Petition for Writ of Certiorari — Dennis Rydbom, Petitioner v. Lisa Boggs, et al.

Supreme Court briefApr 18, 2019

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Text

No.

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`1815

IN THE

SUPREME COURT OF THE UNITED STATES

(

LTITj

(Your Name)

APR 182019

vs.

L/f3ac1

OFFICE OF THE CLERK

SUPREME COURT, U.S.

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

• Ci. £ Court d AppiIi Jo, f4& ,t'rfA

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

a1Ai,1i,c ,QV,9gOn c'/D1fY,,'83

(Your Name)

iii: elf t& 6 ffa,h9/

(Address)

nit o/V6, W" gj'gç

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

Prison officials withheld mail addressed to prisoner

Dennis Rydbom; such mail being (1) an Edward R. Hamilton book

catalog, and (2)' a National Academy of Science report on,

eyewitness identification printed from the internet.

Prison officials incorrectly described the internet

document as "book(s), newspaper(s), or magazines(s) not

received directly from the publisher 'COPIES NOT ALLOWED,"

received from Steven Saines, and costing $1.89 to mail out.

Prison officials and the lower courts refused to

explain how withholding Rydbom's mail was reasonably related

to legitimate penological objectives.

Is the ban against West Virginia prisoners' receipt

of catalogs and of internet documents excessive and overly

broad under the First Aid

free speech clause?

Does the Fourteenth Amendment's Due Process clause

require prison officials to give a prisoner a reasonably

honest and accurate description of seized mail along - with a

valid penological reason for withholding a particular catalog

or internet document, so the prisoner can knowingly and

intelligently decide whether to accept/dispute such seizure?

Must a federal court actually state how withholding

a prisoners mail is "reasonably related to legitimate

penological interests" when dismissing a prisoner's civil

rights complaint for failure to state a claim?

LIST OF PARTIES

All parties do not appear in the caption of the case on

the cover page.. A list of all parties to the proceeding in

the court whose judgment is the subject of this petition is

as follows;

Dennis Rydbom, OID#3571836

Petitioner,

Lisa Boggs, Supervisor II at Mt. Olive Correctional Complex

David Ballard, Warden of Mt. Olive Correctional Complex

James Rubenstein, Commissioner of the W.Va. D.O.C.

Respondents.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION ............................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...........3

STATEMENT OF THE CASE ......................................4

REASONS FOR GRANGING THE WRIT ..............................11

SUMMARY OF ARGUMENT ........................................11

CatalogBan ..........................................11

Internet Ban .........................................12

ARGUMENT .....................................................13

Catalogs... .; ......................................... 13

InternetDocuments ....................................17

CONCLUSION .................................................21

INDEX TO APPENDICES

APPENDIX A:

Decision of U.S. Court of Appeals for the

Fourth Circuit

APPENDIX B:

Decision of U.S. District Court for the

Southern District of West Virginia

APPENDIX C:

Proposed Findings and Recommendation of the

Magistrate Judge

APPENDIX D:

Order of the Fourth Circuit Court Appeals

denying timely filed Petition for Rehearing

APPENDIX E:

Complaint with Jury Demand

APPENDIX F:

Defendant's Motion to Dismiss Complaint and

Memorandum in Support

APPENDIX G:

Plaintiff's Objection to Magistrate's

Proposed Findings and Recommendation

APPENDIX H:

Plaintiff-Appellant's Informal Brief before

the U.S. Court of Appeals

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Allen v. Higgins, 902 F.2d 682 (8th Cir. 1990)

Clement v. California Dep't of Corrections, 364

F.3d 1148 (9th Cir. 2004)

Dixon v. Kirby, 210 F. Supp. 2d 792 (SD.W.Va.

2002), aff'd 48 Fed. Appx. 93 (4th Cir. 2002)

(unpublished)

Hughbanks v. Dooley, 2012 U.S. Dist LEXIS 12479

(D.S.D, 2 Feb 2012)

Prison Legal News v. Lehman, 397 F.3d 692 (9th

Cir. 2005)

Turner v. Safley, 482 U.S. 78 (1987)

Virginia State Board of Pharmacy v. Virginia

Consumer Council, 425 U.S. 748 (1976)

West v. Frank, 2005 WL 701703 (W.D.Wisc., 25 Mar

2005)

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[v 'is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[tTs unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

[ ] reported at

; or,

[ I has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the

appears at Appendix

court

to the petition and is

[I reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[] is unpublished.

JURISDICTION

[ For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was A I/2&tNSeg g4'i

[II No petition for rehearing was timely filed in my case.

[A timely petition for rehearing was denied by the United States Court of

c/g,avaø'/f , and a copy of the

Appeals on the foIlovring date: ai

order denying rehearing appears at Appendix

[ II An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on ____________________ (date)

in Application No.

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix

[1 A timely petition for rehearing was thereafter denied on the following date:

and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. ..A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONSTITUTION, AMENDMENT I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.

U.S. CONSTITUTION, AMENDMENT XIV, SECTION 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the united States,

nor shall any State deprive any person of life,

liberty or property, without due process of law;

no deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

This case stems from West Virginia prison officials

seizing harmless mail addressed to the petitioner, Dennis

Rydbom. Rydbom exhausted the prison grievance process and

then sued for relief. The U.S. District Court dismissed the

complaint for failure to state a claim.

On Friday, 03 October 2014, the USA Today published an

editorial from Barry Scheck of the Innocence Project

regarding the National Academy of Science's "groundbreaking"

report on memory and eyewitness identification.

Rydbom wrote to the National Academy of Science, 500

Fifth Street, NW, Washington, DC 20001, requesting a copy of

their report on memory & eyewitness identification. Rydbom

never received any response to his 22 October 2014 letter to

the National Academy of Science.

Rydbom next asked the W.Va. State Law Library for a

copy of the National Academy of Science Report on memory &

eyewitness identification. Rydbom received a note from the

W.Va. State Law Library on 18 November 2014, saying they did

not have the requested NAS report.

On 18 November 2014, Rydbom heard on National Public

Radio a professor Brandon Garrett of the University of

Virginia discuss the National Academy of Science report on

memory & eyewitness identification.

The next day, Rydbom wrote to Professor Brandon

Garrett1 do University of Virginia, Charlottesville, VA

22903, trying to find a copy of the NAS report. Rydbom's

letter to professor Garrett was Returned to Sender.

Rydbom then went back and wrote to Barry Scheck at the

Innocence Project, 100 Fifth Ave., 3rd Floor, New York, NY

10011, for the NAS report referred to above. Rydbom's letter

to Barry Scheck was also Returned to Sender.

After trying various other avenues described above,

Rydbom wrote to Steve & Sherri Saines in January 2015, asking

for help in obtaining the National Academy of Science report

on memory & eyewitness identification

by either double

checking the addresses that Rydbom wrote to or by searching

the Internet.

Steve & Sherri Saines found the NAS report on memory &

eyewitness identification on the Internet, downloaded and

printed the report, and mailed, it to Rydbom in loose-leaf

form.

Rydbom received from prison officials at West

Virginia's Mount Olive Correctional Complex two MAIL REFUSAL

forms (2/4/15) regarding:

catalog(s); and

book(s), newspaper(s), or magazine(s) not received

directly from the publisher "COPIES NOT ALLOWED"

received from Steven Saines, and costing $1.89 to

mail out.

On 13 February 2Q15, Rydbom asked prison officials for

more information in order to have a reasonable opportunity to

protest (or accept) the prison's censorship of mail from

Steve Saines.

Specifically, Rydbom asked:

a. Do these two mail refusal forms pertain to two

separate mailings from Steven Saines? Or are they

two separate items in the same mailing?

Exactly how many catalogs and exactly what catalogs

are they (title, company, season)?

Exactly what book(s), newspaper(s), or magazine(s)

was/were photocopied (assuming this is what

happened) (title, publisher, etc.)?

How many pages were copied? One? Ten? One

chapter, the entire book?

How many pages does/do the book(s), newspaper(s), or

magazine(s) consist of?

Prison official Lisa Boggs returned Rydbom's request

with a note saying: "Both refusal stand as written. I have

reviewed both refusals both items are against policy. If no

action both refusals will be disposed of as per policy."

West Virginia Division of Corrections Policy Directive

503.03 says catalogs shall not be considered permissible

publications and, therefore, shall not be permitted to be

received by inmates.

Earlier, in June 2003, attorney William Summers mailed

Rydbom a letter, with 3 photocopied pages of an office-supply

catalog, asking what kind of folders Rydbom was allowed to

have. Prison officials at he Mt. Olive Correctional Complex

(MOCC) permanently seized the photocopied pages.

After exhausting the prison grievance process, Rydbom

filed a civil rights complaint under 42 U.S.C. §1983 alleging

that the prison officials dishonestly and inaccurately

labeled the NAS report (or portion thereof since the postage

was only $1.89) as a banned copy of a book, newspaper,

magazine. Rydbom complained that the prison officials

violated Rydbom's Freedom of Speech and Due Process rights.

Rydbom sought declaratory, injunctive, and monetary relief.

The prison officials filed a motion to dismiss for

failure to state a claim, under Rule 12(b) (6) of the Federal

Rules of Civil Procedure, and memorandum in support thereof.

In their motion to dismiss, counsel for the prison officials

never discussed the NAS report mailed to Rydbom.

After receiving Rydbom's response, the U.S. Magistrate

Judge submitted a Proposed Findings and Recommendation

recommending that the District Judge grant the prison

officials' motion to dismiss for failure to state a claim.

The Magistrate Judge's Proposed Findings and

Recommendation said (1) that the NAS report "clearly" appears

to fall into the category of publications under Policy

Directive 503.03 that are required to be sent by the

publisher or retailer, (2) that Rydbom has alternative means

of obtaining the NAS report within the reasonable parameters

of the Policy Directive, and (3) Rydbom had no First

Amendment right to receive commercial speech.

The Magistrate Judge's Proposed Findings and

Recommendation also said that an inmate is entitled to only

minimal due process protections, including: (a) notification

that mail has been withheld; (b) a reasonable opportunity to

protest the decision; and

(C)

referring the prisoner's

complaint to a prison official other than the one who made

the decision to withhold the mail (citations omitted).

Rydbom made several objections to the Magistrate

Judge's Proposed Findings and Recommendation.

For example,

in Objection #2, Rydbom complained that, without a meaningful

statement of what exactly was censored and the reasons for

the censorship, it cannot be honestly said that the prisoner

is being deprived of property (mail) in accordance with due

process of law.

Rydbom also complained that the NAS report, downloaded

from the internet and mailed to Rydbom does not violate

Policy Directive 503.03. The NAS report, and Policy

Directive 503.03 were not made part of the record. And

Policy Directive 503.03 makes absolutely no mention of looseleaf documents printed from the internet.

Rydbom's objection also cited federal case law striking

down bans on prisoners receiving newspaper clippings,

catalogs, and information downloaded from the internet.

In Rydbom's objection #3, Rydbom complained that the

Magistrate Judge apparently did outside research of his own,

deciding that the NAS report is available as a 170-page book.

The Magistrate Judge's omissions are telling: The

Magistrate Judge left out the address for the book, left out

the price of the book, left out Rydbom's poverty status, and

left out Rydbom's various unsuccessful efforts to find the

'groundbreaking' report.

Even more importantly, Rydbom also expressed his

serious doubt as to whether the "170-pae book" that the

Magistrate Judge relied on in July 2017 was available in book

form in February 2015 (21 years earlier) when Steve and

Sherri Saines mailed the internet document to Rydbom.

In Rydbom's Objection numbers 4 and 5, Rydbom

maintained that he had a right to assert commercial speech

rights and that the catalog ban under Policy Directive 503.03

was over broad.

In Rydbom's Objection #7, Rydbom complained that the

prison officials' mail refusal form was so ridiculously vague

that it could equally apply to copies of unnamed newspaper

articles. Rydbom said that prison officials refused to

provide any description, any title, any author, or any other

information that would give a one a meaningful idea of what

is being censored. And, Rydbom argued that, allowing

officials to be so vague as in this case is not due process

of law; it's bad precedent.

The District Judge, in accordance with the Magistrate

Judge's Proposed Findings and Recommendations, dismissed

Rydbom's civil rights complaint.

After Rydbom's Motion to Alter or Amend the Judgment

Order was denied, Rydbom appealed to the Fourth Circuit Court

of Appeals.

Rydbom's appeal had five parts:

Nobody offered any explanation as to how/why

stopping Rydbom from receiving the NAS report,

printed from the internet and mailed to Rydbom, was

reasonably related to legitimate penological

interests;

The District Court's claim that the NAS report was

available in book form in July 2017 does not prove

whether the internet material was available in book

form when mailed to Rydbom in February 2015;

The prison's catalog ban under Policy Directive

503.03 (which was never made part of the record) was

overly broad and subject to the arbitrary whims of

prison officials;

Contrary to the Magistrate Judge's allegation,

banning information downloaded from the internet was

not based upon prison policy.

The District Court wrongly decided that Rydbom was

not entitled to a meaningful reason for censorship.

By unpublished per curiam opinion, the Fourth Circuit

Court of Appeals affirmed the District Court's dismissal of

Rydboms complaint. And, Rydbom's petition for rehearing was

denied on 23 January 2019. Rydbom now makes one last appeal

for due process of law and free speech.

REASONS FOR GRANTING THE PETITION

SUMMARY OF ARGUMENT

The W.Va . -D.O.C. catalog ban is over broad and

excessive.

• Prison officials refused to deliver to Rydbom an

Edward R. Hamilton discount book catalog which was

mailed to Rydbom via first-class mail by Steve and

Sherri Saines.

W.Va.-D.O.C. Policy Directive 503.03 prohibits

prisoners from receiving catalogs.

• There is a conflict between the catalog ban and

federal case law.

• The circumstances in Rydbom's case are different

than when the catalog ban was last upheld in 2002.

• The prison commissary no longer provides

• catalogs.

• Any catalog distribution by prison officials is

subject to arbitrary whims of prison staff.

• Rydbom ' s catalog was mailed to Rydbom via firstclass mail.

• Rydbom asserted commercial speech rights.

•

The catalog ban has been used to remove three

pages from Rydbom ' s legal mail from Rydborn's

lawyer.

• If Rydbom's case was allowed to go forward, he

would offer proof that prison officials remove

catalog inserts from paid magazine subscriptions.

• An Edward R. Hamilton discount book catalog is First

Amendment commercial reading material.

• Instead of banning catalogs, prison officials should

be required to give some valid penological

justification for denying prisoners particular

catalogs.

The W.Va.-D.O.C. internet ban is over broad and

excessive.

• Prison officials seized Rydbom's mail consisting of

a National-Academy of Science report regarding

eyewitness testimony (or a portion thereof) which

• was downloaded and printed from the internet before

being mailed to Rydbom.

• Prison officials incorrectly described the internet

document as a copy of books, newspapers, or

magazines.

• Prison officials' description of the seized mail was

so vague it could equally apply to a photocopy of a

newspaper article.

• Prison officials refused Rydbom's request for more

information regarding what the seized mail consisted

of (e.g. title, number of pages).

• Prisoners should receive enough honest and accurate

information explaining the censorship of their mail

so that prisoners may knowingly and intelligently

decide whether to accept or dispute the censorship

of their mail.

• The prison officials and lower courts refused to

explain how refusing to deliver the internet

document to Rydbom is reasonably related to

legitimate penological objectives.

• The District Court decided on its own, 24 years

after Rydbom initiated his suit, that the internet

document could be purchased as a 170-page book.

• The District Court disregarded the fact that Rydbom

tried numerous efforts to find the NAS report before

Rydbom's friends eventually downloaded it from the

internet and mailed it to Rydbom.

• The District Court decided on its own that the

internet document was banned by Policy Directive

503.03.

• Policy Directive 503.03 wasn't even put into the

record.

• Policy Directive 503.03 says nothing whatsoever

against prisoners receiving documents from the

internet.

Even if the internet document was banned by

prison policy, such a ban would be over broad and

excessive.

• The internet ban conflicts with other federal

case law.

ARGUMENT

Prisoners have a First Amendment right to receive

reading material, including commercial speech, subject to the

"reasonableness" standard of Turner v. Saf.Ley, 482 U.S. 78

(1987)

CATALOGS

Rydbom's complaint alleged that Policy Directive 503.03

for the W.Va. Division of Corrections said that catalogs

shall not be considered permissible publications and,

therefore, shall not be permitted to be received by inmates.

The W.Va.-DOC catalog ban was litigated previously in

Dixon v. Kirby, 210 F. Supp. 2d 792, 299-801 (S.D.W.Va.

2002), aff'd, 48 Fed. Appx. 93 (4th Cir. 2002) (unpublished)

(upholding catalog ban, imposed to avoid overwhelming volume

of mail, and where the prison made selected catalogs

available in the commissary).

Dixon v. Kirby should not control in Rydbom's case.

First of all, the catalog ban is over broad and excessive.

Secondly, the facts in Rydbom's case are.different than those

of Dixon.

The catalog ban is excessive and over-broad. Rydbom's

complaint gave an example where prison officials censored

Rydbom's legal mail by confiscating three (3) photocopied

pages of an office supply catalog (citing their catalog ban)

when all Rydbom's attorney was trying to do was ask Rydbom

what kind of folders Rydbom was allowed. Prison officials

denied Rydbom's grievance under this exact same catalog ban.

Just how seizing/censoring Rydbom's legal mail from his

lawyer was supposed to help prison officials avoid an

overwhelming volume of mail, or promote rehabilitation, or

improve security, is a complete mystery to Rydbom.

If Rydbom was ever allowed a chance to prove the

factual allegations in his complaint, he would also offer

other evidence showing the excessive nature of the W.Va.D.O.C. catalog ban.

For example, Rydbom would offer proof that a fellow

prisoner, David Watson, has a subscription to a chess

magazine. Sometimes, the chess magazine has a small catalog

insert affixed in the middle. In most instances, prison

officials take the time to forcibly remove the little chess

catalog affixed to the middle of the chess periodicals.

That's labor saving?

The facts in Dixon also simply do not apply in Rydbom's

case. For example, Rydbom's complaint specifically alleged

that the prison commissary (now run by a for-profit

corporation), in fact, does not make catalogs available to

the prison population; unlike in the Dixon case.

Rydbom further complained that the haphazard practice

of distributing book catalogs to prisoners' housing units is

hit-or-miss, subject to the arbitrary whims of prison staff.

Rydbom's complaint pointed out that, because Rydbom

never received the book catalogs which Steve and Sherri

Saines previously ordered for him, they placed a book catalog

into an envelope and mailed it directly to Rydbom using first

class postage. That is the "catalog" which prison officials

gave Rydbom a "mail refusal'! form for.

Also unlike in Dixon, Rydbom's complaint asserted the

right to receive commercial speech, and cited federal case

law agreeing with Rydbom's position. See for example,

Virginia State Board of Pharmacy v. Virginia Consumer

Council, 425 U.S. 748, 756, 762-765 (1976); Prison Legal News

v. Lehman, 397 F.3d 692, 699-700 (9th Cir. 2005) (striking

down rule prohibiting receipt of non-subscription bulk mail

and catalogs); Allen v. Higgins, 902 F.2d 682, 684 (8th Cir.

1990) (finding denial of a catalog unconstitutional where

prison official made the decision without examining the

catalog, which did not present a security threat).

In Hughbanks v. Dooley, 2012 U.S. Dist. LEXIS 12479

(D.S.D. 2 Feb 2012), the court recognized a circuit split

regarding prisoners' right to receive catalogs and,

particular to Hughbanks, "bulk-rate mail." The Hughbanks

court assumed without deciding that prisoners have a First

Amendment right to receive bulk-rate mail. However, the

court granted summary judgment to the prison officials after

engaging in Turner's "reasonableness" analysis.

Rydbom

is not trying to have bulk-rate mail delivered

to individual prisoners. In Marietta College in the mid15

1990s, a school of about 1,400 students, boxes of catalogs

would be placed in a common room across from the mailroom

where students could access them if they wanted.

However, while the two different institutions share the

same goal of avoiding overwhelming extraneous work, the

practice at Marietta College isn't really appropriate in a

maximum security prison setting.

With this in mind, though, surely the prison system can

engage in some type of de minimis accommodation of prisoners'

First Amendment right to receive commercial speech. West

Virginia can start by (a) no longer censoring legal mail

containing three photocopied pages of an office supply

catalog, (b) no longer removing little catalogs affixed to

the middle of chess magazines, (c) allowing catalogs to be

delivered via first-class mail, and (d) distributing a

handful of catalogs (since a couple are bound to be stolen)

to various housing units. All of these ideas, of course,

would still be subject to reasonable content-based

restrictions (like banning locksmith catalogs)

To sum it up: West Virginia's total catalog ban, as

written and as implemented, is excessive and over broad. The

Lehman and Allen v. Higgins decisions are correct.

"Commercial speech" enjoys some degree of First Amendment

protection, and that right may be asserted by those who wish

to receive commercial information.

An Edward R. Hamilton discount book catalog, like the

one mailed to Rydbom, poses no risk to the prison's

legitimate concerns. Neither do three photocopied pages of

an office supply catalog showing folders for keeping legal

papers organized.

Prison officials can forbid prisoners from ordering

merchandise from catalogs (e.g. Abercrombie & Fitch, Demco),

and from magazines and newspapers, but that is no reason to

stop prisoners from reading about it.

Rydbom's complaint regarding the catalog ban did, in

fact, state a claim for which relief could be granted.

INTERNET DOCUMENTS

Prison officials also withheld a National Academy of

Science report regarding human memory and eyewitness

identification downloaded and printed from the internet.

As stated in Rydbom's complaint, prison officials

incorrectly described the internet document as, "book(s),

newspaper(s), or magazines(s) not received directly from the

publisher 'COPIES NOT ALLOWED,'" received from Steven Saines,

and costing $1.89 to mail out. Officials also refused to

answer Rydbom's request for more information (e.g. title,

number of pages) about the seized item.

The prison officials, and the lower courts, would not

explain how withholding Rydbom's mail was reasonably related

to legitimate penological objectives. In fact, counsel for

the prison officials didn't even discuss this particular

piece of withheld mail in their motion to dismiss.

Instead, the District Court decided on its own that the

National Academy of Science report was banned by Policy

Directive 503.03. For the reader's information, the District

Court's conclusion was false. Policy Directive 503.03 was

not even put into the record. Policy Directive 503.03 is

mentioned by the parties only in pieces. And, nowhere in

Policy Directive 503.03 is material downloaded and printed

from the internet banned.

However, Rydboni is desperate for this Court to accept

this petition. So, assuming arguendo that Policy Directive

503.03 did ban internet documents, such a ban is still

excessive and over broad, and violative of the First

Amendment

especially here in the twenty-first century.

Rydbom informed the District Court that other federal

courts have struck down bans on prisoners receiving

information downloaded from the internet. See, for example,

Clement v. California Dep't of Corrections, 364 F.3d 1148

(9th Cir. 2004) (per curiam); accord, West v. Frank, 2005 WL

701703 (W.D.Wisc., 25 Mar 2005).

Prison officials should also have to honestly and

accurately describe the mail being withheld. This would

allow the prisoner to make a knowing and intelligent decision

whether to accept or dispute such withholding. It would also

head off a factual dispute about what was actually withheld.

In dismissing Rydbom's complaint for failure to state a

claim, the District Court. claimed, on its own, that the

iL']

National Academy of Science report could be purchased as a

170-page book from National Academies Press. Therefore,

Rydbom supposedly had a ready alternative to obtaining the

document from the internet.

Of interest to Rydbom here is exactly 'when' the NAS

report became available in book form. Ryd.bom's mail was

withheld in February 2015. The Magistrate Judge offered the

limited results of his outside investigation in July 2017, 24

years later

after Rydbom exhausted his prison grievance

procedure and committed himself to hundreds of dollars in

filing fees (which will take years to pay off) and the

headache of a civil rights complaint. And how is it that a

court can use incomplete post hoc facts, without cross

examination, to justify prison officials' behavior 24 years

earlier?

The fact is that Rydbom's complaint detailed how Rydbom

went from October 2014 to January 2015 trying to find other

avenues of finding the NAS report before finally asking Steve

and Sherri Saines for help.

Rydbom first wrote to the National Academy of Science

on 22 October 2014, with no response.

Rydbom next asked the W.Va. State Law Library on 14

November 2014, and received no help.

Rydbom also wrote to University of Virginia pr9fessor

Brandon Garrett on 19 November 2014, the day after professor

Garret discussed the NAS report on National Public Radio.

This was returned to sender.

Rydbom then wrote to Barry Scheck on 04 December 2014,

who first wrote about the NAS report in the 03 October 2014

USA Today. This too was returned to sender.

So much for a ready alternative being available to

Rydbom back when it mattered.

Finally, in January 2015, Rydbom wrote to Steve and

Sherri Saines for help in finding the NAS report. Sherri

Saines happens to be a reference librarian at Ohio

University. Steve and Sherri Saines apparently found this

NAS report on the internet, printed it from the internet, and

mailed in loose-leaf form to Rydbom. The security concerns

for bound material aren't even the same for loose pages.

It's possible that a only portion of the NAS report was

mailed to Rydbom since it costs only $1.89 postage to mail

back out. This was about half the costof mailing Rydbom's

civil rights complaint. And, it was far less than the

postage required for an entire 170-page book referred to by

the Magistrate Judge Rydbom doesn't know for sure, though,

because prison officials refused Rydbom's request for more

information (e.g. number of pages) about the seized mail.

Rydbom's complaint regarding prison officials

prohibiting Rydbom from receiving a National Academy of

Science report on human memory and eyewitness identification,

downloaded and printed from the internet does, in fact, state

a claim for which relief could be granted.

CONCLUSION

The petition for writ of certiorari should be granted

Respectfully submitted,

Date: /8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.