Tracking Prison Censorship in the United States

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

November 12, 2015

RE: Illegal censorship of book to Mr. xxx

Dear Director Thaler,

On October 5, 2015 MIM Distributors mailed a book titled Chican@ Power and the Struggle for Aztlan to the above named prisoner held at Garza East Unit in Beeville, 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 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,

MIM Distributors

CC: Affected parties