Director's Review Committee
PO Box 99
Huntsville, TX 77342-0099
August 13, 2014
RE: Censorship of Under Lock & Key to Mr. XX
On August 10 MIM Distributors received a letter from Mr. XX notifying us of the denial of four publications mailed to him: Under Lock & Key 23 (Nov 2011), 26 (May 2012), 27 (July 2012), and 28 (Sept 2012). Mr. XX forwarded us the publication review denial notifications.
Per your policy BP03.91 IVD: "The offender and the sender or addressee shall be provided a written statement of the disapproval and a statement of the reason for disapproval within three business days after receiving the correspondence. The notice shall be given on Correspondence Denial Forms. The offender shall be given a sufficiently detailed description of the rejected correspondence to permit effective use of the appeal procedures." In violation of this policy, we did not receive any notification of this mail rejection.
The U.S. Supreme Court has clearly stated that both the sender and the prisoner have a right, under the First Amendment and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, to receive notice and an opportunity to be heard when prison administrators or staff prevent the sender?s expressive materials from reaching their intended recipients (Procunier v. Martinez, 416 U.S.396. 94 S.Ct 1800, as reaffirmed on the point by Turner V. Safley, 482 U.S. 78 (1987) and Thornburgh v. Abbott, 490 U.S. 401 (1989) and Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996)). In plain and striking contradiction with these principles, MIM Distributors was not notified of the censorship decision or actually of any decisions that the Mailroom staff has made with regard to the publications listed above.
In refusing to provide notice and an opportunity to be heard to the publisher (MIM Distributors), under local policies and/or practices, prison administrators and staff violated clearly established constitutional law and acted under color of state law for purposes of 42 U.S.C. ? 1983.
The denials are listed as non-appealable, but this is also counter to explicit Texas DOC policy (BP-03.91 (rev.3)): "V. B. Any offender, other correspondent, or sender of a publication may appeal the rejection of any correspondence or publication. They may submit written evidence or arguments in support of their appeal. An offender or a correspondent may appeal the placement of the correspondent on the offender?s negative mailing list. An offender or a correspondent may appeal to the DRC for reconsideration of the negative mailing list placement after six months." Based on this we formally request an appeal of this censorship.
The denial notifications state that these four publications were denied because a page within each one "contains hunger strike." This statement is nonsense, as it's not possible for a publication to contain a hunger strike. However, we will assume this is meant to indicate that these publications have information about a hunger strike. The reason for the denial is cited as: "(c) It contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots or security threat group activity".
In your review of this censorship, please note that your own policy (BP-03.91 (rev.3)) states: "Publications shall not be rejected solely because the publication advocates the legitimate use of offender grievance procedures, urges offenders to contact public representatives about prison conditions, or contains criticism of prison authorities." In order to reject these publications for content, per your policy, you must demonstrate that the publication "contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve the breakdown of prisons through offender disruption such as strikes, riots, or STG activity". Although these publications do include articles calling on prisoners for a day of solidarity activity, this is specifically focused on building peace between prisoners. The call is issued by the United Front for Peace in Prisons, and asks prisoners to work together for 24 hours to cease all violence and prisoner-on-prisoner hostility while fasting or engaging in other peaceful demonstrations of solidarity. This is not something that could be construed to cause the breakdown of the prison, in fact it should have the effect of decreasing prisoner-on-prisoner violence in the long run, presumably a goal of the prison itself.
With this letter MIM Distributors requests
- Notification of all future denials of our mail to any prisoners in Texas
- Appeal of these specific instances of censorship
- An investigation into the erroneous denial of the prisoner's right to appeal this mail denial and report back on your determination and correction of this error on the part of the mail staff
- and that future incoming mail from MIM Distributors to prisoners held at Polunsky Unit be handled in accordance with TDCJ policies and procedures, and federal and state law.
XXX, Legal Assistant
PO Box 40799
San Francisco, CA 94140
CC: Affected parties