Tracking Prison Censorship in the United States

(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.

Remarks: Pg 234 Promotes peaceful protest, non-cooperation, hunger strike and no labor

Does offender wish to appeal the denial? Yes.

Rick Thaler, Director
Texas Department of Criminal Justice
Correctional Institutions Division
P.O. Box 99
Huntsville, Texas 77342

November 14, 2015

RE: Illegal censorship of book to Mr. xxx

Dear Director Thaler,

On September 28, 2015 MIM Distributors mailed a book titled Power and the Struggle for Aztlan to the above named prisoner held at Allred Unit in Iowa Park, TX. This book was not returned to MIM Distributors, and it was not received by Mr. xx. MIM Distributors was not sent any notification for this censorship, and we would not have known the book was censored except that Mr. xx informed us himself. MIM Distributors was not sent a Publication Receipt and Course of Action Form DOC0211 regarding this incident.

Per 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.

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".

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 reason that was cited to censor this material to Mr. xx is invalid. The reason given was “p. 234 promotes peaceful protest, non cooperation, hunger strike, & no labor.” I have enclosed a copy of page 234 for your convenience. As you can see, there is NO promotion on this page of those activities.

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.

Sincerely,

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

CC: Affected parties

The Director's Review Committee (DRC) has rendered a decision regarding your appeal of the Unit rejection of 1 page from an previously denied publication received in contradiction with BP-03.91, Uniform OFfender Corresepondence Rules.

...

It is the decision of the DRC to uphold the Unit rejection of the above mentioned item(s). You will have 60 dyas from the above date to make disposition of the denied item unless security mandates there be no disposition.

Correctional Institutions Division
Director's Review Committee
PO Box 99
Huntsville, TX 77342-0099
25 February 2016

RE: Illegal censorship of book to Mr. xx

Dear Director,

This letter is to make a disposition of the censorship of the book Power and the Struggle for Aztlan, which was originally sent to Mr. xx on September 28, 2016, at Allred Unit in Iowa Park, TX.

This book was censored for “p. 234 promotes peaceful protest, noncooperation, hunger strike, and no labor.”

MIM Distributors, the sender, was not notified of the censorship. This is a violation of Texas DOC policy (BP-03.91 (rev.3)) and various established case law.

On November 14, 2015, MIM Distributors wrote to your office. In that letter we:
1. appealed the censorship, and sent you a copy of p. 234
2. notified you that the censorship violated case law and DOC Policy
3. asked you to follow U.S. law and TDCJ policy
4. asked you to allow delivery of the book to Mr. xx

On January 6, 2016, your office responded to our November 14 letter, upholding the censorship. This DRC Decision Form gives no indication of in what way p. 234 violates mail rules. It does not explain what process was used to determine to uphold this censorship.

Being that the January 6 letter gives no information, and that continuing to uphold p. 234 as a reason for censorship is completely nonsensical, a reasonable person can only conclude that no investigation was made on the matter and that the DRC has no intention of actually following TCDJ policies or U.S. established case law.

We would like you to correct this error, and thoroughly review the matter at hand. We look forward to your response.

Sincerely,