Warden Anthony Hedgpeth
Salinas Valley State Prison
P.O. Box 1050
Soledad, CA 93960-1050
May 4, 2012
RE: Censorship of Priority Mail Envelope sent to Mr. XXX on September 12, 2011 from MIM Distributors
Dear Warden Hedgpeth,
I am writing this letter about a censorship incident that recently occurred at Salinas Valley State Prison (SVSP).
Background
As you may recall, you and I have exchanged a series of letters about mysterious ongoing censorship of mail from MIM Distributors to prisoners held at SVSP. I will outline them below for historical reference, so this most recent censorship incident can be put into the context of the long runaround your Department has been putting us through to
In your letter dated April 28, 2009, you acknowledged that MIM Distributors does not appear on the list of disapproved publishers.
In your letter dated July 6, 2009, you apologize that a letter intended for a prisoner was censored. To accompany this letter, the SVSP Mailroom Supervisor informed MIM Distributors via telephone that the mailroom staff had been trained to not ban literature from us.
In your letter dated March 23, 2010, you say that a temporary mailroom staff was banning our literature, yet again. Note that this letter was written almost one full year after you yourself acknowledged that MIM Distributors was not a disapproved publisher. How long does it take to send a memorandum from your office to the Mailroom Supervisor? It is not really our concern whether the staff is temporary or permanent. Our concern is that we are sending mail into SVSP, and people you are responsible for are denying our First Amendment right. This is still an ongoing problem, which I will outline below.
In your letter dated September 9, 2010, you claim that there is no censorship of mail from MIM Distributors at SVSP, even though our contact with prisoners there tells us otherwise.
Finally, in a letter dated December 16, 2010, you state that the Mailroom Supervisor claims that "mailroom staff has not seen any newsletters or publications from 'MIM' come through the mailroom since September or October 2010." This letter is quite dated, so I will just make one point: In addition to multiple letters and special literature orders sent into SVSP between "September or October 2010" and December 2010, on November 19, 2010 we mailed our newsletter Under Lock & Key No. 17 (November/December 2010) via Standard Presorted mail with the USPS to no less than one dozen prisoners held there.
Present Issue
Recently Mr. XXX informed MIM Distributors of several articles of mail which were not delivered to him, sent from MIM Distributors. I will list the articles of mail which were not delivered to Mr. XXX, and then focus on one in particular. It should be noted that none of the denials listed below were accompanied by notification to the publisher/sender or prisoner, as outlined in your DOM sections 54010.16 and 54010.21.3.
Article Date Sent
Under Lock & Key No. 16 (September/October 2010) 9/24/2010
Under Lock & Key No. 17 (November/December 2010) 11/19/2010
a letter 9/2/2011
newspapers in a Priority Mail envelope 9/12/2011
Under Lock & Key No. 22 (September/October 2011) 9/21/2011
Under Lock & Key No. 23 (November/December 2011) 11/18/2011
The article of mail I would like to focus on is the Priority Mail envelope which was sent on September 21, 2011. With this letter I have enclosed a copy of the U.S. Postal Service Delivery Confirmation Receipt which accompanied the Priority Mail envelope. As you can see, it is stamped as being sent on September 12, 2011. I have also enclosed a print-out of the confirmation of delivery from the USPS website. Clearly the package was delivered to the SVSP mailroom.
But then what happened to it? This is a point that only you and your Mailroom Supervisor can answer. Neither MIM Distributors nor Mr. XXX were notified that this envelope would be denied delivery to Mr. XXX.
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 you are certainly aware of, 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 prisoner, nor MIM Distributors were notified of the censorship decision or actually of any decisions that the mailroom staff has made with regard to any of the above-listed articles of mail sent to Mr. XXX.
In refusing to provide notice and an opportunity to be heard to both the prisoner 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:
1. to know whether or not a determination has been made regarding the Priority Mail envelope which was delivered to SVSP on September 13, 2011 by the U.S. Postal Service;
2. 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;
3. that adequate notice be provided to the prisoner regarding this issue;
4. and, lastly, that mail from MIM Distributors be handled properly by SVSP mailroom staff, in accordance with CDCR's policies and procedures, U.S. law, and your own assurances.
We appreciate your assistance in this matter and look forward to your response.
Sincerely,
MIM Distributors
CC: Affected parties
CDCR, Office of the Ombudsman
1515 S Street, Room 124 South
Sacramento, CA 95811
