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Twenty Years of PLN in Court
Since PLN was founded in 1990 we have been censored in prisons and jails around the country. We have always tried to resolve censorship issues administratively, but in cases where the goal of prison officials was to ban PLN or our books, that obviously wasn’t possible. PLN has aggressively challenged censorship across the nation and we have won the vast majority of our court battles. We have also litigated a number of public records cases involving prisons and jails, in which the requested records or fee waivers were denied.
We would like to thank all of the fantastic and dedicated attorneys who have represented PLN in our various legal actions over the years. Thanks also go to those attorneys who volunteered to represent us in lawsuits that we ended up not having to file. A summary of PLN-related litigation over the past two decades includes the following cases.
Concluded Cases
Washington Parole Suit: In 1994, PLN co-founders Ed Mead and Paul Wright sued the Washington Indeterminate Sentencing Review Board, challenging the Board’s order that Ed have no contact with any felons after his release for the purpose of publishing PLN. In an unpublished ruling, Judge Robert Bryan of Tacoma upheld the ban. The case was dismissed as moot by the Ninth Circuit in 1997 when, after three years, Ed was discharged from ISRB supervision. The lawsuit was sponsored by the ACLU of Washington; Frank Cuthbertson and Mike Kipling represented the plaintiffs. See: Mead v. ISRB, U.S.D.C. (W.D. Wash.), Case No. 3:94-cv-05293.
Washington Bulk Mail Ban: When Airway Heights Corrections Center opened in 1994, it banned all third- and fourth-class mail. PLN subscribers Don Miniken and Don MacFarlane filed suit against the practice in 1996. In Miniken v. Walter, 978 F.Supp. 1356 (E.D. WA 1997), the ban was struck down as unconstitutional. In another, unpublished ruling in a separate case, the ban also was struck down. See: MacFarlane v. Walter, U.S.D.C. (E.D. Wash.), Case No. 2:96-cv-03102-LRS. Mickey Gendler represented Don Miniken – who later served as PLN’s executive director – on behalf of the Washington ACLU. In addition to an injunction, the court awarded attorney fees, costs and damages.
Utah Jail Publication Ban: A PLN subscriber was transferred to the Box Elder county jail in Utah, which banned all publications. PLN and another publisher filed suit challenging the ban in 1998. The jail settled soon after the lawsuit was filed, paying damages and attorney fees and changing its policy. Brian Barnard represented PLN in this case. See: Catalyst v. Box Elder County, U.S.D.C. (D. Utah), Case No. 1:98-cv-00130.
Michigan Book Ban: In 1998, the Michigan DOC banned PLN’s book, The Celling of America: An Inside Look at the U.S. Prison Industry, from all of its prisons, claiming it incited violence. PLN, Common Courage Press (the book’s publisher) and two prisoners filed a class action suit challenging the ban in 1999. Michigan prison officials settled the case soon afterwards, paying damages, costs and attorney fees, removing the book from their banned book list, and revamping their censorship procedures. The plaintiffs were represented by attorney Dan Manville, who was later hired as PLN’s general counsel. See: PLN v. Ransom, U.S.D.C. (E.D. Mich.), Case No. 2:99-cv-70523.
Washington Gift Subscription Ban: Beginning in the mid 1990’s, the Washington State Penitentiary in Walla Walla required that prisoners purchase all books and publications using funds in their prison trust accounts. PLN was among the publications censored under this policy. Washington prisoner Clayton Crofton challenged the policy pro se, and obtained two injunctions requiring delivery of his PLN subscription even though it was not purchased from his trust account. The injunctions were upheld on appeal, where Crofton was represented by attorney Mickey Gendler. See: Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999).
Washington Censorship Litigation: In 1997, PLN and other publishers and prisoner plaintiffs filed suit, challenging the Washington DOC’s ban on third-class mail, gift subscriptions, bans on magazine articles, photocopies and court rulings, and limits on newspaper articles, sexually explicit materials, etc. The Washington DOC settled the case in early 2000 by changing its mail censorship policies and paying the plaintiffs’ attorney fees and costs. The suit was sponsored by the ACLU of Washington, and the plaintiffs were represented by attorneys Mickey Gendler and Joe Bringman. See: Humanists of Washington v. Lehman, U.S.D.C. (W.D. Wash.), Case No. 3:97-cv-05499-FDB-JKA.
Alabama Gift Subscriptions: The Alabama DOC prohibited prisoners from receiving gift subscriptions; instead, prisoners were forced to buy subscriptions from their prison trust accounts, and publishers were not notified when their publications were censored. PLN filed suit in 1999, challenging the practice. The case settled in 2000 while a ruling was pending on the parties’ cross motions for summary judgment. Under the terms of the settlement, the Alabama DOC changed its policies to allow prisoners to receive subscriptions and to provide notice to the sender if mail was censored. PLN was represented by Rhonda Brownstein and Catherine Smith of the Southern Poverty Law Center. See: PLN v. Haley, U.S.D.C. (M.D. Ala.), Case No. 2:99-cv-00486.
Nevada DOC Censorship: The Nevada prison system banned all copies of PLN in 2000, claiming the publication constituted “inmate correspondence.” PLN filed suit and obtained a preliminary injunction requiring delivery of PLN subscriptions and mail to Nevada prisoners. The defendants entered into a consent decree in Sept. 2000, agreeing to deliver PLN and paying damages, and the district court awarded attorney fees. PLN was represented by David Fathi of the ACLU National Prison Project and Don Evans of Reno, Nevada. See: PLN v. Crawford, U.S.D.C. (D. Nev.), Case No. 3:00-cv-00373-HDM-RAM.
Utah Jail Censorship: In 2001, PLN filed suit against Millard County, Utah based on a policy or practice by the county jail to deny prisoners access to PLN subscriptions. The case settled, with the county paying PLN’s attorney fees and costs and agreeing to make policy changes. PLN was represented by Brian Barnard. See: PLN v. Millard County, U.S.D.C. (D. Utah), Case No. 2:01-cv-00580-TS.
Oregon Bulk Mail Ban I: From 1991 until 2001, the Oregon DOC banned third-class mail. PLN filed suit in 1998 challenging the ban. The case lost in the district court and PLN appealed to the Ninth Circuit, which reversed in PLN v. Cook, 238 F.3d 1145 (9th Cir. 2001). The Court of Appeals instructed the lower court to enter injunctive relief in PLN’s favor, holding that the ban on bulk mail, and absence of due process when such mail was censored, violated the constitution. The district court entered an injunction and awarded attorney fees in 2001. PLN was represented in the district court by Alison Hardy and Marc Blackman of Portland, Oregon, and on appeal by Sam Stiltner and Janet Stanton of Seattle. See: PLN v. Cook, U.S.D.C. (D. Ore.), Case No. 3:98-cv-01344-MFM.
Oregon Bulk Mail Ban II: Despite the injunction in PLN v. Cook, the Oregon DOC continued to ban mail sent by PLN to Oregon prisoners via standard rate mail. Prison officials also enacted bans on catalogs and gift subscriptions, and failed to provide notice to the sender. PLN filed a second suit in 2002 challenging these practices. The DOC settled the case in 2003 by entering into a consent decree, revising the challenged policies, and paying damages and attorney fees. PLN was represented by Mickey Gendler of Seattle and Marc Blackman of Portland, Oregon. See: PLN v. Schumacher, U.S.D.C. (D. Ore.), Case No. 3:02-cv-00428.
Washington Nazi Guard Censorship: The May 1999 issue of PLN was censored in all Washington state prisons because it contained an investigative exposé of Nazi and white supremacist guards employed by the Washington DOC. PLN filed suit in late 1999, and the district court dismissed the case soon afterwards. In an unpublished decision, the Ninth Circuit reversed and remanded for consideration of equitable relief claims. See: PLN v. Washington DOC, 11 Fed.Appx. 729 (9th Cir. 2001). On remand the district court dismissed the case on the merits, disregarding PLN’s evidence that the censorship was a self-serving ploy by the DOC to keep racist guards on the payroll. The Ninth Circuit affirmed the dismissal in an unpublished decision in 2003. PLN was represented by Frank Cuthbertson (now a Pierce County superior court judge), Darrell Cochran and Jongwon Yi of Gordon Thomas Honeywell in Tacoma, Washington. See: PLN v. Washington DOC, 71 Fed.Appx. 619 (9th Cir. 2003).
Censorship by U.S. Military Prison: The U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas censored an issue of PLN in 2003 due to our advertising content. A federal district court held that the censorship was unconstitutional, and ordered the PLN issue to be delivered to prisoner Craig Waterman, who litigated the case pro se. See: Waterman v. Commandant, 337 F.Supp.2d 1237 (D. KS 2004).
Washington Public Records Case I: In the course of investigating stories, PLN frequently files Public Disclosure Act (PDA) requests with various state agencies. The Washington DOC has a long record of refusing to comply with state disclosure laws in its attempts to cover up malfeasance and misconduct. After being denied documents related to staff misconduct and a prison industry program, PLN filed suit. In this first PDA case, the superior court ordered the DOC to produce documents related to the closing of a prison industries telemarketing company, and awarded attorney fees and statutory penalties. PLN was represented by David Bowman of Davis, Wright & Tremaine. See: PLN v. Washington DOC, Superior Court for Thurston County (WA), Case No. 00-2-00432-7.
Washington Public Records Case II: In PLN’s second PDA case, a Pierce County superior court judge ordered the Washington DOC to provide PLN with records related to the misconduct and drug-related death of an employee at the McNeil Island Corrections Center, as well as the facility’s safety inspection documents. The DOC was ordered to pay PLN’s attorney fees and costs, as well as statutory penalties. PLN was represented by Shelley Hall of Davis, Wright & Tremaine. See: PLN v. Washington DOC, Superior Court of Pierce County (WA), Case No. 00-2-13344-3.
Washington Public Records Case III: In 2000, PLN filed a public records request seeking documents related to discipline involving Washington DOC medical staff who maimed or killed prisoners through medical neglect, as well as documents related to medical staff who had suspended licenses or other medical disciplinary records. The DOC refused to provide the information, claiming that doing so would hinder its law enforcement functions. PLN filed suit and lost at the trial and appellate court levels. See: PLN v. Washington DOC, 118 Wash.App. 1069 (Wash.App. Div. 2, 2003). The Washington Supreme Court reversed and remanded the case in 2005, ordering production of the requested records and awarding attorney fees, costs and statutory penalties. PLN was represented by Andy Mar, Michelle Earle Hubbard and Alison Howard of Davis, Wright & Tremaine. See: PLN v. Washington DOC, 115 P.3d 316 (Wash. 2005).
ADX Publications Ban: In 2003, PLN sued the warden of the U.S. Penitentiary in Florence, Colorado after the ADX – the “super max” prison of the federal Bureau of Prisons – began censoring PLN under a policy that banned all publications that included discussions of prisons or prisoners. The case withstood a motion to dismiss by the defendants; however, the ADX mooted PLN’s claim by changing its policy, and PLN voluntarily withdrew the suit in 2005. PLN was represented by Mickey Gendler of Seattle and Bill Trine of Colorado. See: PLN v. Hood, U.S.D.C. (D. Col.), Case No. 1:03-cv-02516.
Florida Ad Ban and Writer Pay Suit: The Florida DOC began to censor PLN in 2002, allegedly due to advertising content such as ads for discount prison phone services (later expanded to include ads for pen pal services). The DOC also prohibited prisoners from receiving payment for writing for publications. PLN filed suit challenging these policies, and the court denied the defendants’ motion for summary judgment. See: PLN v. Crosby, 2004 WL 2931387. However, the Florida DOC changed its censorship policies at the eve of trial, and the court found the policy change mooted PLN’s claim for injunctive relief; also, the court upheld the DOC’s writer pay policy and ruled PLN didn’t have standing to challenge that policy. PLN appealed, but the Eleventh Circuit affirmed the district court in an unpublished ruling in PLN v. McDonough, 200 Fed.Appx. 873 (11th Cir. 2006). PLN was represented by Mickey Gendler of Seattle and Randall Berg and Cullin O’Brien of the Florida Justice Institute.
Utah DOC Bulk Mail Suit: In 1997, the Utah DOC attempted to ban third-class mail. PLN sued and the ban was quickly changed. The lawsuit, which was joined with separate cases filed by state and county prisoners challenging jail and prison mail policies, was dismissed by the district court in 2004. PLN and the other plaintiffs appealed, and the Tenth Circuit dismissed PLN’s claims in Jones v. Salt Lake County, 503 F.3d 1147 (10th Cir. 2007), because “it was defendants’ negligence, as opposed to the prison’s bulk rate-mail regulations” that led prison officials to reject or censor PLN. PLN was represented by Brian Barnard.
Utah Jail Bulk Mail Ban: In 1998, the San Juan county jail in Utah refused to deliver PLN to a prisoner subscriber because it was sent third-class mail. PLN filed suit challenging the jail’s policy. The suit was consolidated with other cases in the Jones v. Salt Lake County litigation (see above), and eventually settled for fees, damages and mail policy changes. PLN was represented by attorney Brian Barnard. See: Cowles v. Christensen, U.S.D.C. (D. Utah), Case No. 2:99-cv-00149.
Kansas DOC Gift Subscriptions Ban: In 2002, PLN sued the Kansas DOC over its policy requiring that prisoners purchase all subscriptions and publications from their prison trust accounts, a policy limiting such expenses to $40 per month, a ban on publications being sent to certain security levels of prisoners, and the fact that the DOC policy did not provide notice to the publisher when mail was censored. The district court dismissed the case after consolidating it with complaints filed by two Kansas prisoners. See: Zimmerman v. Simons, 260 F.Supp.2d 1077 (D. KS 2003). On appeal, the Tenth Circuit reversed and remanded in Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004), holding that PLN had produced sufficient evidence to go to trial. The appellate court held PLN was entitled to judgment as a matter of law on its due process claims, and ordered the lower court to enter an injunction as to those claims. Following remand, the case went to trial in February 2007. The district court found the DOC policies were unconstitutional and ordered injunctive relief, including notice to publishers when mail is censored, and later awarded attorney fees. PLN was represented by Kansas attorneys Bruce Plenk and Max Kautsch. See: PLN v. Werholtz, U.S.D.C. (D. Kan.), Case No. 5:02-cv-04054-MLB; 2007 WL 2875113.
Washington Bulk Mail, Catalog and Legal Materials Suit: PLN filed suit against the Washington DOC in 2001, challenging the censorship of PLN’s book and subscription flyers, renewal notices, and mail sent via standard rate mail. Also challenged was the DOC’s propensity to censor court rulings, legal pleadings, settlements and verdicts sent to Washington prisoners. The district court entered summary judgment on PLN’s claims, enjoined the bans on bulk mail and catalogs, and required that notice be provided when those items were censored. The court set for trial the claims relating to the censorship of legal materials. See: PLN v. Lehman, 272 F.Supp.2d 1151 (W.D. WA 2003). The defendants filed an interlocutory appeal, which they lost. See: PLN v. Lehman, 397 F.3d 692 (9th Cir. 2005). The case settled on remand, with the DOC agreeing to pay damages and attorney fees. PLN was represented by Jesse Wing, Carrie Wilkinson and Tim Ford of McDonald, Hogue and Bayless in Seattle. See: PLN v. Lehman, U.S.D.C. (W.D. Wash.), Case No. 2:01-cv-01911-RSL.
Dallas Jail Publication Ban: PLN sued jail officials in Dallas, Texas in February 2007 over the jail’s policy of banning all publications as being ostensible “fire hazards.” The county entered into a consent decree in October 2007, agreeing to change the jail’s mail policies and paying damages, attorney fees and costs. PLN was represented by Scott Medlock of the Texas Civil Rights Project. See: PLN v. Lindsey, U.S.D.C. (N.D. Tex.), Case No. 3:07-cv-00367.
CDCR Mail Policy Suit: In 2006, the California Department of Corrections and Rehabilitation (CDCR) agreed to settle PLN’s claims that numerous aspects of the prison system’s mail procedures violated PLN’s federal and state rights. As part of the settlement the CDCR agreed to substantially change its mail rules and policies, and ordered five-year PLN subscriptions for all CDCR facilities. The district court maintained jurisdiction to enforce the agreement and awarded attorney fees to PLN in 2008. See: PLN v. Schwarzenegger, 561 F.Supp.2d 1095 (N.D. Cal. 2008). Although the case is closed, PLN continues to monitor CDCR’s compliance with the settlement. PLN was represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. 4:07-cv-02058.
Massachusetts Book Censorship: In April 2008, after fruitless attempts at negotiation, PLN sued the Massachusetts DOC to challenge the exclusion of PLN’s books from the department’s approved vendor list. A week after filing suit, PLN was added to the vendor list. The case settled in May 2009 with the DOC paying damages and attorney fees. PLN was represented by attorneys Howard Friedman and David Milton. See: PLN v. Clarke, U.S.D.C. (D. Mass.), Case No. 1:08-cv-10677-RGS.
Intervention in CCA FLSA Suit: In July 2009, PLN filed a motion to intervene in a class action Fair Labor Standards Act lawsuit in U.S. District Court in Kansas. The suit, which alleged that CCA had violated labor laws by failing to fully compensate its employees, had settled in February 2009; however, the terms were confidential. PLN moved to unseal the settlement. The district court granted PLN’s motion despite opposition from CCA, and unsealed the settlement on August 27, 2009; PLN then reported the amount and terms of the settlement agreement. PLN was represented by Stephen Bonney, Chief Counsel and Legal Director of the ACLU of Kansas and Western Missouri. The FLSA class action suit was Barnwell v. CCA, U.S.D.C. (D. Kan.), Case No. 2:08-cv-02151-JWL-DJW.
GEO Group Records Case: PLN sued the GEO Group (formerly Wackenhut Corrections) in state court in December 2005 under Florida’s public records law, seeking information about payouts in lawsuits filed against the company and sanctions the company had faced for contractual violations. The court granted four motions to compel and GEO eventually produced the requested records in 2009. The case concluded in 2010, with GEO agreeing to pay PLN’s attorney fees. PLN was represented by Lake Worth attorney Frank Kreidler. See: PLN v. The GEO Group, Inc., Circuit Court of the 15th Judicial Circuit of Florida, Case No. 50 2005 CA 011195 AA.
CCA Arizona Censorship: On September 2, 2009, PLN filed suit against CCA in federal court, claiming that the company’s Saguaro Correctional Facility in Arizona had censored PLN books ordered by prisoners. The Saguaro facility reportedly had a policy that required prisoners to order books from Barnes & Nobles or Amazon, and prohibited book orders from third parties. PLN did not receive notice that its books were being censored. The case settled in March 2010, with CCA paying damages and attorney fees and agreeing to make policy changes. PLN was represented by Dan Pochoda, Legal Director of the ACLU of Arizona, and by the California law firm of Rosen, Bien and Galvan LLP. See: PLN v. CCA, U.S.D.C. (D. Ariz.), Case No. 2:09-cv-01831-ROS.
Mississippi DOC / Global-Tel Records Case: On March 10, 2009, PLN filed suit against the Mississippi Dept. of Corrections and Global Tel*Link, a prison phone service company, to obtain a copy of Global Tel’s contract with the Mississippi DOC. The contract had been sealed by a state court in a previous case involving Global Tel. PLN settled the suit in June 2009, with Global Tel agreeing to produce a copy of the contract and related documents. PLN was represented by Jackson, Mississippi attorneys Robert B. McDuff and Sibyl C. Byrd. See: PLN v. Mississippi Dept. of Corrections, Chancery Court of Hinds County (MS), Case No. G 2009 391 I.
Pending Cases
BOP FOIA Case: This case involves PLN’s Freedom of Information Act (FOIA) suit against the Bureau of Prisons (BOP), which was filed in 2005 after the BOP demanded that PLN pay a large sum before it would produce records related to settlements and payouts in litigation against the department. Summary judgment was granted in PLN’s favor in June 2006 in PLN v. Lappin, 436 F.Supp.2d 17 (D. DC 2006), and the court awarded PLN attorney fees. The BOP produced some records, but most were redacted or incomplete. PLN prevailed in another summary judgment motion in March 2009. See: PLN v. Lappin, 603 F.Supp.2d 124 (D. DC 2009). The BOP is still in the process of producing the requested records. PLN has been represented through most of this litigation by attorney Ed Elder.
Fulton County Jail Publication Ban: PLN sued the Fulton County jail in Atlanta, Georgia in October 2007 over the jail’s policy of banning all books and non-religious publications. In February 2008 the district court issued a preliminary injunction enjoining the policy, and ordered that PLN subscriptions and book orders be delivered to prisoners. The suit settled in December 2009 with the county agreeing to pay monetary damages; the case remains pending on the issue of attorney fees. PLN is represented by Atlanta attorneys Brian Spears and Gerald Weber. See: PLN v. Freeman, U.S.D.C. (N.D. GA), Case No. 1:07-cv-02618-CAP.
CCA Tenn. Public Records Case: In May 2008, PLN associate editor Alex Friedmann sued Corrections Corporation of America (CCA) under Tennessee’s public records law, seeking disclosure of records related to CCA’s operation of prisons and jails in Tennessee. The trial court issued a landmark ruling in favor of PLN in 2008, but denied attorney fees. CCA and PLN cross-appealed, and the Tennessee ACLU, Reporters Committee for Freedom of the Press, Society of Professional Journalists, American Society for Newspaper Editors, Associated Press and Association of Capitol Reporters and Editors filed an amicus brief on PLN’s behalf. On August 5, 2009, the Court of Appeals found that CCA was the functional equivalent of a state agency and thus subject to the state’s public records law, and, in a revised ruling following a motion to rehear, held in September 2009 that the records requested from CCA were subject to disclosure for all but one facility. See: Friedmann v. CCA, 2009 WL 3131610. CCA appealed to the Tennessee Supreme Court and PLN cross-appealed on the issue of attorney fees. The Supreme Court denied the appeals in March 2010, leaving the appellate ruling intact; the case is being remanded to the trial court for further proceedings. PLN is represented by Memphis attorney Andy Clarke. See: Friedmann v. CCA, Chancery Court for Davidson County (TN), Case No. 01-1105-I
BOP Video FOIA Case: PLN filed a Freedom of Information Act suit against the Executive Office of U.S. Attorneys in May 2008, seeking disclosure of a Bureau of Prisons (BOP) videotape of the murder of a prisoner in the segregation unit at the U.S. Penitentiary in Florence, Colorado. The video was shown in open court during the murder trials of the victim’s assailants; however, the government refused to release it to PLN. The district court granted in part and denied in part cross-motions for summary judgment in Sept. 2009, and ordered the BOP to produce only part of the video. See: PLN v. EOUSA, 2009 WL 2982841. The case is presently on appeal to the Tenth Circuit, and Westword, 60 Minutes, the Associated Press, the American Society of News Editors and the ACLU of Colorado filed an amicus brief in support of PLN’s appeal. PLN is represented by attorney Gail Johnson. See: PLN v. EOUSA, U.S.D.C. (D. Col.), Case No. 1:08-cv-01055-MSK.
DC Public Records Suit: In June 2008, PLN filed a public records suit against the District of Columbia seeking information about jail-related litigation payouts. The lawsuit challenged the District’s refusal to provide the requested records in electronic format and its refusal to grant a fee waiver. Following several court hearings, the defendants are in the process of producing the requested records. PLN is represented by the Partnership for Civil Justice. See: PLN v. District of Columbia, Superior Court of the District of Columbia, Case No. 0004598-08.
Los Angeles Public Records Suit: On March 3, 2009, PLN filed a lawsuit against the County of Los Angeles, the Sheriff’s Department and the Office of County Counsel, after submitting records requests for documents related to litigation involving the Los Angeles County jail. The county failed to produce the requested records and did not respond to a follow-up letter. PLN is represented by the law firm of Rosen, Bien and Galvan LLP, and Najeeb N. Khoury and Padraic Glaspy of Howarth & Smith. See: PLN v. Los Angeles County, Superior Court of Los Angeles County (CA), Case No. BS119336.
Pennsylvania DOC Records Case: In May 2009, PLN filed a petition in the Commonwealth Court of Pennsylvania under the state’s Right-to-Know law, after the Office of Open Records upheld the denial of a fee waiver in PLN’s public records request submitted to the Pennsylvania Department of Corrections. The DOC had refused to waive $8,750 in copy fees, refused to provide the records in electronic format, and later denied PLN’s request with respect to certain documents. The court ruled on April 8, 2010 that the DOC had failed to substantiate the amount of copy fees and failed to justify its denial of PLN’s fee waiver request. The decision by the Office of Open Records was therefore vacated and remanded for further proceedings. PLN is represented by Mary Catherine Roper, a staff attorney with the Pennsylvania ACLU, as well as Andrew Foster, Alicia Hickok and Richard Coe. See: PLN v. Office of Open Records, Commonwealth Court of Pennsylvania, Case No. 969 CD 2009; 2010 WL 1379730.
San Francisco Public Records Suit: In August 2009, PLN sued the City and County of San Francisco after submitting records requests for documents related to litigation involving the San Francisco jail. Although a partial spreadsheet of cases was produced, the requested records were not. The suit was filed after the City Attorney’s office failed to respond to PLN’s follow-up letters. PLN is represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. City and County of San Francisco, Superior Court for the County of San Francisco, Case No. CGC 09 491641.
Connecticut FOIA Appeal: When PLN requested documents related to a settlement involving a prisoners’ death at the jail in Hartford, Connecticut, the city denied PLN’s request for a fee waiver. PLN appealed to the state’s FOIA Commission, which ruled in September 2009 that PLN was entitled to a waiver. Two months later the city appealed the Commission’s ruling to Superior Court, where it remains pending. PLN is represented by attorney Brett Dignam at Yale Law School and law students Megan Quattlebaum and Robyn Gallagher. See: Hartford Corporation Counsel v. FOI Commission, Superior Court, Judicial District of New Britain (CT), Case No. HHB CV 09 5014688.
Virginia DOC Censorship: On October 8, 2009, PLN filed suit in federal court against the Virginia Dept. of Corrections. The complaint alleges that Virginia prison officials censored PLN’s magazine and correspondence, failed to provide PLN with timely and adequate notice of such censorship, and barred prisoners from receiving gift books or subscriptions from third parties. PLN is represented by attorneys Jeffrey E. Fogel and Steven D. Rosenfield, and HRDC counsel Dan Manville. See: PLN v. Johnson, U.S.D.C. (W.D. VA), Case No. 3:09-cv-00068.
TDCJ Book Censorship: On November 4, 2009, PLN filed suit against the Texas Dept. of Criminal Justice (TDCJ) after the TDCJ censored two PLN books ordered by Texas prisoners. The TDCJ censored Women Behind Bars by former PLN board member Silja Talvi, and Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer. PLN contends that the censorship was improper and the TDCJ did not provide notice when the books were censored. On December 17, 2009, the district court denied the defendants’ motion to dismiss and deferred judgment on the issue of qualified immunity in PLN v. Livingston, 2009 WL 5170229. PLN is represented by attorney Scott Medlock with the Texas Civil Rights Project and HRDC counsel Dan Manville. See: PLN v. Livingston, U.S.D.C. (S.D. Tex.), Case No. 2:09-cv-00296.
Louisiana Jail Censorship: On December 3, 2009, PLN sued the St. Bernard Parish Prison in Louisiana, which had a policy and practice of prohibiting magazines, newspapers and books from outside publishers or distributors. No notice was provided to PLN when its magazine and book orders were censored by the jail. PLN is represented by New Orleans attorneys Mary Howell and Elizabeth Cumming, and HRDC counsel Dan Manville. See: PLN and HRDC v. Stephens, U.S.D.C. (E.D. LA), Case No. 2:09-cv-07515-MVL-DEK.
CDCR Public Records Case: PLN filed suit in state court against the California Dept. of Corrections and Rehabilitation (CDCR) in December 2007, after the CDCR failed to respond to PLN’s public records request seeking payouts in litigation involving the California prison system. In December 2009 the court held the CDCR must produce the requested records, and they are in the process of doing so. PLN is represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. Tilton, Superior Court for Sacramento County, Case No. 34-2007-00883573-CU-PT-GDS.
Conclusion
In addition to the above cases, PLN has joined amicus briefs in several U.S. Supreme Court cases on behalf of prisoner plaintiffs, including Goodman v. Georgia, 546 U.S. 151 (2006), which involved the right of disabled prisoners to sue for monetary damages; Woodford v. Ngo, 548 U.S. 81 (2006), involving exhaustion of administrative remedies under the Prison Litigation Reform Act; and Jones v. Bock, 549 U.S. 199 (2007), which likewise involved exhaustion under the PLRA.
PLN also joined amicus briefs in several federal district court and appellate cases, including an unsuccessful certiorari petition in Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. 2009), which challenged rules prohibiting in-person media interviews with federal death row prisoners, and a successful petition for en banc review in Nelson v. CMS, 583 F.3d 522 (8th Cir. 2009), which challenged the practice of shackling pregnant prisoners in labor.
PLN has achieved impressive results over the years through our litigation, and we have extensively relied on attorneys willing to represent us on a contingency or pro bono basis. Our courtroom successes have been due to the excellent lawyers who represent PLN and PLN’s staff who are able to marshal the facts necessary for our attorneys to prove and win our claims.
The cases we file directly impact the First Amendment rights of both PLN and our subscribers, as well as other publishers and prisoners. In most of our censorship cases we attack broader censorship practices that have an impact beyond the immediate parties to the suit. We are committed to the principle that any prisoner in the U.S. who wants to receive PLN or the books we distribute should be able to do so, and PLN is one of the few publishers that is consistently willing to assert important free speech and public records rights through litigation. Unfortunately, we have more cases in the works.
We would like to thank all of the fantastic and dedicated attorneys who have represented PLN in our various legal actions over the years. Thanks also go to those attorneys who volunteered to represent us in lawsuits that we ended up not having to file. A summary of PLN-related litigation over the past two decades includes the following cases.
Concluded Cases
Washington Parole Suit: In 1994, PLN co-founders Ed Mead and Paul Wright sued the Washington Indeterminate Sentencing Review Board, challenging the Board’s order that Ed have no contact with any felons after his release for the purpose of publishing PLN. In an unpublished ruling, Judge Robert Bryan of Tacoma upheld the ban. The case was dismissed as moot by the Ninth Circuit in 1997 when, after three years, Ed was discharged from ISRB supervision. The lawsuit was sponsored by the ACLU of Washington; Frank Cuthbertson and Mike Kipling represented the plaintiffs. See: Mead v. ISRB, U.S.D.C. (W.D. Wash.), Case No. 3:94-cv-05293.
Washington Bulk Mail Ban: When Airway Heights Corrections Center opened in 1994, it banned all third- and fourth-class mail. PLN subscribers Don Miniken and Don MacFarlane filed suit against the practice in 1996. In Miniken v. Walter, 978 F.Supp. 1356 (E.D. WA 1997), the ban was struck down as unconstitutional. In another, unpublished ruling in a separate case, the ban also was struck down. See: MacFarlane v. Walter, U.S.D.C. (E.D. Wash.), Case No. 2:96-cv-03102-LRS. Mickey Gendler represented Don Miniken – who later served as PLN’s executive director – on behalf of the Washington ACLU. In addition to an injunction, the court awarded attorney fees, costs and damages.
Utah Jail Publication Ban: A PLN subscriber was transferred to the Box Elder county jail in Utah, which banned all publications. PLN and another publisher filed suit challenging the ban in 1998. The jail settled soon after the lawsuit was filed, paying damages and attorney fees and changing its policy. Brian Barnard represented PLN in this case. See: Catalyst v. Box Elder County, U.S.D.C. (D. Utah), Case No. 1:98-cv-00130.
Michigan Book Ban: In 1998, the Michigan DOC banned PLN’s book, The Celling of America: An Inside Look at the U.S. Prison Industry, from all of its prisons, claiming it incited violence. PLN, Common Courage Press (the book’s publisher) and two prisoners filed a class action suit challenging the ban in 1999. Michigan prison officials settled the case soon afterwards, paying damages, costs and attorney fees, removing the book from their banned book list, and revamping their censorship procedures. The plaintiffs were represented by attorney Dan Manville, who was later hired as PLN’s general counsel. See: PLN v. Ransom, U.S.D.C. (E.D. Mich.), Case No. 2:99-cv-70523.
Washington Gift Subscription Ban: Beginning in the mid 1990’s, the Washington State Penitentiary in Walla Walla required that prisoners purchase all books and publications using funds in their prison trust accounts. PLN was among the publications censored under this policy. Washington prisoner Clayton Crofton challenged the policy pro se, and obtained two injunctions requiring delivery of his PLN subscription even though it was not purchased from his trust account. The injunctions were upheld on appeal, where Crofton was represented by attorney Mickey Gendler. See: Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999).
Washington Censorship Litigation: In 1997, PLN and other publishers and prisoner plaintiffs filed suit, challenging the Washington DOC’s ban on third-class mail, gift subscriptions, bans on magazine articles, photocopies and court rulings, and limits on newspaper articles, sexually explicit materials, etc. The Washington DOC settled the case in early 2000 by changing its mail censorship policies and paying the plaintiffs’ attorney fees and costs. The suit was sponsored by the ACLU of Washington, and the plaintiffs were represented by attorneys Mickey Gendler and Joe Bringman. See: Humanists of Washington v. Lehman, U.S.D.C. (W.D. Wash.), Case No. 3:97-cv-05499-FDB-JKA.
Alabama Gift Subscriptions: The Alabama DOC prohibited prisoners from receiving gift subscriptions; instead, prisoners were forced to buy subscriptions from their prison trust accounts, and publishers were not notified when their publications were censored. PLN filed suit in 1999, challenging the practice. The case settled in 2000 while a ruling was pending on the parties’ cross motions for summary judgment. Under the terms of the settlement, the Alabama DOC changed its policies to allow prisoners to receive subscriptions and to provide notice to the sender if mail was censored. PLN was represented by Rhonda Brownstein and Catherine Smith of the Southern Poverty Law Center. See: PLN v. Haley, U.S.D.C. (M.D. Ala.), Case No. 2:99-cv-00486.
Nevada DOC Censorship: The Nevada prison system banned all copies of PLN in 2000, claiming the publication constituted “inmate correspondence.” PLN filed suit and obtained a preliminary injunction requiring delivery of PLN subscriptions and mail to Nevada prisoners. The defendants entered into a consent decree in Sept. 2000, agreeing to deliver PLN and paying damages, and the district court awarded attorney fees. PLN was represented by David Fathi of the ACLU National Prison Project and Don Evans of Reno, Nevada. See: PLN v. Crawford, U.S.D.C. (D. Nev.), Case No. 3:00-cv-00373-HDM-RAM.
Utah Jail Censorship: In 2001, PLN filed suit against Millard County, Utah based on a policy or practice by the county jail to deny prisoners access to PLN subscriptions. The case settled, with the county paying PLN’s attorney fees and costs and agreeing to make policy changes. PLN was represented by Brian Barnard. See: PLN v. Millard County, U.S.D.C. (D. Utah), Case No. 2:01-cv-00580-TS.
Oregon Bulk Mail Ban I: From 1991 until 2001, the Oregon DOC banned third-class mail. PLN filed suit in 1998 challenging the ban. The case lost in the district court and PLN appealed to the Ninth Circuit, which reversed in PLN v. Cook, 238 F.3d 1145 (9th Cir. 2001). The Court of Appeals instructed the lower court to enter injunctive relief in PLN’s favor, holding that the ban on bulk mail, and absence of due process when such mail was censored, violated the constitution. The district court entered an injunction and awarded attorney fees in 2001. PLN was represented in the district court by Alison Hardy and Marc Blackman of Portland, Oregon, and on appeal by Sam Stiltner and Janet Stanton of Seattle. See: PLN v. Cook, U.S.D.C. (D. Ore.), Case No. 3:98-cv-01344-MFM.
Oregon Bulk Mail Ban II: Despite the injunction in PLN v. Cook, the Oregon DOC continued to ban mail sent by PLN to Oregon prisoners via standard rate mail. Prison officials also enacted bans on catalogs and gift subscriptions, and failed to provide notice to the sender. PLN filed a second suit in 2002 challenging these practices. The DOC settled the case in 2003 by entering into a consent decree, revising the challenged policies, and paying damages and attorney fees. PLN was represented by Mickey Gendler of Seattle and Marc Blackman of Portland, Oregon. See: PLN v. Schumacher, U.S.D.C. (D. Ore.), Case No. 3:02-cv-00428.
Washington Nazi Guard Censorship: The May 1999 issue of PLN was censored in all Washington state prisons because it contained an investigative exposé of Nazi and white supremacist guards employed by the Washington DOC. PLN filed suit in late 1999, and the district court dismissed the case soon afterwards. In an unpublished decision, the Ninth Circuit reversed and remanded for consideration of equitable relief claims. See: PLN v. Washington DOC, 11 Fed.Appx. 729 (9th Cir. 2001). On remand the district court dismissed the case on the merits, disregarding PLN’s evidence that the censorship was a self-serving ploy by the DOC to keep racist guards on the payroll. The Ninth Circuit affirmed the dismissal in an unpublished decision in 2003. PLN was represented by Frank Cuthbertson (now a Pierce County superior court judge), Darrell Cochran and Jongwon Yi of Gordon Thomas Honeywell in Tacoma, Washington. See: PLN v. Washington DOC, 71 Fed.Appx. 619 (9th Cir. 2003).
Censorship by U.S. Military Prison: The U.S. Disciplinary Barracks at Ft. Leavenworth, Kansas censored an issue of PLN in 2003 due to our advertising content. A federal district court held that the censorship was unconstitutional, and ordered the PLN issue to be delivered to prisoner Craig Waterman, who litigated the case pro se. See: Waterman v. Commandant, 337 F.Supp.2d 1237 (D. KS 2004).
Washington Public Records Case I: In the course of investigating stories, PLN frequently files Public Disclosure Act (PDA) requests with various state agencies. The Washington DOC has a long record of refusing to comply with state disclosure laws in its attempts to cover up malfeasance and misconduct. After being denied documents related to staff misconduct and a prison industry program, PLN filed suit. In this first PDA case, the superior court ordered the DOC to produce documents related to the closing of a prison industries telemarketing company, and awarded attorney fees and statutory penalties. PLN was represented by David Bowman of Davis, Wright & Tremaine. See: PLN v. Washington DOC, Superior Court for Thurston County (WA), Case No. 00-2-00432-7.
Washington Public Records Case II: In PLN’s second PDA case, a Pierce County superior court judge ordered the Washington DOC to provide PLN with records related to the misconduct and drug-related death of an employee at the McNeil Island Corrections Center, as well as the facility’s safety inspection documents. The DOC was ordered to pay PLN’s attorney fees and costs, as well as statutory penalties. PLN was represented by Shelley Hall of Davis, Wright & Tremaine. See: PLN v. Washington DOC, Superior Court of Pierce County (WA), Case No. 00-2-13344-3.
Washington Public Records Case III: In 2000, PLN filed a public records request seeking documents related to discipline involving Washington DOC medical staff who maimed or killed prisoners through medical neglect, as well as documents related to medical staff who had suspended licenses or other medical disciplinary records. The DOC refused to provide the information, claiming that doing so would hinder its law enforcement functions. PLN filed suit and lost at the trial and appellate court levels. See: PLN v. Washington DOC, 118 Wash.App. 1069 (Wash.App. Div. 2, 2003). The Washington Supreme Court reversed and remanded the case in 2005, ordering production of the requested records and awarding attorney fees, costs and statutory penalties. PLN was represented by Andy Mar, Michelle Earle Hubbard and Alison Howard of Davis, Wright & Tremaine. See: PLN v. Washington DOC, 115 P.3d 316 (Wash. 2005).
ADX Publications Ban: In 2003, PLN sued the warden of the U.S. Penitentiary in Florence, Colorado after the ADX – the “super max” prison of the federal Bureau of Prisons – began censoring PLN under a policy that banned all publications that included discussions of prisons or prisoners. The case withstood a motion to dismiss by the defendants; however, the ADX mooted PLN’s claim by changing its policy, and PLN voluntarily withdrew the suit in 2005. PLN was represented by Mickey Gendler of Seattle and Bill Trine of Colorado. See: PLN v. Hood, U.S.D.C. (D. Col.), Case No. 1:03-cv-02516.
Florida Ad Ban and Writer Pay Suit: The Florida DOC began to censor PLN in 2002, allegedly due to advertising content such as ads for discount prison phone services (later expanded to include ads for pen pal services). The DOC also prohibited prisoners from receiving payment for writing for publications. PLN filed suit challenging these policies, and the court denied the defendants’ motion for summary judgment. See: PLN v. Crosby, 2004 WL 2931387. However, the Florida DOC changed its censorship policies at the eve of trial, and the court found the policy change mooted PLN’s claim for injunctive relief; also, the court upheld the DOC’s writer pay policy and ruled PLN didn’t have standing to challenge that policy. PLN appealed, but the Eleventh Circuit affirmed the district court in an unpublished ruling in PLN v. McDonough, 200 Fed.Appx. 873 (11th Cir. 2006). PLN was represented by Mickey Gendler of Seattle and Randall Berg and Cullin O’Brien of the Florida Justice Institute.
Utah DOC Bulk Mail Suit: In 1997, the Utah DOC attempted to ban third-class mail. PLN sued and the ban was quickly changed. The lawsuit, which was joined with separate cases filed by state and county prisoners challenging jail and prison mail policies, was dismissed by the district court in 2004. PLN and the other plaintiffs appealed, and the Tenth Circuit dismissed PLN’s claims in Jones v. Salt Lake County, 503 F.3d 1147 (10th Cir. 2007), because “it was defendants’ negligence, as opposed to the prison’s bulk rate-mail regulations” that led prison officials to reject or censor PLN. PLN was represented by Brian Barnard.
Utah Jail Bulk Mail Ban: In 1998, the San Juan county jail in Utah refused to deliver PLN to a prisoner subscriber because it was sent third-class mail. PLN filed suit challenging the jail’s policy. The suit was consolidated with other cases in the Jones v. Salt Lake County litigation (see above), and eventually settled for fees, damages and mail policy changes. PLN was represented by attorney Brian Barnard. See: Cowles v. Christensen, U.S.D.C. (D. Utah), Case No. 2:99-cv-00149.
Kansas DOC Gift Subscriptions Ban: In 2002, PLN sued the Kansas DOC over its policy requiring that prisoners purchase all subscriptions and publications from their prison trust accounts, a policy limiting such expenses to $40 per month, a ban on publications being sent to certain security levels of prisoners, and the fact that the DOC policy did not provide notice to the publisher when mail was censored. The district court dismissed the case after consolidating it with complaints filed by two Kansas prisoners. See: Zimmerman v. Simons, 260 F.Supp.2d 1077 (D. KS 2003). On appeal, the Tenth Circuit reversed and remanded in Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004), holding that PLN had produced sufficient evidence to go to trial. The appellate court held PLN was entitled to judgment as a matter of law on its due process claims, and ordered the lower court to enter an injunction as to those claims. Following remand, the case went to trial in February 2007. The district court found the DOC policies were unconstitutional and ordered injunctive relief, including notice to publishers when mail is censored, and later awarded attorney fees. PLN was represented by Kansas attorneys Bruce Plenk and Max Kautsch. See: PLN v. Werholtz, U.S.D.C. (D. Kan.), Case No. 5:02-cv-04054-MLB; 2007 WL 2875113.
Washington Bulk Mail, Catalog and Legal Materials Suit: PLN filed suit against the Washington DOC in 2001, challenging the censorship of PLN’s book and subscription flyers, renewal notices, and mail sent via standard rate mail. Also challenged was the DOC’s propensity to censor court rulings, legal pleadings, settlements and verdicts sent to Washington prisoners. The district court entered summary judgment on PLN’s claims, enjoined the bans on bulk mail and catalogs, and required that notice be provided when those items were censored. The court set for trial the claims relating to the censorship of legal materials. See: PLN v. Lehman, 272 F.Supp.2d 1151 (W.D. WA 2003). The defendants filed an interlocutory appeal, which they lost. See: PLN v. Lehman, 397 F.3d 692 (9th Cir. 2005). The case settled on remand, with the DOC agreeing to pay damages and attorney fees. PLN was represented by Jesse Wing, Carrie Wilkinson and Tim Ford of McDonald, Hogue and Bayless in Seattle. See: PLN v. Lehman, U.S.D.C. (W.D. Wash.), Case No. 2:01-cv-01911-RSL.
Dallas Jail Publication Ban: PLN sued jail officials in Dallas, Texas in February 2007 over the jail’s policy of banning all publications as being ostensible “fire hazards.” The county entered into a consent decree in October 2007, agreeing to change the jail’s mail policies and paying damages, attorney fees and costs. PLN was represented by Scott Medlock of the Texas Civil Rights Project. See: PLN v. Lindsey, U.S.D.C. (N.D. Tex.), Case No. 3:07-cv-00367.
CDCR Mail Policy Suit: In 2006, the California Department of Corrections and Rehabilitation (CDCR) agreed to settle PLN’s claims that numerous aspects of the prison system’s mail procedures violated PLN’s federal and state rights. As part of the settlement the CDCR agreed to substantially change its mail rules and policies, and ordered five-year PLN subscriptions for all CDCR facilities. The district court maintained jurisdiction to enforce the agreement and awarded attorney fees to PLN in 2008. See: PLN v. Schwarzenegger, 561 F.Supp.2d 1095 (N.D. Cal. 2008). Although the case is closed, PLN continues to monitor CDCR’s compliance with the settlement. PLN was represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. 4:07-cv-02058.
Massachusetts Book Censorship: In April 2008, after fruitless attempts at negotiation, PLN sued the Massachusetts DOC to challenge the exclusion of PLN’s books from the department’s approved vendor list. A week after filing suit, PLN was added to the vendor list. The case settled in May 2009 with the DOC paying damages and attorney fees. PLN was represented by attorneys Howard Friedman and David Milton. See: PLN v. Clarke, U.S.D.C. (D. Mass.), Case No. 1:08-cv-10677-RGS.
Intervention in CCA FLSA Suit: In July 2009, PLN filed a motion to intervene in a class action Fair Labor Standards Act lawsuit in U.S. District Court in Kansas. The suit, which alleged that CCA had violated labor laws by failing to fully compensate its employees, had settled in February 2009; however, the terms were confidential. PLN moved to unseal the settlement. The district court granted PLN’s motion despite opposition from CCA, and unsealed the settlement on August 27, 2009; PLN then reported the amount and terms of the settlement agreement. PLN was represented by Stephen Bonney, Chief Counsel and Legal Director of the ACLU of Kansas and Western Missouri. The FLSA class action suit was Barnwell v. CCA, U.S.D.C. (D. Kan.), Case No. 2:08-cv-02151-JWL-DJW.
GEO Group Records Case: PLN sued the GEO Group (formerly Wackenhut Corrections) in state court in December 2005 under Florida’s public records law, seeking information about payouts in lawsuits filed against the company and sanctions the company had faced for contractual violations. The court granted four motions to compel and GEO eventually produced the requested records in 2009. The case concluded in 2010, with GEO agreeing to pay PLN’s attorney fees. PLN was represented by Lake Worth attorney Frank Kreidler. See: PLN v. The GEO Group, Inc., Circuit Court of the 15th Judicial Circuit of Florida, Case No. 50 2005 CA 011195 AA.
CCA Arizona Censorship: On September 2, 2009, PLN filed suit against CCA in federal court, claiming that the company’s Saguaro Correctional Facility in Arizona had censored PLN books ordered by prisoners. The Saguaro facility reportedly had a policy that required prisoners to order books from Barnes & Nobles or Amazon, and prohibited book orders from third parties. PLN did not receive notice that its books were being censored. The case settled in March 2010, with CCA paying damages and attorney fees and agreeing to make policy changes. PLN was represented by Dan Pochoda, Legal Director of the ACLU of Arizona, and by the California law firm of Rosen, Bien and Galvan LLP. See: PLN v. CCA, U.S.D.C. (D. Ariz.), Case No. 2:09-cv-01831-ROS.
Mississippi DOC / Global-Tel Records Case: On March 10, 2009, PLN filed suit against the Mississippi Dept. of Corrections and Global Tel*Link, a prison phone service company, to obtain a copy of Global Tel’s contract with the Mississippi DOC. The contract had been sealed by a state court in a previous case involving Global Tel. PLN settled the suit in June 2009, with Global Tel agreeing to produce a copy of the contract and related documents. PLN was represented by Jackson, Mississippi attorneys Robert B. McDuff and Sibyl C. Byrd. See: PLN v. Mississippi Dept. of Corrections, Chancery Court of Hinds County (MS), Case No. G 2009 391 I.
Pending Cases
BOP FOIA Case: This case involves PLN’s Freedom of Information Act (FOIA) suit against the Bureau of Prisons (BOP), which was filed in 2005 after the BOP demanded that PLN pay a large sum before it would produce records related to settlements and payouts in litigation against the department. Summary judgment was granted in PLN’s favor in June 2006 in PLN v. Lappin, 436 F.Supp.2d 17 (D. DC 2006), and the court awarded PLN attorney fees. The BOP produced some records, but most were redacted or incomplete. PLN prevailed in another summary judgment motion in March 2009. See: PLN v. Lappin, 603 F.Supp.2d 124 (D. DC 2009). The BOP is still in the process of producing the requested records. PLN has been represented through most of this litigation by attorney Ed Elder.
Fulton County Jail Publication Ban: PLN sued the Fulton County jail in Atlanta, Georgia in October 2007 over the jail’s policy of banning all books and non-religious publications. In February 2008 the district court issued a preliminary injunction enjoining the policy, and ordered that PLN subscriptions and book orders be delivered to prisoners. The suit settled in December 2009 with the county agreeing to pay monetary damages; the case remains pending on the issue of attorney fees. PLN is represented by Atlanta attorneys Brian Spears and Gerald Weber. See: PLN v. Freeman, U.S.D.C. (N.D. GA), Case No. 1:07-cv-02618-CAP.
CCA Tenn. Public Records Case: In May 2008, PLN associate editor Alex Friedmann sued Corrections Corporation of America (CCA) under Tennessee’s public records law, seeking disclosure of records related to CCA’s operation of prisons and jails in Tennessee. The trial court issued a landmark ruling in favor of PLN in 2008, but denied attorney fees. CCA and PLN cross-appealed, and the Tennessee ACLU, Reporters Committee for Freedom of the Press, Society of Professional Journalists, American Society for Newspaper Editors, Associated Press and Association of Capitol Reporters and Editors filed an amicus brief on PLN’s behalf. On August 5, 2009, the Court of Appeals found that CCA was the functional equivalent of a state agency and thus subject to the state’s public records law, and, in a revised ruling following a motion to rehear, held in September 2009 that the records requested from CCA were subject to disclosure for all but one facility. See: Friedmann v. CCA, 2009 WL 3131610. CCA appealed to the Tennessee Supreme Court and PLN cross-appealed on the issue of attorney fees. The Supreme Court denied the appeals in March 2010, leaving the appellate ruling intact; the case is being remanded to the trial court for further proceedings. PLN is represented by Memphis attorney Andy Clarke. See: Friedmann v. CCA, Chancery Court for Davidson County (TN), Case No. 01-1105-I
BOP Video FOIA Case: PLN filed a Freedom of Information Act suit against the Executive Office of U.S. Attorneys in May 2008, seeking disclosure of a Bureau of Prisons (BOP) videotape of the murder of a prisoner in the segregation unit at the U.S. Penitentiary in Florence, Colorado. The video was shown in open court during the murder trials of the victim’s assailants; however, the government refused to release it to PLN. The district court granted in part and denied in part cross-motions for summary judgment in Sept. 2009, and ordered the BOP to produce only part of the video. See: PLN v. EOUSA, 2009 WL 2982841. The case is presently on appeal to the Tenth Circuit, and Westword, 60 Minutes, the Associated Press, the American Society of News Editors and the ACLU of Colorado filed an amicus brief in support of PLN’s appeal. PLN is represented by attorney Gail Johnson. See: PLN v. EOUSA, U.S.D.C. (D. Col.), Case No. 1:08-cv-01055-MSK.
DC Public Records Suit: In June 2008, PLN filed a public records suit against the District of Columbia seeking information about jail-related litigation payouts. The lawsuit challenged the District’s refusal to provide the requested records in electronic format and its refusal to grant a fee waiver. Following several court hearings, the defendants are in the process of producing the requested records. PLN is represented by the Partnership for Civil Justice. See: PLN v. District of Columbia, Superior Court of the District of Columbia, Case No. 0004598-08.
Los Angeles Public Records Suit: On March 3, 2009, PLN filed a lawsuit against the County of Los Angeles, the Sheriff’s Department and the Office of County Counsel, after submitting records requests for documents related to litigation involving the Los Angeles County jail. The county failed to produce the requested records and did not respond to a follow-up letter. PLN is represented by the law firm of Rosen, Bien and Galvan LLP, and Najeeb N. Khoury and Padraic Glaspy of Howarth & Smith. See: PLN v. Los Angeles County, Superior Court of Los Angeles County (CA), Case No. BS119336.
Pennsylvania DOC Records Case: In May 2009, PLN filed a petition in the Commonwealth Court of Pennsylvania under the state’s Right-to-Know law, after the Office of Open Records upheld the denial of a fee waiver in PLN’s public records request submitted to the Pennsylvania Department of Corrections. The DOC had refused to waive $8,750 in copy fees, refused to provide the records in electronic format, and later denied PLN’s request with respect to certain documents. The court ruled on April 8, 2010 that the DOC had failed to substantiate the amount of copy fees and failed to justify its denial of PLN’s fee waiver request. The decision by the Office of Open Records was therefore vacated and remanded for further proceedings. PLN is represented by Mary Catherine Roper, a staff attorney with the Pennsylvania ACLU, as well as Andrew Foster, Alicia Hickok and Richard Coe. See: PLN v. Office of Open Records, Commonwealth Court of Pennsylvania, Case No. 969 CD 2009; 2010 WL 1379730.
San Francisco Public Records Suit: In August 2009, PLN sued the City and County of San Francisco after submitting records requests for documents related to litigation involving the San Francisco jail. Although a partial spreadsheet of cases was produced, the requested records were not. The suit was filed after the City Attorney’s office failed to respond to PLN’s follow-up letters. PLN is represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. City and County of San Francisco, Superior Court for the County of San Francisco, Case No. CGC 09 491641.
Connecticut FOIA Appeal: When PLN requested documents related to a settlement involving a prisoners’ death at the jail in Hartford, Connecticut, the city denied PLN’s request for a fee waiver. PLN appealed to the state’s FOIA Commission, which ruled in September 2009 that PLN was entitled to a waiver. Two months later the city appealed the Commission’s ruling to Superior Court, where it remains pending. PLN is represented by attorney Brett Dignam at Yale Law School and law students Megan Quattlebaum and Robyn Gallagher. See: Hartford Corporation Counsel v. FOI Commission, Superior Court, Judicial District of New Britain (CT), Case No. HHB CV 09 5014688.
Virginia DOC Censorship: On October 8, 2009, PLN filed suit in federal court against the Virginia Dept. of Corrections. The complaint alleges that Virginia prison officials censored PLN’s magazine and correspondence, failed to provide PLN with timely and adequate notice of such censorship, and barred prisoners from receiving gift books or subscriptions from third parties. PLN is represented by attorneys Jeffrey E. Fogel and Steven D. Rosenfield, and HRDC counsel Dan Manville. See: PLN v. Johnson, U.S.D.C. (W.D. VA), Case No. 3:09-cv-00068.
TDCJ Book Censorship: On November 4, 2009, PLN filed suit against the Texas Dept. of Criminal Justice (TDCJ) after the TDCJ censored two PLN books ordered by Texas prisoners. The TDCJ censored Women Behind Bars by former PLN board member Silja Talvi, and Perpetual Prisoner Machine: How America Profits from Crime by Joel Dyer. PLN contends that the censorship was improper and the TDCJ did not provide notice when the books were censored. On December 17, 2009, the district court denied the defendants’ motion to dismiss and deferred judgment on the issue of qualified immunity in PLN v. Livingston, 2009 WL 5170229. PLN is represented by attorney Scott Medlock with the Texas Civil Rights Project and HRDC counsel Dan Manville. See: PLN v. Livingston, U.S.D.C. (S.D. Tex.), Case No. 2:09-cv-00296.
Louisiana Jail Censorship: On December 3, 2009, PLN sued the St. Bernard Parish Prison in Louisiana, which had a policy and practice of prohibiting magazines, newspapers and books from outside publishers or distributors. No notice was provided to PLN when its magazine and book orders were censored by the jail. PLN is represented by New Orleans attorneys Mary Howell and Elizabeth Cumming, and HRDC counsel Dan Manville. See: PLN and HRDC v. Stephens, U.S.D.C. (E.D. LA), Case No. 2:09-cv-07515-MVL-DEK.
CDCR Public Records Case: PLN filed suit in state court against the California Dept. of Corrections and Rehabilitation (CDCR) in December 2007, after the CDCR failed to respond to PLN’s public records request seeking payouts in litigation involving the California prison system. In December 2009 the court held the CDCR must produce the requested records, and they are in the process of doing so. PLN is represented by the law firm of Rosen, Bien and Galvan LLP. See: PLN v. Tilton, Superior Court for Sacramento County, Case No. 34-2007-00883573-CU-PT-GDS.
Conclusion
In addition to the above cases, PLN has joined amicus briefs in several U.S. Supreme Court cases on behalf of prisoner plaintiffs, including Goodman v. Georgia, 546 U.S. 151 (2006), which involved the right of disabled prisoners to sue for monetary damages; Woodford v. Ngo, 548 U.S. 81 (2006), involving exhaustion of administrative remedies under the Prison Litigation Reform Act; and Jones v. Bock, 549 U.S. 199 (2007), which likewise involved exhaustion under the PLRA.
PLN also joined amicus briefs in several federal district court and appellate cases, including an unsuccessful certiorari petition in Hammer v. Ashcroft, 570 F.3d 798 (7th Cir. 2009), which challenged rules prohibiting in-person media interviews with federal death row prisoners, and a successful petition for en banc review in Nelson v. CMS, 583 F.3d 522 (8th Cir. 2009), which challenged the practice of shackling pregnant prisoners in labor.
PLN has achieved impressive results over the years through our litigation, and we have extensively relied on attorneys willing to represent us on a contingency or pro bono basis. Our courtroom successes have been due to the excellent lawyers who represent PLN and PLN’s staff who are able to marshal the facts necessary for our attorneys to prove and win our claims.
The cases we file directly impact the First Amendment rights of both PLN and our subscribers, as well as other publishers and prisoners. In most of our censorship cases we attack broader censorship practices that have an impact beyond the immediate parties to the suit. We are committed to the principle that any prisoner in the U.S. who wants to receive PLN or the books we distribute should be able to do so, and PLN is one of the few publishers that is consistently willing to assert important free speech and public records rights through litigation. Unfortunately, we have more cases in the works.
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