Prison Legal News settled the lawsuit for $175,000.
Named as defendants in the suit, which was filed in October, 2012, were the county, Sheriff Anthony Betterton and Sheriff’s Lt. Jill McCauley.
The suit stated that Upshur County Jail’s inmate handbook contained “no written criteria explaining when a publication will be rejected,” and the jail’s mail policy “did not provide a sender any notice or explanation when a book is censored,” stated a story in the February, 2014, edition of Prison Legal News (PLN), reporting the settlement.
The story stated that PLN had mailed copies of its monthly magazine to prisoners at the Upshur County Jail, as well as letters, renewal notices, brochures and copies of a book, Protecting Your Health and Safety.
The article said that the jail rejected about 90 of PLN’s publications over a one-year period, stamping them “No Newspaper,” “Unauthorized Mail,” “Not Approved,” or “Refused.”
The article said “the jail also rejected legal mail sent to prisoners by PLN’s attorney. No notice was provided regarding this censorship, and PLN was not afforded an opportunity to appeal the rejection of its publications.
Lance Weber, general counsel for the Human Rights Defense Center (HRDC), the nonprofit parent of PLN was quoted in the article as saying “The purpose of jail is to hold the criminally accused for trial, not to punish them. Depriving pretrial detainees too poor to afford bail, who are presumed innocent—of access to information that could assist them in enforcing their rights is inexcusable.”
The article reported that on Sept. 30, 2013, a federal district court granted PLN’s motion for a preliminary injunction, finding that the withholding of at least some of the correspondence with prisoners “deprived the plaintiff, PLN, of its First Amendment rights without due process of law.”
While the jail had adopted a new mail policy before the granting of the preliminary injunction, and the court said that was a “clear improvement,” but that it “still falls short of establishing the minimum procedural safeguards constitutionally required to protect PLN’s First and Fourteenth Amendment rights without due process of law.”
The court also held that PLN was likely to prevail on the merits, and “Upshur County subsequently agreed to settle.”
The consent decree settling the case provides that the county will “implement a new Correspondence and Incoming Publication Plan at the jail, to include “disseminating a copy of the New Policy to all employees of the Upshur County Jail and confirming that each recipient has read the same, disseminating the New Policy to members of the general public by posting it conspicuously on a website maintained by or on behalf of the Upshur County Sheriff’s Office, and disseminating a copy of the New Policy to inmates by including it in the inmate handbook and by posting a copy in common areas for at least 14 days.”
The new jail policy provides that prisoners can receive periodicals, books, newspapers, brochures, magazines and other correspondence— “subject to specified security concerns.” It also provides that “both prisoners and those who send them mail will receive notification of any censorship by jail staff, and will have the opportunity to appeal same.”
The county also agreed to pay $175,000 in damages, costs and attorneys’ fees.
PLN editor Paul Wright was quoted in the article as saying “We are pleased with the outcome of this case, though it could have been resolved much earlier, at much lower cost to Upshur County, had county officials acknowledged that the previous mail policy in effect at the jail was inadequate.”
Counsel Weber told The Mirror that “they fought us hard to keep us from being able to reveal that number.”
He said that they told the county’s attorneys that the settlement was public record, and that they would use it in their own magazine.
“We’ve already got the funds,” Weber said. “The case is closed up.”
Upshur County Judge Dean Fowler said the decision to settle was made by the county’s insurance carrier, the adjusters and the lawyers, not the county.
“Once the insurance company decides to settle, the insured really doesn’t have a choice,” the judge said.