MIM(Prisons) is a cell of revolutionaries serving the oppressed masses inside U.$. prisons, guided by the communist ideology of Marxism-Leninism-Maoism.
MIM Distributors responds to Second Level Review
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Warden Greg Lewis
Pelican Bay State Prison
5905 Lake Earl Drive
Crescent City, CA 95531
October 21, 2012
RE: Censorship incident occurred at Pelican Bay State Prison -- Under Lock & Key No. 26 (May/June 2012) denied delivery to Mr. XXX
Dear Warden Lewis,
Mr. XXX has recently informed MIM Distributors of the Second Level Review you wrote responding to his appeal of the censorship of Under Lock & Key No. 26 (May/June 2012). I have an enclosed a copy of this Second Level Review for your reference. This letter is written in support of Mr. XXX's complaint. We believe the publication is not a threat to the safety or security of the institution, and we believe it should be permitted for receipt by Mr. XXX.
One article you cite in your Second Level Review as a reason to censor this newsletter is the article titled "Retaliation for Hunger Strike and New Protest Ideas" on page 9 of ULK 26. You cite this article under FINDINGS I, and page 9 is cited on the original Notification of Disapproval. This article is a report from a Corcoran prisoner outlining the retaliation he and his fellow prisoners are facing, even ones who did not participate in the state-wide hunger strikes in 2011.
Unfortunately, like many prisoners across the state, the author has discovered that filing grievances does not lead to resolution of the problems and abuses. In this article, the author offers a suggestion for a method of peaceful and legal protest to draw attention from prison administrators, such as yourself. Under Lock & Key is a peaceful newsletter which discourages all prisoners from initiating any violence, against guards or fellow prisoners. But if prisoners are being forced to live in unsafe and unsanitary conditions, and are underfed, erroneously censored, and brutalized, and are still not able to resolve these illegal human rights violations by the "proper channels," what then do you suggest they should do?
Since the editors, contributors, and subscribers of Under Lock & Key do not advocate violence, we instead offer ideas and discussion for other ways to resolve these horrible conditions. If people do not learn of these nonviolent methods of protest, they will instead lash out in violent ways out of frustration. Violence is a safety hazard for prison employees and prisoners alike.
Regarding FINDING II, in which you state Under Lock & Key is "inmate-to-inmate correspondence," I ask what other prisoner newsletters you censor for this reason? There are dozens of newsletters written by and for prisoners on a very wide range of topics, and I would be surprised if prisoners at PBSP were not also subscribed to newsletters your department finds more agreeable than ours. But regardless of the content, this reason for censorship should also apply to those other newsletters; otherwise it is clear you are using this as a smoke screen for your political agenda against anti-imperialism, which is of course illegal. Therefore I would like to request a list of materials which have been censored at Pelican Bay State Prison from June 2012 to present.
Also in FINDING II, you assert that "many prison inmates are committed to and promote activities of inmate terrorist groups..." and make a leap of faith that the prisoners who contribute to Under Lock & Key fall into this category. You go on describe an alleged conspiracy being waged by these "inmate terrorist groups" to "cause other mass disruptions of prison programs." First, prison programs are disrupted already because there is no positive programming to speak of. That anyone could disrupt prison programs is a joke. (Unless you are referring to psychological torment, contaminating food, and cell extractions as "programming.") Second, Under Lock & Key is not part of any conspiracy (defined as "a secret plan by a group to do something unlawful or harmful"). Everything Under Lock & Key stands for is printed right in the newsletter, none of it is illegal, and all we are trying to do is help people, not harm them (even the guards):
"ULK serves as a forum to develop and promote agitational campaigns led by MIM(Prisons) and USW. Our current battles in the United States are legally permitted. We encourage prisoners to join these battles while explicitly discouraging them from engaging in any violence or illegal acts. MIM(Prisons) and its publications explicitly oppose the use of armed struggles at this time in the imperialist countries (including the United States)." from page 2 of Under Lock & Key No. 26
Therefore, with the present letter, MIM Distributors requests
a Director's Level Review be conducted on the publication Under Lock & Key No. 26 (May/June 2012) in favor of delivery to Mr. XXX;
the determination of this Director's Level Review be sent to Mr. XXX and MIM Distributors;
the publication be delivered to Mr. XXX;
and a list of the materials censored by PBSP mailroom staff from June 2012 to present.
We appreciate your assistance in this matter and look forward to your response.
from MIM Distributors RE: ongoing censorship without notification
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Warden Greg Lewis
Pelican Bay State Prison
5905 Lake Earl Drive Crescent City, CA 95531
October 20, 2012
RE: Censorship incidents occurred at Pelican Bay State Prison ? exclusion of letters and publications sent to prisoner XXX by MIM Distributors
Dear Warden Lewis,
I am writing this letter regarding a series of censorship incidents that occurred at Pelican Bay State Prison. Mr. XXX has recently informed MIM Distributors that several items which we have sent him have not reached him. Unless there is a widespread problem with your USPS carrier, I suspect the mailroom staff at Pelican Bay State Prison (PBSP) is at fault. The primary concern is that neither Mr. XXX nor MIM Distributors were notified of the censorship of any of the materials listed below.
Newsletter Under Lock & Key No. 25 (March/April 2012) sent March 30, 2012 via presorted standard mail
Magazine MIM Theory 11: Amerikan Prisons on Trial sent March 30, 2012 via presorted standard mail
Newsletter Under Lock & Key No. 24 (January/February 2012) sent January 30, 2012 via presorted standard mail
Newsletter Under Lock & Key No. 23 (November/December 2011) sent November 18, 2011 via presorted standard mail
Letter about how to fight censorship, sent October 21, 2011 via first class mail
Letter containing study materials, sent October 13, 2011 via first class mail
Newsletter Under Lock & Key No. 22 (September/October 2011) sent September 21, 2011 via presorted standard mail
Your DOM states at sections 54010.16 and 54010.21.3 that respectively prisoners and publishers have to be notified of negative determinations and entitles both the sender and the recipient to appeal rejections of publications and letters. As of now, it is impossible for us to understand why the letters and publications haven?t been delivered to the prisoner and whether or not the Administration has decided to censor them.
As you are certainly aware, 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, neither the prisoners, nor MIM Distributors were 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 both the prisoners and 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.
In addition, the practice of holding publications and/or letters for an indefinite time without providing notice of any determination is certainly unconstitutional, as it does not satisfy the obligation that the prison administration has to provide both the sender and the recipient with a decision in a reasonable time and ultimately frustrates the right that both the sender and the prisoner have to appeal a negative determination.
With the present letter, MIM Distributors requests
-to know whether or not a determination has been made over the mentioned letters and publications;
in case of a negative determination, to be notified of the reasons of the censorship decision and -to be offered a chance to appeal the exclusion of its materials;
-and that adequate notice be provided to Mr. XXX of any information pertaining to mail intended for him from MIM Distributors, past, present and future.
We appreciate your assistance in this matter and look forward to your response.
Prisoner tried to have literature mailed home
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My name is xxxx. I sent you a letter about a book I got in the mail but could not have. I tried to send this book home but you said "Funds Not Available." On 10-10-12 you sent me an answer to this letter stating "your publication was destroyed per policy." As I said in my first letter, you said it is $2.90 to send the book home. I am indigent. I get 10 indigent stamps a month. 7 indigent stamps would have covered the mailing of this book. So why was it destroyed?
You just told the inmate in ABCDEFG (who also got something in the mail you would not let him get) that he could have used his 10 indigent stamps to sent it out but tit would not cover the mailing. So why was my book destroyed when I have the stamps to cover it? And policy says if we (indigent inmates) don't have the money you are supposed to take the money from the indigent inmate trust fund. So I need to know who destroyed my book? I need their full name because I will be filing a lawsuit.
10/12/2012
Mail room confirms MIM Theory 13 was destroyed
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You must have funds available in your account for trust fund officer to draw and mailroom to place on outgoing mail.
Dangerously inflammatory in that it advocates or encourages riot, insurrection, disruption of the institution, violation of department or institution rules[Download Documentation]
Notice to Inmate of a Statewide Disapproved Publication
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Date: 10/21/11
From: K. Stanback
RE: Disapproved Publication
Your publication/material, Under Lock & Key, Sept/October 2011, is on the Master List of Disapproved Publications list of the Division of Prisons. The publication/material violates Division of Prisons policy at section D.0109 and is disapproved for the reason listed. Please note the pages listed may not be the only pages in the material that violate North Carolina Division of Prisons policy; however, any violation is grounds for disapproval of the entire publication.
This publication appears on the statewide Master List of Disapproved Publications because it was disapproved during the previous twelve (12) months by the Division of Prisons Publication Review Committee. There are no additional appeal rights to this decision.
The publication/material has been disapproved due to the violation of Division of Prisons Policy Chapter D, Section .0109(f), because it contains threats to institutional safety and security including but not limited to materials which depict, describe or advocate or which include:
Reason .0109 I Materials which are used or which appear likely to be used to intimidate or sexually harass facility staff or visitors.
Page Number(s): 4
Reason for Disapproval: Contains information which may intimidate staff.
01/24/2012
MIM Distributors says we were never given a chance to appeal censorship
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Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260
January 24, 2012
RE: censorship of Under Lock & Key issue no. 23 ? prisoner XXX - Scotland Correctional Institution.
1. Background.
We recently received from prisoner XXX, currently held at Scotland Correctional Institution, a ?notice to inmate of a statewide disapproved publication? (attachment #2), with which K. Stanback informs the prisoner that issue no. 22 of our publication titled Under Lock & Key appears on the Master List of Disapproved Publications of the NC Division of Prisons. Therefore, states the notice, the publication is rejected and ?there are no additional appeal rights to this decision?.
We also received a letter from another prisoner held at Scotland Correctional Institution as well (CCC), stating that in the last four months he hasn?t received any issues of Under Lock & Key because the publication has allegedly been put on the Master List of Disapproved Publications.
It is important to note that MIM Distributors has never received from your Division of Prisons any notices or other letters regarding the inclusion of any of its publications in the Master List of Disapproved Publications.
At this juncture, therefore, it is hard for us to understand whether any of our publications is in fact on the list of disapproved publications, which issues are on the list, for what reasons, and since when.
2. The determination is illegitimate and unconstitutional.
The above determination of Ms. Stanback is illegitimate and unconstitutional for many reasons and under several aspects. It violates both principles laid down by the U.S. Supreme Court and rules established in your own policies, namely in policy D.0100 adopted by your Division on 09/24/2010, regulating publications received by prisoners.
As already noted, MIM Distributors has never received any notice about the inclusion of issue no. 22 (or any other issue) in the Master List of Disapproved Publications. As you are responsible to know, section 0107 of your policy D.0100 requires that ?When pursuant to law the Division of Prisons rejects a publication mailed to an inmate, the publisher shall be notified in writing of the reason for rejection and the procedure to follow to appeal the rejection, including the responsibility of the publisher to submit a written appeal.?
If issue no. 22 of Under Lock & Key is actually on the Master List of Disapproved Publications by virtue of a previous decision, that decision (and the new one we?re discussing here) would be illegitimate and unconstitutional because it has never been notified to the publisher. The determination we?re discussing here would be illegitimate as well, as it would entirely rely on a previous illegitimate determination.
In sum, the above rule (section 0107 of policy D 0100) would have been violated twice by Ms. Stanback, who has presumably sent the mentioned notices only to the prisoners.
If issue no. 22 of Under Lock & Key wasn?t on the Master List of Disapproved Publications at the moment Ms. Stanback rejected it for prisoner XXX, then the determination would also be in contradiction with Section .0105 of the same policy, which specifies that ?The Master List does not ban the publication title but only those volumes, issues or editions that have been reviewed and rejected.?
In either case, therefore, the most recent negative determination of Ms. Stanback appears to be illegitimate for it clearly conflicts with the above rules included in your own policies.
3. The NC Division of Prisons Policy D.0100 is unconstitutional as it violates due process rights of prisoners and publishers.
Furthermore, section D.0105 of your policy no. D.0100 is certainly unconstitutional, inasmuch as it does not afford the publisher and the prisoner the right to appeal a negative determination whenever the rejected publication already appears on the Master List of Disapproved Publications.
The U.S. Supreme Court has made it clear 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)).
The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These protections evidently are the typical due process safeguards, which substantiate any other constitutional right and afford individuals a chance to appeal governmental decisions that affect their fundamental rights, among which the most cherished certainly are First Amendment rights.
In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.
The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.
It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.
4. Establishing a list of disapproved publications is unconstitutional, too.
Your policy D.0100 is also unconstitutional for the very fact that it establishes a list of disapproved publications. The Supreme Court has already struck down similar bans across the country and has flatly stated since 1989 that "Wardens may not reject a publication 'solely because its content is religious, philosophical, political, social[,] sexual, or . . . unpopular or repugnant,' or establish an excluded list of publications, but must review each issue of a subscription separately." Thornburgh v. Abbott, 490 U.S. 401 (1989).
Nor does the temporary nature of the inclusion of a publication in the list exclude its unconstitutionality. What the Supreme Court is trying to avoid is any automatic mechanism by which prison administrators may avoid the obligation to review each publication or issue separately. Here, the inclusion of a publication in the Master List of Disapproved Publications determines precisely the mechanism that the Supreme Court has addressed as illegitimate, as prison administrators may reject the publication (although for a period of 12 months) without reviewing it.
Based on the above considerations, we request that:
1) the censorship determination to include Under Lock & Key no. 23 on the MLDP be reversed;
2) the publication be allowed to the above prisoners;
3) the practice of including publications in the Master List of Disapproved Publication be discontinued;
4) the previously included issues be separately reviewed regardless of the inclusion;
5) your policy D.0100 be amended to accurately reflect United States law.
We appreciate your assistance in this matter and look forward to your response.
Sincerely,
MIM Distributors
CC: Affected parties
02/07/2012
MIM Distributors says ULK is not on Master List of Disapproved Publications
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Assistant Director of Support Services
North Carolina Department of Corrections
Division of Prisons
4260 MSC
Raleigh, NC, 27699-4260
February 7, 2012
RE: Censorship incident occurred at Scotland Correctional Institution on October 21, 2011; exclusion of publication sent to prisoner Mr. XXX by MIM Distributors.
Dear Assistant Director,
On January 24, 2012 I wrote to your office regarding the censorship of a publication titled ?Under Lock & Key? issue no. 23 to the above named prisoner at Scotland Correctional Institution. The reason Karen Stanback (Warden/Superintendent/Designee at Scotland CI) gave to Mr. XXX in support of her disapproval of this publication was "Your publication/material, Under Lock & Key, Sept/October 2011, is on the Master List of Disapproved Publications list of the Division of Prisons."
I am writing again on the same matter because some new information has been brought to my attention.
In fact, on January 24, 2012, I had also written to your office regarding the censorship of the very same publication mentioned above to a different prisoner held at Lanesboro Correctional Institute (prisoner YYY).
While I haven?t received any response with regards to the censorship at Scotland CI, Becky Warwick, Administrative Services Manager at Lanesboro CI, in a letter dated January 25, 2012 stated that "This publication is not listed on the Master List of Disapproved Publications listing" in regards to issues 21, 22, and 23 of Under Lock & Key.
In light of this new information, it seems that your staff at different Correctional Institutions has contradicting information regarding the presence of Under Lock & Key issue no. 23 on the Master List of Disapproved Publications. That means either that there are different versions of the list within your Department, or that some of the Wardens or Superintendents are not aware of how to actually read the list and/or update it. In either case, the outcome is the issuance of illegitimate negative determinations, clearly founded on invalid practices in keeping, updating and amending the Master List of Disapproved Publications.
With the present letter, thus, we request:
1) once again that the publication Under Lock & Key issue no. 23 be delivered to the prisoner XXX held at Scotland Correctional Institution;
2) that a copy of the official Master List of Disapproved be sent to us from your Department;
3) that your Department implement best practices to ensure uniformity in keeping, updating and amend the Master List of Disapproved publications in all its facilities.
MIM Distributors says MLDP is unconstitutional and each incident of censorship should be appealable
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Cynthia Bostic, Assistant Director
Support Services
4274 Mail Service Center
Raleigh, NC 27699-4274
June 4, 2012
RE: Your April 11, 2012 letter regarding denial of Under Lock & Key No. 22 (September/October 2011) to Mr. XXX
Dear Ms. Bostic,
Thank you for your lengthy and informative responses to the many letters I have sent you recently on behalf of MIM Distributors. Regarding the censorship of Under Lock & Key No. 22 (September/October 2011) to Mr. XXX, I apologize for any confusion in my letter to you. We were in fact referring to issue No. 22, not issue No. 23.
Issue 1: Items placed on MLDP before appeal deadlines expire
You are correct that on October 13, 2011, a letter was dated to MIM Distributors, informing us that issue No. 22 of Under Lock & Key was "disapproved for delivery to the inmate." It is our understanding that denied publications are referred to the Publication Review Committee (PRC). Publications denied by the PRC are automatically placed on the Master List of Disapproved Publications, even when appeal timeframes have not yet expired.
MIM Distributors is a volunteer organization. We do not have the bureaucratic manpower, or the downtime of a prisoner in captivity, necessary to immediately respond to every incident of censorship the moment we are notified. Furthermore, MIM Distributors is not a legal team, and we do not have the funds to consult legal counsel for each incident of censorship. Since censorship of an issue of Under Lock & Key for a full year has an extremely significant impact on our First Amendment rights, as well as those of the prisoners in correspondence with us, we ask that you extend your official timeframe for appeal so that we may perform a thorough investigation into our records, and prepare a substantive argument. There is simply no due process when we are mailed a notification of censorship on October 14, the item is placed on the MLDP on October 21, and must stay there with no appeal rights for one full year.
If the item is placed on the MLDP well before the nominal fifteen day time limit is expired, what is the harm in offering the publisher a longer timeframe to form their appeal? There appears to be no difference administratively dependent on whether an appeal is received from the publisher or not, because it's automatically placed on the MLDP before the appeal timeframe expires. Without explicit policy protections, it is easy for an appeal to be wrongfully denied because "the publication is already on the MLDP," which is what appears to have happened to Mr. XXX.
Issue 2: MLDP undermines appeal rights and due process
Besides the limited timeframes offered for appeal rights, other main problems with North Carolina's appeal process are (1) that it does not offer appeal rights on each incident of censorship and (2) that prisoners are not permitted to make an argument for why their publication should not be denied delivery. We wrote to your office on this issue in a letter dated January 24, 2012. Below I will include an excerpt from that letter for your reference.
The U.S. Supreme Court has made it clear 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)).
The right that both the publisher and the prisoner have to appeal negative determinations may not be abridged only because the publication is allegedly on a list of disapproved publications. These protections evidently are the typical due process safeguards, which substantiate any other constitutional right and afford individuals a chance to appeal governmental decisions that affect their fundamental rights, among which the most cherished certainly are First Amendment rights.
In light of the these considerations, thus, there is very little doubt that decisions that affect publishers? First Amendment rights in the prison context must be accompanied by the typical due process safeguards, i.e. by procedural mechanisms that offer the publisher the opportunity to contest and fight the decision to exclude its materials.
The fact that the rejected publication may appear on a list of previously disapproved publications does not constitute a valid reason to deprive the prisoner and the publisher of the right to appeal the censorship determination. Both the prisoner and the publisher may not have had an opportunity to appeal the previous decision that initially included the publication in the list, just like it happened in the present case. Depriving them of the right to appeal the new censorship determination means nothing less than completely abridging those fundamental due process safeguards whose pivotal role in the prison mail censorship system the Supreme Court has so clearly stated.
It is very clear indeed that every single negative decision made by prison administrators must be accompanied by the above safeguards, regardless of the existence of a previous negative determination regarding the same publication. Even the same prisoner or publisher may have developed new arguments to submit while appealing the decision and therefore they may not be deprived of their right to fight the censorship decision.
Conclusion
In closing, MIM Distributors would like to offer you the following suggestions for how to improve the Constitutionality of your appeals process regarding censored publications and the First Amendment rights of prisoners and publishers:
(1) Offer appeal rights on each incident of censorship, and do away with the unconstitutional MLDP process.
(2) Allow prisoners to submit arguments with their appeals as to why they believe their publication should not be denied.
We appreciate your assistance in this matter and look forward to your response.
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