Tracking Prison Censorship in the United States

December 21, 2018

Pennsylvania Department of Corrections
Office of Policy, Grants and Legislative Affairs
1920 Technology Parkway
Mechanicsburg, PA 17050

Re: Appeal of Censorship of Publication
Under Lock and Key Issue 64
Censorship Guide

Prisoner XXX


To Whom It May Concern:

On November 2, 2018 we mailed the Censorship Guide, in letter form, to Smart Communications in Florida per the PADOC guidelines addressed to Mr. XXX. The letter was returned to us, stamped “Return to Sender” and had been opened and taped shut. There was no notice of censorship or reason for the return of the letter.

We also mailed Under Lock and Key (ULK), issue 64, to Mr. XXX directly to the prison as was the policy until the end of 2018. ULK 64 was returned to us marked “Refused” with no other explanation.

Due process requires adequate notice of the reasons for censorship. Instructive is the District Court’s reasoning set forth in Prison Legal News v. Jones, “Procunier demands that the publisher "be given a reasonable opportunity to protest" the censorship. Id. at 418. For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, "Some Kind of Hearing", 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is "fundamental" to due process that "notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it"). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with [the publisher or distributor], due process requires that [the publisher or distributor] be told of this new reason.” 126 F. Supp. 3d 1233, 1258 (N.D. Fla. 2015).

At this point we are unable to communicate with Mr. XXX, in violation of our First Amendment rights. Your policies as listed on the FAQ portion (https://www.cor.pa.gov/family-and-friends/Pages/Mailing-Addresses.aspx) of the PADOC website are vague and failed to list the Secure Processing Center. Though it does appear the SPC address is now listed on other sections of your website.

Nonetheless, your policies, in the current manner they have been carried out, are an ongoing violation of our rights. You must immediately process our mail to all PADOC inmates and provide censorship notices, if applicable. Failure to do so may result in litigation to enforce our rights.

Please govern yourselves accordingly.


Sincerely,

MIM Distributors

Enclosed you should find a copy of a publication denial form concerning Under Lock & Key No. 63 which I have initiated a formal grievance process.

It consists of asserting due process violation because of not providing me an opportunity to appeal (witin two (2) weeks) the denial decision of Director's Review Committee (DRC).

It should not be a surprise hearing what mailroom personnel explained when I asked why they took short cuts: When the Unit mailroom is delivered "Under Lock & Key" and "Prison Action News" publications, DRC had instructed mailroom personnel to use none of their discretion but rely on DRC to determine that status of those two publications.

You'll notice on the denial form where it asks "Does Offender wish to appeal the denial?" D. Warren marked "x" indicatating Non-Appealable. That prompted me to conspicuously sign under duress so I could get a copy of the denial form.

I received your magazine Under Lock & Key. I appreciate the magazine and the helpful information inside. I did have a small problem at first with the mailroom here, who at first withheld the magazine, for 7 days claiming pages 1 and 5 advocates prison disruption and strike.

After much prayer and filing a grievance, seven days later the mailroom here gave your magazine to me.

(c) Publication contains material that a reasonable person would construe as written solely for the purpose of communicating information designed to achieve a breakdown of prisons through offender disruption such as work strikes, riots or security threat group activity.

Remarks: Reason C. Page(s) 1 and 5 advocates for prison disruption/strike.

On 11/01/2018 the above publication was appealed to the Director's Review Committee with the following decisions rendered:

Denied; offender will not receive.

(MIM Distributors was not notified of censorship prior to this Directors' Review Committee decision.)

On the Publican Review/Denial Form, "Destroy" is checked. The only other option is "Send to the following person at the offender's expense." MIM Distributors pays the return postage for returned ULKs. So it can be returned at no expense to the prisoner. It does not need to be destroyed.

"I was given no choice in whether to appeal it."

Correctional Institutions Division
Director's Review Committee
PO Box 99
Huntsville, TX 77342-0099


November 12, 2018

RE: Illegal censorship of Under Lock & Key No. 63

Dear Director's Review Committee,

This letter is regarding the publication named above, which has been censored in Texas prisons, without notification sent to the publisher and sender, MIM Distributors. The publication was sent via USPS Standard Mail.

Under Lock & Key No. 63 (July/August 2015) was mailed to prisoners in various facilities operated by TDCJ on August 6, 2018. No notification letter was sent to MIM Distributors to say that the publication was being reviewed or denied. This is in direct violation of Board Policy-03.91 IV. E. 2. Notice, which reads:

“If a publication is rejected, the offender and sender shall be provided a written notice of the disapproval and a statement of the reason for disapproval within 72 hours of receipt of the publication on a Publication Denial Form. Within the same time period, the offender and sender shall be notified of the procedure for appeal. The offender shall be given a sufficiently detailed description of the rejected publication to permit effective use of the appeal procedures. The offender or sender may appeal the rejection of the publication through procedures provided by these rules.”

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, MIM Distributors was not notified of the censorship decision that the Mailroom staff has made with regard to the publication listed above.

Since MIM Distributors was not given notification of the denial of its newsletter, it was never offered a chance to appeal the censorship. MIM Distributors was not offered a chance to submit an appeal per Board Policy-03.91 V. B. Correspondence Appeal Procedure:

"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..."

It is on these grounds that MIM Distributors insists on your consideration of our appeal.

On November 2, 2018 a letter was mailed to MIM Distributors from the Director’s Review Committee, with notification that Under Lock & Key No. 63 had been reviewed and denied for reason “Reason C. Page(s) 1 & 5 advocates for prison disruption/strike.” This was the first time MIM Distributors was notified of the censorship of Under Lock & Key No. 63 by TDCJ. With this letter I have enclosed a copy of pages 1 and 5 for your reference.

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".

MIM Distributors insists that pages 1 and 5 of Under Lock & Key No. 63 do not meet this criteria for censorship. We insist on your reversal of this censorship and the immediate delivery of the publication to its intended recipients. We also insist on its removal from TDCJ’s list of denied publications.

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.

Sincerely,

Legal Assistant
MIM Distributors
PO Box 40799
San Francisco, CA 94140

CC: Affected parties

Just wanted to advise you that on November 02, 2018 I was summoned to the mail room and told by a mailroom clerk here that per the DRC Huntsville Unit the July/August 2018 No. 63 publication is banned, that pages 1 + 5 advocates prison disruption and strikes, and that the decision is non-appealable.
Robinson - mail room representative
Denied date 11/01/2018