by John E. Dannenberg

On December 19, 2006, the California Department of Corrections and Rehabilitation (CDCR) settled with Prison Legal News (PLN) over PLN's complaints of CDCR's restrictive publications-approval policies for California state prisoners. On April 12, 2007, PLN filed the complaint in federal district court in Oakland giving the court jurisdiction to enforce the settlement. PLN had complained that CDCR's policies requiring publishers to use only approved CDCR address labels, requiring publishers to obtain "approved vendor" status, banning receipt of hardcover books, imposing a 2 lb. weight restriction on book shipments and counting legal publications in the limit of "books and magazines" a prisoner may possess violated PLN's and the prisoners' statutory and constitutional rights. Additionally, PLN asserted that it had a due process right to be notified of the delivery rejection of any of its publications. To accomplish the agreed-upon changes, CDCR agreed to amend its Department Operations Manual (DOM). CDCR also agreed, without admitting any wrongdoing, to compensate PLN $65,100 in damages and subscription fees for five-year PLN subscriptions to every law library and satellite law library in CDCR (approximately 157), and to pay PLN's counsel reasonable attorney fees and costs.

CDCR's 34 prisons, and numerous smaller facilities are bound by a common rulebook, the DOM. But the rules are not enforced uniformly because of disparate security needs among supermaxes and camps. As a result, some facilities instituted more restrictive local policies sua sponte, as listed above. Often, PLN was rejected as not conforming with these underground restrictions. Through counsel, PLN lodged its complaints without filing suit, asking for a negotiated Memorandum of Understanding (MOU) to resolve PLN's concerns. To its great credit, CDCR acceded to this negotiation process without incurring the expense or pressure of court oversight.

The agreement to negotiate was signed on January 4, 2005, with discussions to be completed by March 31, 2006. The parties agreed to consider 11 points: (a) approved vendor labels; (b) approved vendor status; (c) banning publications in Reception Center units; (d) notice of non-delivery; (e) banning hardcover publications; (f) return of non-delivered mail; (g) banning donated/gift subscriptions; (h) 2 lb. weight limit on book orders; (i) receipt of bulk mail; (j) damages, if any and (k) attorney fees/costs. Additionally, the parties agreed to court supervision, if needed after negotiations, to resolve or enforce the resultant MOU. Because PLN is a publisher and not a prisoner, none of the provisions of the Prison Litigation Reform Act apply.

The December 19, 2006 Settlement Agreement resolved as follows. (A) Vendor label requirements shall cease; DOM § 54010.8 shall be modified to reflect this. (B) Requiring publishers to obtain "approved vendor" status shall cease -- also to be reflected in DOM § 54010.8. (C) Banning hardcover publications shall cease. Prisoners shall have the option of having the covers removed in their presence or sending the item back.

DOM § 54010.20.2 shall delineate this. (D) The 2 lb. book weight restriction shall cease. (E) CDCR shall draft a new memorandum regarding book/mail processing by April 1, 2007, for PLN?s review. (F) CDCR shall permit 1 cu. ft. of legal material beyond the 6 cu. ft. property limitation for prisoners to store active case material. (G) "Legal material" has been defined to include law books, case reports and PLN.

These items shall not count in the limit of publications a prisoner may otherwise possess in his cell. (H) CDCR shall notify both the prisoner and the publisher in writing whenever a publication is disallowed. (I) CDCR shall develop a centralized list of disapproved publications prohibited as offensive, threatening, obscene or containing security concerns, and provide a copy to PLN within 30 days. (J) The parties agreed to proposed changes to DOM Article 41, §§ 54010.8 and 54010.20.2. [The bulk mailissue was resolved separately by PLN v. Lehman, 390 F.3d 692 (2005), which CDCR adopted earlier.

CDCR further agreed to compensate PLN $65,100 for alleged constitutional and statutory violations, without admitting that any occurred. The portion of the sum due for PLN subscriptions shall be paid within 90 days. If any new libraries are built, CDCR shall pay for a subscription for the balance of the five-year agreement period; any closed libraries shall result in a credit.

To put teeth into the agreement, the parties further agreed that PLN shall file a complaint in court alleging the wrongs, along with a request for dismissal due to the Settlement Agreement. This suit was filed in federal district court in Oakland on April 12, 2007. The court action shall serve to preserve jurisdiction to resolve any future disputes. As this issue goes to press the parties have not resolved the attorney fees issue. We will report that once the matter is resolved.

This settlement could well serve as a model for other states to use in reasonably settling similar complaints, thereby saving litigation costs.

PLN was ably represented by San Francisco attorneys, Sanford Rosen, Meghan Lang, Amy Whalen and Janet Tung of Rosen, Bien and Galvan, LLP. See: Prison Legal News v. Schwarzenegger, USDC ND CA, Case No. C07-02058MEJ.

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