume of mail returned to PLN and the inadequacy of UCJ’s correspondence procedures,” he found it “more likely” the jail didn’t deliver the publication to Nelson than that the organization failed to mail it.

IThe defendants’ attorney, Dallas lawyer Cass Weiland, told The Mirror Friday, “We were surprised by the preliminary injunction. We just filed a document in court that advised the court that we were negotiating to settle this matter, and then the preliminary injunction came in, so we’re looking at our alternatives now, one of which is to file an appeal (of the injunction).”

Weiland had met in closed session with the Upshur County Commissioners Court on Monday, but two commissioners told this newspaper they knew nothing about the injunction until contacted by The Mirror.

In the news release, PLN Editor Paul Wright said, “This is the first step in what will prove to be a successful lawsuit against Upshur County and Sheriff Betterton. As a law enforcement official, the Sheriff has an obligation to uphold the Constitution, including the First Amendment rights of people who want to communicate with those held in his jail. When he fails to meet his responsibilities to protect free speech, lawsuits are the only way to hold him accountable and to vindicate the Constitution.”

Representing PLN in the suit are Thomas Leatherbury, Sean W. Kelly, Kimberly McCoy and Marissa Anne Wilson of Vinson and Elkins; Scott Medlock and Brian McGiverin with the Texas Civil Rights Project, and Human Rights Defense Center general counsel Lance Weber.

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