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Vaughan v. Erwin

United States District Court, W.D. Kentucky, Bowling Green Division

May 21, 2018

MICHAEL VAUGHAN PLAINTIFF
v.
JAMES ERWIN et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge.

         Plaintiff, Michael Vaughan, filed a pro se, in forma pauperis 42 U.S.C. § 1983 complaint (DN 1) and amended complaint (DN 5).[1] This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007). For the following reasons, the complaint will be dismissed in part and allowed to continue in part.

         Motion for leave to file second amended complaint (DN 7)

         Plaintiff filed a second amended complaint which has been docketed as a motion for leave to file a second amended complaint (DN 7) because a party may only amend his pleading as of right one time within 21 days of serving it. Fed.R.Civ.P. 15(a)(1). To amend a second time, Plaintiff may amend only with the opposing party's written consent or the Court's leave. Fed.R.Civ.P. 15(a)(2).

         In his proposed second amended complaint, Plaintiff adds an allegation that postdates the prior amended complaint that he received a book sent to him by a family member from Barnes and Noble, despite Barnes and Noble not being an “authorized vendor.” He also adds an allegation that veterans and disabled veterans are protected classes and that he is a combat-related, service-connected disabled veteran.

         IT IS ORDERED that DN 7 is GRANTED. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”).

         I. SUMMARY OF CLAIMS

         Plaintiff, an inmate at the Roederer Correctional Complex (RCC), sues the following Defendants in their individual and official capacities: Kentucky Department of Corrections (KDOC) Commissioner James Erwin; former KDOC Commissioner Rodney Ballard; KDOC Deputy Commissioner Kimberly Potter-Blair; KDOC Deputy Commissioner and Warden Ravonne Sims; RCC Deputy Wardens Amy Robey and Sharon Veech; KDOC Director Chris Kleymeyer; KDOC employees Ashley Short and Debbie Kays; RCC Captain Cody St. Clair; and 20 Doe Defendants.

         Plaintiff alleges that books he ordered in November 2017 to help him with his state-court post-conviction “petition for declaratory judgment” were censored by RCC as not being from an authorized distributor. He states that he ordered these books from the Human Rights Defense Center's (HRDC) Prison Legal News (PLN). He appealed the denial of his books to Defendant Sims. He alleges that the books were blocked after “the DOC already had notice (July 17 2017, EDKY 3:17-CV-57) and had been sued that their prison policy was unconstitutional.”

         The Court notes that the case Plaintiff refers to in the Eastern District of Kentucky, Civil Action No. 3:17-cv-57, was brought by the HRDC against almost all of the same Defendants as in this case. Human Rights Defense Center v. Ballard, Civil Action No. 3:17-cv-57-GFVT (E.D. Ky.). Plaintiff HRDC in that case alleges that Defendants “adopted and implemented mail policies prohibiting delivery of written speech from [HRDC] and other speakers, failed to provide adequate due process notice of and an opportunity to challenge the censorship, and denied [HRDC] equal protection[.]” That case is still ongoing with a jury trial scheduled to commence on May 21, 2019.

         Plaintiff also alleges that in December 2017, he ordered several books form Edward R. Hamilton Book Sellers (Bargain Books), but these books were also censored by RCC as not being from an authorized distributor. He likewise appealed the censorship of these books.

         Plaintiff alleges that KDOC's and RCC's mail policies and practices are unconstitutional because they only allow books to be ordered from an “authorized vendor” or “legitimate distributor” but do not identify such vendors or distributors. He alleges that the two distributors from whom he ordered the books which were censored - HRDC/PLN and Edward R. Hamilton (Bargain Books) - are legitimate distributors. He alleges that the approved-vendor-only policy limits his freedom of speech in violation of the First Amendment. He further alleges that the policy is neither content-neutral nor does it further the goal of reducing contraband.

         In his amended complaint, Plaintiff alleges that, in response to his open-records request, he was told by Defendant Sims that the reason his book orders were rejected was because they were ordered from unauthorized vendors; that the authorized vendors for RCC are Amazon and Books A Million; and that the reason those vendors were chosen is “because of the vast array of material they offer.” He further alleges in his amended complaint that “all Roederer inmates are barred from accessing the Internet” but that “Amazon and Books-a-Million catalogues are all online and orders are taken only online.” He further alleges that PLN and Edward R. Hamilton Books “have readily accessible written catalogues and paper order forms easily accessible by inmates.” His amended complaint also adds a claim that Defendants' approved-vendor-only policy would bar veterans from using their GI Bill benefits because books paid for and sent from universities and schools would be barred by that policy. As already noted, in his second amended complaint, Plaintiff alleges that he is a disabled veteran.

         Plaintiff also alleges that he has been retaliated against and that his right to seek redress from the courts has been violated. He further alleges violations of his and other inmates' First Amendment right and Fourteenth Amendment right to equal ...


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