CENSORSHIP: A Guide for TDCJ Prisoners
What’s good to all my Sisterz and Brotherz on the inside. My name is Motivation. I am a certified paralegal incarcerated in the Texas Department of Criminal Justice. I was moved to write this article because I’ve experienced TDCJ’s arbitrary and unconstitutional censorship under Board Policy - 03.91 (BP-03.91), and I’ve also witnessed the same with other men on my unit. Therefore, I’ve filed a §1983 civil complain. See Linzale Greer V. Bryan Collier, et al., 4:21-cv-03976. So, if you are a TDCJ inmate and you are experiencing improper denials because the TDCJ claims the material contains a sexually explicit image, then here’s some information to guide you on defending your rights and legally combating BP-03.91.
Know the Policy
First and foremost, find out what the policy is and how the policy defines a “sexually explicit image.” This is easy. Just go to the law library and request BP-03.91(rev.5). For those of you who may not know, BP-03.91 was revised on 25 June 2021 by the Texas Board of Criminal Justice, and the revision expanded the definition of a sexually explicit image. It essentially bans any image which depicts sexual behavior and/or is intended to sexually arouse. This means TDCJ inmates cannot possess or receive by mail any image deemed sexually explicit. In my view, this is unconstitutional because BP-03.91 is impermissible and vague, over broad, and unreasonable on its face and as applied.
You have the right to appeal
Secondly, whenever the mail room denies material, you shall be provided a sufficient notice in writing and a detailed reason for the denial. You also have the right to appeal the denial to the Director’s Review Committee (DRC) and the DRC shall render its decision within two weeks after receiving the appeal. However, if the material has been previously banned by the DRC, then the denial will be non-appealable. I don’t agree with this practice but the reality is, this is what the TDCJ does. Keep copies of all documents for your records.
Exhaust all available remedies
The Prison Litigation Reform Act (PLRA) requires prisoner’s to “Exhaust all available remedies” within TDCJ before filing a §1983 civil complaint. What this means in some cases is that you must file a step 1 and step 2 grievance before you can go to court. Remember you must exhaust only “Available remedies” and need not exhaust “unavailable remedies.” In my opinion, there are no available remedies within the TDCJ grievance procedure concerning mail room censorship because the grievance office routinely returns inmate grievances and states that the issue is not grievable. Also TDCJ grievance procedures states that inmates may not grieve matters for which other appeal mechanisms exist. Nevertheless, you should still file a step 1 and/or step 2 to be on the safe side. Now, if your step 1 is returned because the issue is not grievable then, you do not have to file a step 2 because there are not available remedies. You can now go straight to court.
Another vital tool is conducting legal research. This is where you roll up your sleeves and get down to business. This will be your prerequisite before filing suit. I didn’t have anyone to hold my hand during my legal research process or to help me file my suit. I can admit that legal research is an arduous task, but more importantly, it’s vital before filing a complaint. However, to point you in the right direction, here’s some relevant case laws that will be important to your fight against TDCJ:
- Turner V. Safley, 482 U.S. 78 (1987)
- Thornburg V. Abbott, 490 U.S. 401 (1989)
- Guajardo v. Estelle, 543 F. Supp. 1373 (S.D. Tex. 1977)
- Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978)
- Guajardo v. Estelle, 568 F Supp. 1354 (S.D. Tex. 1983)
- Guajardo v. Tex. Dept Crim. Justice, 363 F.3d 392 (S.D. Tex. 2004).
The Guajardo cases specifically applies to TDCJ’s correspondence rules. It will give you historical and present insight on the promulgation of BP-03.91, and how to legally proceed to challenge it in federal court. You should also get very familiar with the PLRA because it controls prisoners litigation and the types of relief we are entitled to. The federal statue can be found at 42 U.S.C. 1997e and 28 U.S.C. 1915A9c). If you need additional case law, just ask the law library to shepardize the above cases for you, and you will find more jewelz than you can use.
Filing a §1983 Civil Complaint
After doing all of the above, your next step is to file a §1983 Civil Complaint. You can file it in either state or federal court depending on your situation. However, because you will be complaining of First Amendment violations under the U.$. Constitution, you should file in federal court. Federal court has jurisdiction over federal law. But again, depending on your case and the facts of your case, sometimes filing in state court is the better route. You will have to research this issue to decide which route fits you.
You can get two §1983 civil complaint forms from the law library. One is for you to send to the court and the other is for your copy. Remember always keep copies of everything you send to the court. The most important part of filing a complaint is stating sufficient facts, which is “enough facts to state a claim to relief.” If you do not state enough facts, there’s a chance your complaint will be dismissed for failure to state a claim upon which relief may be granted.
If you can get an attorney to file your complaint that will be great. However, the reality is, the vast majority of prisoners are left to litigate pro se. So, do your homework and learn the law.
My Last Wordz
So, to all my Brotherz and Sisterz that are willing to legally fight the arbitrary censorship system nationally, I tip my hat to you all and wish you courage, patience, and persistence. Also, for those of you who are in the process and those that have already begun the process of litigation, WE are not doing this just for Us. WE are more on the front line for the voiceless and the ones that may not have the ability to STAND UP. So, I ask that WE ALL DO OUR BEST AND NOTHING LESS! Stay Blessed No Stress!
Sincerely, Motivation Equalz Elevation
MIM(Prisons) adds: We have a more extensive guide to fighting censorship that is applicable for all states that we send to anyone facing censorship of our correspondence or literature. We print the above as a concise summary with some specific info for Texas.
This is also part of an ongoing campaign among Texas prisoners to fight the rewritten BP-03.91 mentioned above. One of the lawsuits around this campaign is Martinez v. TBCJ, et al. #3:21-CV-00337. The judge has since denied to issue summons to each member of the Texas Board of Criminal Justice. This is being appealed. The plaintiff is requesting more support from prisoners in TDCJ in the form of affidavits and/or unsworn declarations. These affidavits/declarations will help make the argument for a statewide injunction of BP-03.91 and can be sent to MIM(Prisons) to forward to the plaintiff.
Stop Censorship of Non-Nude Publications and Photos - Repeal BP-3.91