October 30, 2018
North Carolina Department of Public Safety, Prisons
Director of Rehabilitative Programs and Services
MSC 4221
Raleigh, NC 27699-4221
Re: Appeal Response to Under Lock & Key May/June 2018 Issue 62
To Whom It May Concern:
We are in receipt of your response to our appeal, dated October 12, 2018, for the above referenced issue of Under Lock & Key (ULK). The original notice stated that the publication was rejected because of alleged content in violation of policy D.0109(f). However, the addendum references a violation of section (h) and specifies the offending material as being on page 2. The notice states page 2 “has verbiage that may incite disruptive behavior.” Disruptive behavior is not a violation of policy D.0109.
Your response to our appeal now relies upon entirely different reasoning to substantiate that the publication is not in conformity with NCDPS polices regarding inmate mail. It alleges general allegations of “violence against any ethnic, racial or religious group or reasonably appears likely to provoke or to precipitate a violent confrontation…” The appeal response further fails to provide any detail as to the location of and the content of the alleged offending language as required by a large body of federal caselaw.
Again, careful review of page 2 and the remainder of the publication shows no content which remotely meets the alleged objection set forth in the notice. Further, the content of page 2 does not meet any definition of objectionable content as defined by any portion of policy D.0109.
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).
Your response to our appeal fails to provide adequate notice of the reasons for censorship as it fails to state with any specificity the alleged offending content or reference to its location in the publication.
We require that you provide a specific and detailed notice to the alleged offending content with references to its location in the publication by page number.
It appears the NCDPS fails to take its responsibilities of adherence to the First Amendment seriously. Failure to provide adequate notice with which we may formulate a meaningful appeal may result in litigation against the NCDPS and any persons individual involved int eh violation of our constitutional rights.
Please govern yourself accordingly.
Sincerely,
MIM Distributors
