Exchange of Court Opinions between Attorney and Prisoner Merits First Amendment Injunction
Exchange of Court Opinions between Attorney and Prisoner Merits First Amendment Injunction
A Nevada federal district court granted a preliminary injunction to a prisoner and his attorney friend to enforce their First Amendment right to exchange correspondence.
Attorney Donald York Evans and Nevada prisoner John Witherow, a paralegal, have enjoyed “a long relationship of correspondence regarding civil issues pertaining to Witherow’s own case and to greater prisoner civil rights issues in general.”
Witherow engaged in compensated paralegal work for Evans and other attorneys in the past, but claimed he has not done so since 1997. After Evans wrote him in 1999 to offer to employ him for some paralegal work, Witherow applied for permission with his prison warden to operate a business under Nevada law. The request was denied.
In April 2004, prison officials prevented a deposit of $100 into Witherow’s account that Evans had sent him. Prison officials maintained the money was compensation for business activities. In May, prison officials began censoring various public records documents Evans sent Witherow.
A letter dated November 23, 2004, from prison official Lenard Vare informed Witherow that he was prohibiting future correspondence between Witherow and Evans “involving legal work and cases, other than [Witherow’s] own personal legal matters.” The basis for the decision was substantially to prevent the conduct of a business enterprise.
The district court entered an order on November 18, 2005, on Evans and Witherow’s request for preliminary injunction. The court found irreparable injury to their First Amendment rights. It also found they demonstrated their probable success on the merits.
The court then assessed whether the restriction imposed is more restrictive than necessary to further the asserted interests in other prisoner’ confidentiality and he prisons safety concerns. The ban on correspondence was found to be too restrictive.
The court found that correspondence that contains legal orders pertaining to persons other than Witherow does not mean that those orders are irrelevant to Witherow’s claims, for “thorough analysis of legal orders and opinions on relevant issues is the cornerstone of effective litigation.” Prison Officials, the court wrote, are not “empowered to decide their relevance.”
Personal correspondence between Witherow and Evans was distinguished from privileged legal mail correspondence, which must be labeled as such by Evans. The court held that “A policy whereby party names other than Witherow’s or persons directly involved in Witherow’s or persons directly involved in Witherow’s litigation, except in the case of published opinions or reference thereto, must be redacted in legal mail from Evans to Witherow, would properly balance the security interests of the prison with [out] the potential for chilling Witherow’s right of access to the courts and representation by counsel.”
The court found the evidence to prove a business relationship between Evans and Witherow lacking. It issued a preliminary injunction.
See: Evans v. Vare, 402 F. Supp. 2d 1188 (D. Nevada 2005)
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Related legal case
Evans v. Vare
| Year | 2005 |
|---|---|
| Cite | 402 F. Supp. 2d 1188 (D. Nevada 2005) |
| Level | District Court |
| Conclusion | Bench Verdict |
| Injunction Status | Granted |