Case 1:17-cv-01064-SOH Document 1

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FILED
US DISTRICT COURT
WESTERN DISTRICT
OF ARKANSAS
Oct 30, 2017
OFFICE OF THE CLERK


Case 1:17-cv-01064-SOH Document 1

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JURISDICTION AND VENUE

This action is brought pursuant to 28 U.S.C. § 1331 (federal question), as this action

arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §1343 (civil
rights), as this action seeks redress for civil rights violations under 42U.S.C.§1983.
4.

Venue is proper under 28 U.S.C. §1391(b). On information and belief, at least one

Defendant resides within this judicial district, and the events giving rise to the claims asserted
herein occurred within this judicial district.
5.

Plaintiff's claims for relief are 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 the Plaintiff by the First and Fourteenth Amendments to the U.S. Constitution and laws
of the United States.
6.

This Court has jurisdiction over claims seeking declaratory and injunctive 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 nominal and compensatory damages, against all Defendants.
7.

Plaintiff's claim for attorneys' fees and costs is predicated upon 42 U.S.C. §1988,

which authorizes the award of attorneys' fees and costs to prevailing plaintiffs in actions brought
pursuant to 42 U.S.C. §1983.
8.

Plaintiff is informed, believes, and therefore alleges that in engaging in the conduct

alleged herein, Defendants acted with the intent to injure, vex, annoy, and harass Plaintiff, and
subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs rights with the
intention of causing Plaintiff injury and depriving it of its constitutional rights.
9.

As a result of the forgoing, Plaintiff seeks compensatory and punitive damages

against the individual Defendants.

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Ill.

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PARTIES

The Human Rights Defense Center is a not-for-profit chruitable organization

recognized under §501 (c)(3) ofthe Internal Revenue Code, incorporated in the state of Washington
and with principal offices in Lake Worth, Florida. PLN is a wholly-owned project and the
publishing arm of HRDC. The purpose of HRDC, as stated in its Articles of Incorporation, is to
educate prisoners and the public about the destructive nature of racism, sexism, and the economic
and social costs of prisons to society. HRDC, through its publishing project, engages in core
protected speech and expressive conduct on matters of public concern, such as the operation of
prison facilities, prison conditions, prisoner health and safety, and prisoners' rights. Plaintiff's
publications contain political speech and social commentary, which are core First Amendment
rights and are entitled to the highest protection afforded by the U.S. Constitution. For more than
26 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's mission, if realized, has
a salutary effect on public safety.
11.

Defendant Union County, Arkansas (the "County") is a unit of government

organized and existing under the laws of the State of Arkansas. The County operates the UCDC,
and is and was responsible for adopting and implementing mail policies governing incoming mail
for prisoners at that facility.
12.

Defendant Ricky Roberts is the Sheriff of Union County, Arkansas. Defendant

Roberts is employed by and is an agent of the County. He is responsible for overseeing the
management and operations of the UCDC, and for the hiring, screening, training, retention,
supervision, discipline, counseling, and control of the personnel of the UCDC who interpret and

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apply the mail policy for prisoners. As Sheriff, Defendant Roberts is a final policymaker with
respect to the operations of the UCDC, including for policies governing incoming mail for
prisoners. He is sued in his individual and official capacities.
13.

Defendant Richard Mitcham is a Captain in the Union County Sheriffs Office, and

is the Jail Administrator for the UCDC. Defendant Mitcham is employed by and is an agent of the
County. He is responsible for overseeing the day to day management and operations ofthe UCDC,
and for the hiring, screening, training, retention, supervision, discipline, counseling, and control
of the personnel of the UCDC who interpret and apply the mail policy for prisoners. He is sued in
his individual and official capacities.
14.

Defendant Paul Kugler is a Lieutenant in the Union County Sheriffs Office, and is

the Assistant Jail Administrator for the UCDC. Defendant Kugler is employed by and is an agent
of the County. He is responsible for overseeing the day to day management and operations of the
UCDC, and for the hiring, screening, training, retention, supervision, discipline, counseling, and
control of the personnel of the UCDC who interpret and apply the mail policy for prisoners. He is
sued in his individual and official capacities.
15.

The true names and identities of Defendants DOES 1 through 10 are presently

unknown to HRDC. Each of Defendants DOES 1 through 10 are or were employed by and are or
were agents of Defendant County when some or all of the challenged prisoner mail policies and
practices at the jail facilities were adopted and/or implemented. Each of Defendants DOES 1
tlu·ough 10 are or were personally involved in the adoption and/or implementation of the UCDC's
mail policies for prisoners, and/or are or were responsible for the hiring, screening, training,
retention, supervision, discipline, counseling, and/or control of the UCDC staff who interpret and
implement these prisoner mail policies. They are sued in their individual and official capacities.

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HRDC will seek to amend this Complaint as soon as the true names and identities of Defendants
DOES 1 through 10 have been ascertained.
16.

At all times material to this action, the actions of all Defendants as alleged herein

were taken under the authority and color of state law.

IV.

FACTUAL ALLEGATIONS

A. HRDC's Mission and Outreach to the UCDC
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HRDC, through its publication project, PLN, publishes and distributes an

eponymously-named soft cover monthly magazine titled Prison Legal News: Dedicated to
Protecting Human Rights, which contains news and analysis about prisons, jails and other

detention facilities, prisoners' rights, court opinions, current events, management of prison
facilities, prison conditions, and other matters pertaining to the rights and/or interests of
incarcerated individuals. The monthly magazine is published on newsprint and is 72-pages long.
18.

Prison Legal News has thousands of subscribers in the United States and abroad,

including prisoners, attorneys, journalists, public libraries, judges, and members of the general
public. HRDC distributes Prison Legal News to prisoners in approximately 2,600 correctional
facilities across the United States, including death row units and institutions within the Federal
Bureau of Prisons, such as the federal Administrative Maximum Facility ("ADX" or "Supermax")
at Florence, Colorado - the most secure prison in the United States. Prison Legal News is
distributed to prisons and jails within the correctional systems of all 50 states, including to dozens
of prisoners housed in facilities in the State of Arkansas.
19.

HRDC, through its publication project, PLN, also publishes and/or distributes

approximately fifty different softcover books about the criminal justice system, legal reference
books, and self-help books of interest to prisoners. These books are designed to foster a better

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understanding of criminal justice policies and to allow prisoners to educate themselves about
related issues, such as legal research, how to write a business letter, health care issues, and similar
topics. Pertinent to this case, HRDC publishes and distributes The Habeas Citebook: Ineffective
Assistance of Counsel ("Habeas Citebook"), which describes the procedural and substantive
complexities of federal habeas corpus litigation with the goal of identifying and litigating claims
involving ineffective assistance of counsel.
20.

In addition to monthly magazine issues and books, HRDC also sends prisoners: (a)

informational brochure packets - the packet contains a brochure and subscription order form, a
book list, and a published books brochure (each of which is a single page); and (b) copies of
judicial opinions of import to prisoners.
21.

The UCDC is located in El Dorado and holds nearly 200 prisoners. A substantial

number of the prisoners within the detention center have yet to stand trial or be sentenced for a
crime.
B. Defendants' Unconstitutional Policies and Practices

22.

Defendants' mail policy requires all mail sent to prisoners be in the form of a

postcard, effectively banning all enveloped corTespondence, books and magazines sent by HRDC
and others to prisoners at the UCDC.
23.

According to Defendants' mail policy as stated on their website, prisoners at the

UCDC "may only receive 3x5 or 4x6 postcards as incoming mail." The policy further states that
"[l]etters made out to inmates will not be opened and will be returned to sender."
24.

Consequently, Defendants have censored the following materials sent by HRDC to

prisoners held in the UCDC: (1) sample issues of Prison Legal News; (2) the Habeas Citebook;
(3) informational brochure packets; and (4) court opinions. Defendants refused to deliver said

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items to the intended prisoner-recipients, and, in many instances, returned items to HRDC's office
via the "Return To Sender" service of the United States Postal Service. Some of these items were
marked with the notation:
"Union County Sheriffs Dept.
Retwn to Sender
Reason: Post Cards Only"
25.

Altogether, since June 2017, HRDC can identify at least fifty-three (53) items of

mail sent by HRDC to prisoners held in the UCDC which were censored by Defendants. This
includes thirteen (13) issues of Prison Legal News, twelve (12) copies of the Habeas Citebook,
fourteen (14) informational packets, and fourteen (14) court opinions.
26.

In all ofthe above instances of censorship ofHRDC's communications, Defendants

failed to explain the penological justification for their censorship decisions and otherwise failed to
give meaningful notice of the censorship, violating HRDC's Fourteenth Amendment rights.
27.

Defendants further failed to provide an opportunity for HRDC to challenge the

censorship of its mail, also in violation ofHRDC's Fourteenth Amendment rights.
28.

Defendants' policies, practices, and customs are unconstitutional both facially and

as applied to HRDC. Such restrictions on written speech sent to prisoners at the UCDC are not
rationally related to any legitimate penological interest and violate HRDC's First Amendment right
to communicate its speech with prisoners.
29.

Defendants' censorship policies, practices, and customs have a chilling effect on

HRDC's future speech and expression directed toward prisoners held in the UCDC.
30.

HRDC will continue to mail copies of its books, magazines and enveloped

correspondence to subscribers, customers, and other individuals imprisoned at the UCDC, but

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seeks the protection of this Court to ensure that the materials are delivered and, if not, that due
process is afforded to the HRDC so it may challenge the basis for any censorship.
Defendants' Unconstitutional Mail Policies and Practices are Causing HRDC
Ongoing Harm

31.

Due to Defendants' actions described above, HRDC has suffered damages, and

will continue to suffer damages, including, but not limited to: the violation of the HRDC's
constitutional rights; the impediment of HRDC's ability to disseminate its political message;
frustration of HRDC' s non-profit organizational mission; diversion of resources; loss of potential
subscribers and customers; an inability to recruit new subscribers and supporters; the loss of
reputation; and the costs of printing, handling, mailing, and staff time.
32.

Defendants' actions and inactions were and are motivated by ill motive and intent,

and were and are all committed under color of law and with reckless indifference to HRDC's
rights.
33.

Defendants, and their agents, are responsible for or personally participated in

creating and implementing these unconstitutional policies, practices, and customs, or for ratifying
or adopting them. Further, Defendants are responsible for training and supervising the staff
persons whose conduct has injured and continues to injure HRDC.
34.

Defendants' unconstitutional policy, practices, and customs are ongoing, continue

to violate HRDC's rights, and are the moving force behind the constitutional violations.
Defendants' unconstitutional policy, practices, and customs will continue unless enjoined. As
such, HRDC has no adequate remedy at law.
35.

HRDC is entitled to injunctive relief prohibiting Defendants from refusing to

deliver its monthly magazine Prison Legal News, books, informational brochure packets, and court

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opinions without any legal justification, and prohibiting Defendants from censoring mail without
due process of law.

V.

CLAIMS

A. Count 1-42 U.S.C. §1983 Violation of the First Amendment

36.

HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 35 of

the Complaint as if fully set forth herein.
37.

The acts described above constitute violations of HRDC's rights, the rights of

other correspondents who have attempted to or intend to correspond with prisoners held in the
UCDC, and the rights of prisoners confined at the U CDC, under the First Amendment of the United
States Constitution.
38.

HRDC has a constitutionally protected liberty interest in communicating with

incarcerated individuals by sending books, magazines, information packets, and court opinions to
them via U.S. Mail, a right clearly established under existing case law.
39.

The conduct of Defendants was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of
others.
40.

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

proximately caused by the policies and practices of Defendants, and those policies were the
moving force behind the violations.
41.

The acts described above have caused damages to HRDC, and if not enjoined, will

continue to cause damage to HRDC.

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42.

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HRDC seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants. HRDC further seeks punitive damages against the individual
Defendants in their individual capacities.
B. Count II-42 U.S.C. §1983 Violation of the Fourteenth Amendment

43.

HRDC re-alleges and incorporates the allegations of Paragraphs 1 through 42 of

the Complaint as if fully set forth herein.
44.

The acts described above constitute violations of HRDC's rights, the rights of

other correspondents who have attempted to or intend to correspond with prisoners held in the
UCDC, and the rights of prisoners confined at the UCDC, under the Fourteenth Amendment of
the United States Constitution.
45.

HRDC has a right under the Due Process Clause of the Fourteenth Amendment to

receive notice and an opportunity to object and/or appeal Defendants' decisions to prevent
HRDC's mail from reaching prisoners held in the UCDC.
46.

Defendants' policy and practice of censoring HRDC's books, magazines,

information packets, and court opinions fails to provide HRDC with individualized notice of the
censorship or an opportunity to be heard.
47.

The conduct of Defendants was objectively unreasonable and was undertaken

recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of
others.
48.

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

proximately caused by the policies and practices of Defendants, and which were the moving force
behind the same.

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The acts described above have caused damages to HRDC, and if not enjoined, will

continue to cause damage to HRDC.
50.

HRDC seeks declaratory and injunctive relief, and nominal and compensatory

damages against all Defendants. HRDC further seeks punitive damages against the individual
Defendants in their individual capacities.
VI.

REQUEST FOR RELIEF

WHEREFORE, the Plaintiff respectfully requests relief as follows:
1.

A declaration that Defendants' policies and practices of limiting
correspondence to postcards only, and effectively banning the delivery of
books, magazines, and enveloped correspondence to prisoners violates the
First Amendment to the U.S. Constitution;

2.

A declaration that Defendants' policies and practices of denying due
process notice and an opportunity to appeal any censorship decisions
violates the Fourteenth Amendment to the U.S. Constitution.

3.

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

4.

Nominal damages for each violation ofHRDC's rights by the Defendants;

5.

Compensatory damages in an amount to be proved at trial;

6.

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

7.

Costs, including reasonable attorneys' fees, under 42 U.S.C. §1988 and
under other applicable law; and

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Any other such relief that this Court deems just and equitable.

VII.

JURY DEMAND

Plaintiff, the Human Rights Defense Center, hereby demands a trial by jury pursuant to
Federal Rule of Civil Procedure 38(b) on all issues so triable.
Dated: October 27, 20 17

Respectfully submitted,

es, Ark. Bar No. 83091
es, arter & Priebe, LLP
500 oadway, Suite 400
Little Rock, AR 72201
Telephone: (501) 372-1414
Facsimile: (501) 372-1659
pjj@jamescarterlaw.com
Bruce E.H. Johnson, Wa. Bar No. 7667*
Davis Wright Tremaine LLP
1201 Third Avenue, Suite 220
Seattle, WA 98101
Telephone: (206) 757-8069
Facsimile: (206) 757-7069
brncejohnson@dwt.com
Sabarish Neelakanta, Fla. Bar #26623*
sneelakanta@Ju·dc-law.org
Masimba Mutamba, Fla. Bar #102772*
mmutamba@hrdc-law.org
Daniel Marshall, Fla. Bar # 617210*
dmarshall@Ju·dc-law.org
HUMAN RJGHTS DEFENSE CENTER
P.O. Box 1151
Lake Worth, FL 33460
Telephone: (561) 360-2523
Facsimile: (866) 735-7136
Attorneys for Plaintiff

*Pro hac vice applications to be filed

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