4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 1 of 26 - Page ID # 1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HUMAN RIGHTS DEFENSE CENTER,

Case No. ___-cv-_____

Plaintiff,
COMPLAINT
AND
DEMAND FOR JURY TRIAL

v.
SCOTT FRAKES, in his official capacity
as Director of the Nebraska
Department of Correctional Services
and in his individual capacity

COMES NOW, Plaintiff Human Rights Defense Center, and for its Complaint
against Defendant Scott Frakes, individually and in his official capacity as Director
of the Nebraska Department of Corrections Services, states:
INTRODUCTION
1.

This is a civil rights action under 42 U.S.C. § 1983 seeking, among

other relief, to enjoin Director Frakes from enforcing the Nebraska Department of
Correctional Services’ (“NDCS”) unconstitutional policy of prohibiting certain
published material from entering its correctional facilities. That policy prohibits
inmates from ordering books unless (1) the book is obtained from Edward R.
Hamilton Bookseller Company (“Hamilton”), a wholesaler of books and other
publications; (2) is a correspondence/college course book not available through
Hamilton; or (3) is a “[r]eligious book[]” not available through Hamilton. This policy
violates HRDC’s First and Fourteenth Amendment rights to send publications to
prisoners.
PARTIES
2.

HRDC is a 501(c)(3) non-profit entity organized under the laws of

Washington with its principal place of business in Lake Worth, Florida. HRDC
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advocates on behalf of the human rights of people held in U.S. detention facilities,
including state prisons. In addition to its monthly journals Prison Legal News and
Criminal Legal News, HRDC publishes several books and distributes dozens of
others. They include books on the criminal justice system, legal reference books,
and self-help books of interest to prisoners.
3.

Defendant Scott Frakes is the Director of Correctional Services and,

pursuant to section 83-173 of the Nebraska Revised Statutes, shall supervise and
be responsible for the administration of the NDCS; adopt and promulgate rules and
regulations for the management, correctional treatment, and rehabilitation of NDCS
inmates and for the administration of NDCS facilities; and shall exercise all powers
and perform all duties necessary and proper in carrying out those responsibilities.
Defendant Frakes has held this position since 2015.
JURISDICTION AND VENUE
4.

This Court is possessed of jurisdiction over this action under 28 U.S.C.

§§ 1331 and 1343, because it arises under 42 U.S.C. § 1983, a federal statute that
provides redress for the deprivation under color of State law of federal rights secured
by the Constitution of the United States. This Court has jurisdiction to afford
damages, equitable relief, and declaratory relief under 28 U.S.C. §§ 1343, 2201, and
2202.
5.

Venue is proper in this Court under 28 U.S.C. § 1391 because Director

Frakes resides in Nebraska and because the challenged conduct has occurred
entirely within Nebraska.

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FACTUAL ALLEGATIONS
6.

The NDCS has in effect a policy, Policy 113.23, applicable to all NDCS

facilities and expressly approved by Defendant Frakes, which provides in relevant
part:
Inmates may only order books and receive books from Edward
R. Hamilton. Any book orders received from other than Edward R.
Hamilton will be returned to sender. Correspondence/college course
books not available from Edward R. Hamilton shall be available as
outlined in Policy 106.01, Education Services. Religious books not
available from Edward R. Hamilton is [sic] identified in I.B. above.
This excerpt is referred to hereinafter as the “Approved Vendor Policy”, and may be
found in paragraph I.K.2 of Policy 113.23, attached hereto as Exhibit A.
7.

The Approved Vendor Policy has been in effect since May 17, 2021.

8.

On information and belief, there is no “Policy 106.01, Education

Services,” published or otherwise available to the public.
9.

Paragraph I.B of Policy 113.23 provides:

Religious items must be approved by the facility Religious Coordinator.
Religious Orders can be ordered in any month and are not included in
the four order limit. The Religious Coordinator will approve the order
and forward to the canteen for processing.
10.

Paragraph I.K of Policy 113.23 provides that Miscellaneous Orders,

which includes orders for books, “can be submitted in any month and are not
included in the four order limit of canteen special orders.” No other provision of
Policy 113.23 or any other NDCS policy limits the amount of book orders an inmate
may place.
11.

Hamilton is a Connecticut-based wholesaler of books, periodicals, and

newspapers that distributes its inventory online through HamiltonBooks.com LLC
at <https://www.hamiltonbooks.com>, or through direct mail order.
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12.

Hamilton sells—either in whole or in part—overstocked or damaged

books from book publishers, some of which “have been handled many times.”
13.

Hamilton does not sell any of the books published by HRDC: The PLRA

Handbook: Law and Practice Under the Prison Litigation Reform Act; Disciplinary SelfHelp Litigation Manual - 2nd Edition (2015); Prison Education Guide (2016); and The
Habeas Citebook: Ineffective Assistance of Counsel - 2nd Edition (2016) and 1st
Edition (2010).
14.

Hamilton does not sell the vast majority of books distributed by HRDC.

Of the approximately 45 publications sold by HRDC, 5 are available through
Hamilton, 3 of which are dictionaries.
15.

Paragraph I.F of NDCS Policy 113.23 states that Special Canteen

Orders may only be placed with authorized vendors. Among the criteria listed for
selecting such vendors is whether it has an acceptable report from the Better
Business Bureau (“BBB”).
16.

Edward R. Hamilton is not BBB accredited and has a BBB rating of F.

17.

On at least six occasions, HRDC has been prevented from sending

books to NDCS prisoners under the Approved Vendor Policy, specifically:
a.

On or about July 13, 2021, NDCS inmate Joseph Boeggeman,

Inmate No. 210960, was denied an exception to the Approved Vendor Policy
so that he could order books from HRDC not available through Hamilton.
b.

On or about September 28, 2021, Nebraska State Penitentiary

inmate Luke LeFever, Inmate No. 89914, was provided a Notice of Held Mail
stating that a title sent to him by HRDC—Prisoners’ Self-Help Litigation

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Manual—was held for the reason that it was sent from an “unauthorized
vendor.”
c.

On or about September 28, 2021, Nebraska State Penitentiary

inmate David Ditter, Inmate No. 32547, was provided a Notice of Held Mail
stating that a book sent to him by HRDC—Protecting Your Health and Safety:
A Litigation Guide for Inmates—was held and would not be forwarded to Ditter.
d.

On or about September 29, 2021, Boeggeman received a

publication sent to him by HRDC—Protecting Your Health and Safety: A
Litigation Guide for Inmates. Boeggeman informed a Deputy Warden Freese of
his receipt of the publication, to which Deputy Warden Freese responded that
“[t]here are no exceptions with the book vendor,” and that Boeggeman “will
need to send that book out that wrongfully got through the mail to you.”
e.

On or about October 2, 2021, an HRDC publication mailed to

Nebraska State Penitentiary inmate Bob Hunt, Inmate No. 35947, was
returned to sender as “REFUSED.” The publication was Protecting Your Health
and Safety: A Litigation Guide for Inmates.
f.

On or about October 12, 2021, a publication mailed by HRDC to

Nebraska State Penitentiary inmate James Brady, Inmate No. 211616, was
returned to sender as “REFUSED.” The publication was Protecting Your Health
and Safety: A Litigation Guide for Inmates.
18.

The books held or returned to sender described in subparagraphs 10.c–

f above were all mailings sent by HRDC on September 23, 2021.
19.

In none of the instances described in subparagraphs 10.b–f above was

HRDC provided notice, other than receipt of a returned package, that the
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publications it sent to inmates were held under the Approved Vendor Policy, and in
none of those instances was HRDC provided an opportunity to challenge the hold.
20.

The application of the Approved Vendor Policy to HRDC has damaged

it through lost sales, the loss of the opportunity to HRDC to fulfill its mission and
to engage in speech with inmates, and through other harm in an amount to be
proved at trial.
21.

The application of the Approved Vendor Policy to HRDC has caused,

and continues to cause, irreparable harm to HRDC by violating its rights under the
United States Constitution.
22.

On or about September 2, 2021, HRDC directed a letter to the NDCS

requesting that NDCS rescind the Approved Vendor Policy. A copy of that letter is
attached hereto as Exhibit B.
23.

HRDC received a response from NDCS dated September 20, 2021 in

which the NDCS asserted a single justification for the Approved Vendor Policy:
The process is intended to prevent the introduction of illicit drugs into
the facilities. Specifically, Liquid K2, a type of synthetic marijuana, has
been introduced into facilities through various methods, including
sprayed on pages of books. Liquid K2 is odorless and colorless and
difficult to detect. Appropriate book order vetting is necessary to protect
the safety and security of the facilities.
A copy of that response is attached hereto as Exhibit C.
24.

On November 23, 2021, a journalism report—‘It’s Vital’: Former inmate

advocates for access to library in prison— was published by KETV Omaha, reporting
on the lack of libraries and of access to libraries among NDCS facilities (the “KETV
Report”). The KETV Report featured recorded statements by Defendant Frakes and
is available at <https://www.ketv.com/article/its-vital-former-inmate-advocatesfor-access-to-library-in-prison/38337549>.
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25.

Among the items reported in the KETV Report is that only five of

NDCS’s ten correctional facilities contain a formal library.
26.

Among the recorded statements by Defendant Frakes played in the

KETV Report are the following statements by him:
a.

In reference to some of the NDCS facilities that contain a formal

library being available to inmates only four days a week, Defendant Frakes
stated: “That has really, really limited access to the library in those locations.”
b.

Defendant Frakes further stated with respect to facilities limiting

access to the library when they go on lockdown due to the State’s staffing
crisis: “Basically, everybody’s probably getting about an hour of access a
week, which is just enough time to get in, bring a book back.”
c.

In reference to inmate access to libraries, Defendant Frakes

stated: “I think that’s something that we can continue to get better at. It’s not
that it won’t be a focus but it isn’t right at this very moment.”
27.

Director Frakes was formerly employed by the Washington State

Department of Corrections, and in that role was a defendant in at least one lawsuit
challenging the constitutionality of similar restrictions in which the plaintiff
prevailed.
28.

Director Frakes knew, or should have known, that the Approved

Vendor Policy violates the U.S. Constitution.
COUNT I—FIRST AMENDMENT VIOLATION
29.

The Approved Vendor Policy unconstitutionally restricts HRDC’s rights

to engage in speech under the First Amendment to the U.S. Constitution.

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30.

Defendant Frakes’s approval and ongoing enforcement of the Approved

Vendor Policy as the Director of Correctional Services has proximately caused HRDC
damages and irreparable harm.
31.

Defendant Frakes’s approval and ongoing enforcement of the Approved

Vendor Policy is outrageous, intentional, and involves reckless or callous
indifference to the federally protected rights of persons such as HRDC.
COUNT II—PROCEDURAL DUE PROCESS VIOLATION
32.

The Approved Vendor Policy violates HRDC’s right to adequate notice

and an opportunity to respond to the rejection of publications it delivers to NDCS
inmates and thereby violates HRDC’s right to procedural due process under the
Fourteenth Amendment to the United Stated Constitution.
33.

NDCS provides no process regarding its decisions to reject publications

because it determines they are not sold by an approved vendor, because it
determines they do not fall within the religious-publication or correspondencecourse-or-educational-material exceptions to the Approved Vendor Policy, or
otherwise.
34.

Defendant Frakes’s approval and ongoing enforcement of the Approved

Vendor Policy as the Director of Correctional Services has proximately caused HRDC
damages and irreparable harm.
35.

Defendant Frakes’s approval and ongoing enforcement of the Approved

Vendor Policy is outrageous, intentional, and involves reckless or callous
indifference to the federally protected rights of persons such as HRDC.
WHEREFORE, HRDC prays for judgment in its favor and against Defendant
Frakes, for the following:
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a.

A declaration that the Approved Vendor Policy violates the First
Amendment, and the Due Process Clause of the Fourteenth
Amendment, to the United States Constitution.

b.

A preliminary and permanent injunction against Defendant Frakes in
his official capacity enjoining and restraining Defendant (including
successors to his office), and Defendant’s (and his official successors’)
agents, servants, deputies, designees, and representatives, and other
persons under Defendant’s (and his official successors’) direction and
control including NDCS employees and contractors, and any person in
active concert or participation with the Defendant (and successors to
his office), from enforcing the Approved Vendor Policy, and awarding
such other equitable relief as may be appropriate.

c.

An award to HRDC of compensatory damages, punitive damages,
and/or nominal damages in an amount to be proven at trial against
Defendant Frakes in his individual capacity.

d.

An award to HRDC of full costs, including reasonable attorney’s fees.

e.

Any other relief this Court may deem just and appropriate.

[Signature on next page.]

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HUMAN RIGHTS DEFENSE CENTER,
Plaintiff
By:

s/Nathan D. Clark
Richard P. Jeffries, #20089
Nathan D. Clark, #25857
CLINE WILLIAMS WRIGHT
JOHNSON & OLDFATHER, L.L.P.
1900 U.S. Bank Building
233 South 13th Street
Lincoln, Nebraska 68508
(402) 474-6900
rickjeffries@clinewilliams.com
nclark@clinewilliams.com
and
Dan Marshall, pro hac vice pending
HUMAN RIGHTS DEFENSE CENTER
P.O. Box 1151
Lake Worth, Florida 33460
(561) 360-2523
dmarshall@humanrightsdefensecenter.org

4864-8583-0919, v. 5

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Exhibit A

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 12 of 26 - Page ID # 12
POLICY

INMATE ORDERS

NEBR/\SK,-\
Good Life. Great Mission.
DEPT OF CORRECTIONAL SERVICES

EFFECTIVE:
REVISED:
REVISED:
REVISED:
REVISED:
REVISED:
REVISED:

REVISION DATE

NUMBER

PAGE

November 30, 2021

113.23

1 of 8

STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

December 31, 2015
October 31, 2016
October 31, 2017
October 31, 2018
December 31, 2019
December 31, 2020
November 30, 2021

SUMMARY of REVISION/REVIEW
Policy Directive 021-007 and 021-008 incorporated. PROCEDURE - I.B. - Language updated. I.D.
- Language updated. I.K.2. - Language updated.

APPROVED:

s, Director
.......L,=uartment of Correctional Services

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POLICY

INMATE ORDERS
REVISION DATE

NUMBER

PAGE

November 30, 2021

113.23

2 of 8

STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

PURPOSE
To provide a uniform Nebraska Department of Correctional Services (NDCS) policy for inmates placing
Special Orders, Hobby Orders, Director Orders and Miscellaneous Orders.
GENERAL
This procedure is applicable to all NDCS facilities. All information on inmates’ accounts is confidential and
can only be discussed with the inmate. Information on inmates’ accounts that is provided to external sources
must be by court order or to authorized law enforcement through Central Office Accounting.
PROCEDURE
I.

SPECIAL ORDERS
A.

Canteen Special Orders
Inmates shall be allowed a maximum of four canteen special orders per calendar year,
including orders for recreational items such as sporting goods, music equipment, and
related supplies. Some facilities may not allow all of these items to be ordered. An inmate
may place one order in each of the following periods: January/February, March/April,
July/August, and September/October. No special orders for these items may be placed in
May, June, November, and December. Inmates at the Work Ethic Camp (WEC) may have
limitations on what items may be ordered due to the nature of the program.
Orders for the following items are not part of the four canteen special orders but are only
allowed in the months noted above:
1.

Repair orders

2.

Watch batteries

3.

Typewriters and typewriter accessories

The date for determining the allowable orders in a calendar year shall be based on the
posting date on the inmate's institutional account. Canteen Special Orders are due in
NDCS Inmate Accounting five work days before the end of each two month time period to
be assured they will be processed in the allowable period. Facilities should implement
internal deadlines in order to meet this time frame.
Insufficient fund orders may be resubmitted once within 30 days and the canteen fee will
be waived. Insufficient fund orders count towards the allowable orders; however, the one
allowed resubmission does not count. It is the inmate’s responsibility to ensure that they
have sufficient funds on their institutional account for special orders. Orders submitted in
April and the inmate has insufficient funds may not be resubmitted in May and the canteen
fee does not carry forward to July. Orders submitted in October and the inmate has
insufficient funds may not be resubmitted in November and the canteen fee does not carry
forward to January.
Orders for flowers, items stocked in the canteen, items available through Direct Orders, or
Gift Orders are not permitted.

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POLICY

INMATE ORDERS
REVISION DATE

NUMBER

PAGE

November 30, 2021

113.23

3 of 8

STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

B.

Religious Orders
Religious items must be approved by the facility Religious Coordinator. Religious Orders
can be ordered in any month and are not included in the four order limit. The Religious
Coordinator will approve the order and forward to the canteen for processing.

C.

Hobby Orders
Hobby orders can only be placed with a vendor that has a catalog. A maximum of six hobby
orders per calendar year will be allowed. Hobby orders will not be allowed in February and
August.
Hobby orders are due in NDCS Inmate Accounting five work days before the end of each
month to be assured they will be processed in that month. Hobby orders received within
the last five work days of January and July will be returned to the facility unprocessed.
Insufficient fund orders may be resubmitted once within 30 days and the fee will be waived.

D.

Processing of Orders
Canteen, religious, and hobby orders will be processed on an Inmate Vendor Order Form
(Attachment A). A catalog must be available for purchasing reference and items ordered
must be in accordance with the Policy concerning property. The catalog generally should
not be more than six months old.
A per-order handling charge of $1 will be assessed on all Canteen Special Orders. A perorder handling charge of five percent of the total merchandise, with a $1 minimum and a
maximum of $5, will be assessed on all religious and hobby orders. No handling charge is
assessed on Miscellaneous Orders. A stamped, addressed envelope must be attached to
the order form, but institutional checks do not need to be attached. The handling charge
will be collected or assessed on the suspense account even if non-sufficient funds are
available for the vendor order. Refunds will not be made on the handling charge; however,
if an order cannot be filled by the vendor, the inmate has 30 days to submit the same or
similar purchase without an additional handling charge being assessed.
Orders may not be cancelled once they have left the institution. Orders to be cancelled due
to an extraordinary circumstance will require notification to NDCS Inmate Accounting from
the facility Business Office and require the approval of the Controller/designee.
An order should be grouped as follows: Inmate Vendor Order Form and an addressed
stamped envelope. Orders sequenced in a different order may have delays in processing.
This packet should preferably be stapled in the left corner. An addressed stamped
envelope is not needed for Canteen Special Orders.

E.

Item Warranty
All orders are at the inmate’s own risk. Special orders are subject to the warranty as
provided by the vendor or manufacturer. Inmates sending items out for warranty work or
repair must work through the canteen, hobby, or other area as applicable. Inmates are
responsible for payment of all associated costs.

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POLICY

INMATE ORDERS
REVISION DATE

NUMBER

PAGE

November 30, 2021

113.23

4 of 8

STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

F.

Authorized Vendors for Canteen Special Orders
Canteen Special orders may only be placed with the designated vendors. Exceptions due
to unique needs require Warden approval and will be reviewed by the Controller. Criteria
for selecting vendors may include:

G.

1.

Vendor must have been in business for at least five years

2.

History of doing individual sales in an institutional setting

3.

References will be obtained/provided documenting experience

4.

Must have an acceptable return/refund policy

5.

Must have a customer service representative to handle issues

6.

Acceptable Better Business Bureau Report

7.

Acceptance of State purchase card for payment

Direct Orders
1.

Orders Allowed
Inmates shall not have a limit as to the number of Direct Orders they may process
other than restrictions on property limits. Items available on Direct Order may not
be ordered via a Special Order. Inmates at WEC may have limitations on what
items may be ordered due to the nature of the program.

2.

Processing of Orders
Direct Orders shall be submitted to the facility canteen team members with the
following information completed on the form, reference Inmate Direct Order form:
(Attachment B)
a.

Inmate Number

b.

Inmate Name Printed – must be the inmates committed name

c.

Inmate Signature

d.

Facility

e.

Location

f.

Item Number – obtained from the listing or catalog

g.

Description of the item being ordered

h.

Size

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STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
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i.

Quantity

j.

Price

k.

Total

l.

Sub-Total

Direct Order forms turned in to the canteen by Wednesday will be ordered the
following Tuesday. The pink copy will be returned to the inmate when the order
has been placed.
Orders will be debited from the inmates account via a canteen sale prior to the
order being placed. Orders may not be cancelled once the sale has been
processed in the Corrections Information and Tracking system. Should an inmate
have insufficient funds for all items on a Direct Order a partial order will be
processed based on the sequence the items are listed. Items not ordered will be
lined through by canteen team members, initialed, and noted as insufficient funds.
Two insufficient funds for Direct Orders within a six month time period will place
the inmate on a 60 day suspension of placing additional Direct Orders.
Goods will be received in the canteen and verified to the inmate’s Direct Order.
Goods will be issued in accordance with facility procedures. Inmates will be
required to initial by each line when that item is received and sign the document
when the Direct Order is complete. Inmates will sign the transaction tape and
receive the yellow copy when the order is complete.
Generally, inmates will not be allowed to make exchanges for ordering the wrong
size. Exceptions will be made when new clothing or shoe items are added to the
Direct Order process until notice can be provided to inmates regarding the vendors
sizing.
H.

Special/Direct Order Process
1.

The inmate initiates request to order (Attachment A) or (Attachment B).

2.

The order is submitted to canteen following facility guidelines.

3.

Institutional team members will check the Inmate Property List to see if inmate is
eligible to possess item.

4.

If an inmate is not eligible to possess the item(s) – the order is returned to inmate
as denied. Inmate will need to work with Institutional team members to become
eligible to possess the item before the order is resubmitted.

5.

If an inmate is eligible to possess the item(s), the order is processed.
a.

Inmate Vendor Order Form is approved. Religious Special Orders and
Hobby orders are sent to Accounting

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STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
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b.

I.

Direct Order / Canteen Special Orders
1)

Funds are removed from the Inmate’s Account

2)

Original Order Form is kept in Canteen

6.

The ordered items are received at facility.

7.

The order is inspected by Inmate.
a.

If approved, the item is marked by Institutional team members and given
to inmate

b.

If disapproved for size or defect only, it is returned to vendor via call tag or
inmate expense

8.

If item was ordered on exchange basis (see 3. above) – exchange must be made.

9.

The item is given to inmate.

10.

The inmate signs to register property and receives a copy.
a.

If Inmate Vendor Order Form – inmate signs “Registration of Personal
Property” and vendor order form (Attachment A)

b.

If Direct Order – inmate signs ‘Direct Order Form’ (Attachment B)

11.

The property form is sent to Property Office.

12.

The property is added into Nebraska Inmate Case Management System.

Canteen Purchases
Canteen sales are final. Issues with items must be identified at the time of purchase.

J.

Debit Calling
Debit calling time will be available to inmates for purchase in the canteen. All sales will be
made in $2.50 increments and do not impact the inmate’s spending limit. Institutions
without a canteen will work with another institution to make debit-calling purchases
available to their inmates.
Debit calling purchases will be sent daily via electronic file to the NDCS inmate calling
telephone provider. Time purchased one day will usually be available at 8:00 AM the next
day. The balance available for making calls will be announced in the calling instructions.
NDCS team members does not have access to the inmate balances for debit calling.
Refunds will only be processed following an inmate’s parole or discharge from NDCS. The
balance will be returned to NDCS in the month following an inmate’s release and will be
included in the inmate’s final check.

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REVISION DATE

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STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

Canteen team members can correct sale errors only if identified and corrected the same
day as the sale.
K.

Miscellaneous Orders
1.

Magazines, subscriptions, books, books with CD’s, and other periodicals ordered
direct from the publisher or bookstore must be prepaid and routed through
appropriate team members as defined by the facility. Such orders can be submitted
in any month and are not included in the four order limit of canteen special orders.

2.

Inmates may only order books and receive books from Edward R. Hamilton. Any
book orders received from other than Edward R. Hamilton will be returned to
sender. Correspondence/college course books not available from Edward R.
Hamilton shall be available as outlined in Policy 106.01, Education Services.
Religious books not available from Edward R. Hamilton is identified in I.B. above.

3.

Orders may not be cancelled once they have left the institution. Orders to be
cancelled due to an extraordinary circumstance will require notification to
Accounting from the Business Office or the Warden and require the
Controller’s/designee’s approval.

4.

The Inmate Miscellaneous Order form (Attachment C) and the institutional check
must be outside the envelope for Accounting to process and prepare an Inmate
Trust Fund check. An order should be grouped as follows: Institutional Check to
Vendor, Self-Addressed Stamped Envelope, Inmate Miscellaneous Order Form all
facing forward. Orders sequenced in a different order may have delays in
processing. This packet should preferably be stapled in the left corner.

5.

Miscellaneous Orders other than newspapers can only be placed through a vendor
that has a published catalog.

6.

Orders for mailing lists (such as pen-pals) and memberships are not allowed.
Orders for pornographic materials are not allowed.

7.

Gift orders for magazines, subscriptions, books, books with CD’s or other
periodicals are not allowed.

REFERENCE
I.

STATUTORY REFERENCE – None noted

II.

NDCS POLICIES
A.

III.

Policy 106.01, Education Services

ATTACHMENTS
A.

Inmate Vendor Order Form – DCS-A-cnt-001

B.

Inmate Direct Order – DCS-A-cnt-005

7

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 19 of 26 - Page ID # 19
POLICY

INMATE ORDERS
REVISION DATE

NUMBER

PAGE

November 30, 2021

113.23

8 of 8

STATEMENT OF AVAILABILITY

*This Policy is to be made available in law libraries or
other inmate resource centers.

C.
IV.

Inmate Miscellaneous Order – DCS-A-inm-001

AMERICAN CORRECTIONAL ASSOCIATION (ACA) – None noted

8

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 20 of 26 - Page ID # 20

Exhibit B

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 21 of 26 - Page ID # 21

Human Rights Defense Center
DEDICATED TO PROTECTING HUMAN RIGHTS

September 2, 2021

Scott Frakes, Director
Nebraska Dept. of Correctional Services
801 W. Prospector Place
Building 1
Lincoln, NE 68522
Sent via U.S. Certified Mail, Return Receipt Requested: #70160910000180651106
Re: Ban on book publishers
Dear Director Frakes,
I am the Executive Director of the Human Rights Defense Center (HRDC), the non-profit
organization that publishes and distributes dozens of different softcover books about the criminal
justice system, legal reference books, and self-help books of interest to prisoners. It has come to
HRDC’s attention that the Nebraska Department of Correctional Services has enacted a policy
whereby prisoners may only order books from a single publisher, Edward R. Hamilton. Due to
this policy, prisoners in Nebraska are being denied requests to order books from HRDC. With this
letter I have enclosed an example of a prisoner request that was denied.
Prisoners have a right to reading materials, and HRDC has a First Amendment right to
communicate with prisoners, and to send publications to prisoners who request them. Thornburgh
v. Abbott, 490 U.S. 401, 408 (1989); Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir.
2005). Any restriction on sources of books sent to prisoners must be done pursuant to a policy or
practice that is “reasonably related to legitimate penological interests.” Thornburgh, 490 U.S. at
413 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). The decision to limit prisoners’ access to
a single publisher does not satisfy this standard and should be reversed.
Moreover, there are serious equal protection concerns when governmental agencies treat
similar publishers differently. There is no penological interest in allowing books to come from
Edward R. Hamilton but not HRDC.
As there is no penological interest to justify the policy, I ask that you rescind the limitation
on publishers who can send books to prisons under your authority, and allow prisoners in Nebraska
to order books from HRDC. If you need any additional information please do not hesitate to ask.
Thank you in advance for your consideration, I look forward to your prompt response.

P.O. Box 1151, Lake Worth Beach, FL 33460
Phone: 561.360.2523 Fax: 561.828.8166
Email: pwright@prisonlegalnews.org

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 22 of 26 - Page ID # 22
Director Scott Frakes
Nebraska Dept. of Correctional Services

September 2, 2021
Page 2

Very Truly Yours,

Paul Wright
Executive Director
Human Rights Defense Center
Encl.
cc: Daniel Marshall, HRDC General Counsel

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 23 of 26 - Page ID # 23

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 24 of 26 - Page ID # 24

Exhibit C

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 25 of 26 - Page ID # 25

NEBRASKA
Good

Life. Great Mission.

DEPT OF CORRECTIONAL

SERVICES
Pete Ricketts, Governor

September 20, 2021
Mr. Paul Wright
Executive Director
Human Rights Defense Center
P.O. Box 1151
Lake Worth Beach, FL 33460
Via email:

pwright@prisonlegalnews.org

Dear Mr. Wright:
This letter
Department

is in response to your correspondence regarding the Nebraska
of Correctional Services (NDCS) book order process. This letter has

been provided to Director Frakes and serves as the response to all similar letters
received by NDCS

officials regarding this issue.

In your letter, you contend NDCS has enacted a policy whereby prisoners may only
order books from a single publisher, Edward R. Hamilton. However, while this
publisher is the primary book vendor, the book order process provides prisoners the
opportunity

to

request

religious

and

educational

book

orders

from

additional

vendors.
Moreover, the book order process is reasonably related to a legitimate penological
interest under Turner v. Safley, 482 U.S. 78 (1987). The process is intended to
prevent the introduction of illicit drugs into the facilities. Specifically, Liquid K2, a
type of synthetic marijuana, has been introduced into facilities through various
methods, including sprayed on pages of books. Liquid K2 is odorless and colorless

Scott R. Frakes, Director
Dept of Correctional Services
P.O. Box 94661

Lincoln, NE 68509-4661

Phone: 402-471-2654

Fax: 402-479-5623

corrections.nebraska.gov

ee

4:22-cv-03028 Doc # 1 Filed: 02/25/22 Page 26 of 26 - Page ID # 26
Paul Wright
September 20, 2021
Page 2

and difficult to detect. Appropriate book order vetting is necessary to protect the
safety and security of the facilities.
In sum, the book order process is not limited to one vendor and is reasonably related

to a legitimate penological interest. NDCS intends to continue the process.
Best Regards,

R
Gilbride
Agency Legal Counsel