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Case Name Evans v. Vare PC-NV-0014
Docket / Court 3:05-cv-00327-ECR-RAM ( D. Nev. )
State/Territory Nevada
Case Type(s) Prison Conditions
Case Summary
An amended complaint was filed on March 22, 2006, in the U.S. District Court for the District of Nevada by private counsel on behalf of two plaintiffs who also claimed to be friends, one an attorney and the other a Nevada state prisoner. The initial complaint had been filed on June 2, 2005, and ... read more >
An amended complaint was filed on March 22, 2006, in the U.S. District Court for the District of Nevada by private counsel on behalf of two plaintiffs who also claimed to be friends, one an attorney and the other a Nevada state prisoner. The initial complaint had been filed on June 2, 2005, and initially amended on June 15, 2005.

The amended complaint stated that officials of the Nevada Department of Corrections (NDOC) violated the plaintiffs' First, Fourth, and Fourteenth Amendment rights by interfering with the prisoner's efforts, via mail, to provide paralegal/law clerk-type assistance, both for free and for pay, to the attorney. The marked legal mail that the defendants allegedly refused to forward from the attorney-plaintiff to the prisoner-plaintiff related to cases other than the prisoner's own cases and, sometimes, contained public record-type court documents that the prisoner had ordered from court clerks, according to the amended complaint.

Plaintiffs sought declaratory and injunctive relief, as well as nominal, compensatory, and punitive damages, filing their case pursuant to 42 U.S.C § 1983. The defendants were said to have censored and refused to deliver marked legal mail without providing due process or an adequate review procedure and, similarly, denied without due process or sufficient review the prisoner's right to conduct a paralegal/law clerk business from prison. Plaintiffs claimed that other similarly-situated prisoners had been allowed to conduct businesses from prison. In addition to denial of due process and equal protection rights, plaintiffs complained that the defendants' conduct impinged upon rights to privileged attorney-client communications, to free speech, to free association, to petition the government for redress of grievances, and to be free from unreasonable searches and seizures. Prison officials were also said to have violated these same rights by retaliation, via imposing restrictions on the prisoner's activities and inhibiting his work on civil rights cases other than his own personal legal matters.

On November 18, 2005, District Judge Edward C. Reed granted a preliminary injunction against the defendants, enjoining the prison officials from restricting non-legal correspondence between the plaintiffs but allowing, for security reasons, the officials' required redaction from the plaintiffs' correspondence of some information personally identifying others. Evans v. Vare, 402 F.Supp.2d 1188 (D. Nev. 2005).

The plaintiffs and the prison officials cross-appealed to the U.S. Court of Appeals for the Ninth Circuit. That court's unpublished October 13, 2006, memorandum decision partially affirmed and partially reversed the district judge's ruling. The appellate court noted that not all correspondence between an attorney and a client is necessarily privileged or presumed confidential. While the defendants argued that the prisoner was restricted from engaging in a business relationship as a paralegal by state statute, the court observed that the defendants had not shown in the district court that the prisoner was engaged in such a business activity, as opposed to corresponding about a common interest or hobby. Still, as long as restrictions on a prisoner's First Amendment rights reasonably serve a legitimate penal interest, the officials could impose such restrictions. Thus, the Ninth Circuit panel felt that the preliminary injunction was not too restrictive of the plaintiffs' freedoms. Privacy and security concerns warranted allowing the defendants to examine mail between the two plaintiffs and requiring the attorney, with respect to documents that have not been published, to redact from those documents personal identifying information about other persons. The case was remanded to the district court.

There, Judge Reed modified his earlier injunction on December 29, 2006, in view of the appellate ruling. His unpublished modified order allowed prison employees to examine mail from the attorney to the prisoner, but barred denying receipt or forwarding of their mail which either (1) consisted of regularly-published court decisions law or regulations, or (2) was other legal correspondence than described in (1), above, and had the names, social security numbers, addresses and other identifying information of other persons blacked out.

Discovery proceedings ensued over the next several months in the district court, as reflected by the PACER docket sheet. The last entry we have on that docket sheet is on May, 21, 2007, and indicates that discovery was due by September 26, 2007, with pretrial motions due a month later. We have no further information about the case.

There was a settlement conference on January 25, 2008, during which each party agreed to pay their own attorney's fees and costs.

On April 11, 2009, the court ordered a permanent injunction prohibiting defendants from denying plaintiffs the receipt or forwarding of mail involving legal matters, when either of two conditions are met: (1) The mail consists of regularly published court decisions, laws or regulations or (2) Where to mail does not consist of regularly published court decisions, laws or regulations, Plaintiff's correspondence regarding legal matters shall not be interfered with if the names, social security numbers, addresses, and other identifying information of other persons are blacked out.

Mike Fagan - 04/30/2008
Christina Bonanni - 11/09/2013


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Issues and Causes of Action
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Issues
Content of Injunction
Preliminary relief granted
Defendant-type
Corrections
General
Mail
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Defendant(s) Nevada Department of Corrections
Plaintiff Description prisoner confined by NDOC at the Lovelock Correction Center; Evans and an attorney who has professional and personal association with prisoner
Indexed Lawyer Organizations None on record
Class action status sought No
Class action status granted No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement None on record
Order Duration 2008 - n/a
Case Closing Year 2012
Case Ongoing No
Additional Resources
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Case Studies Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
By: Margo Schlanger (Washington University)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
3:05-cv-00327-ECR-RAM (D. Nev.) 01/03/2012
PC-NV-0014-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Order [Re: Motion for Preliminary Injunction] 11/18/2005 (402 F.Supp.2d 1188) (D. Nev.)
PC-NV-0014-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Second Amended Complaint 03/22/2006
PC-NV-0014-0001.pdf | Detail
Memorandum 10/13/2006 (203 Fed.Appx. 95)
PC-NV-0014-0005.pdf | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Second Amended Preliminary Injunction 12/29/2006 (D. Nev.)
PC-NV-0014-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Permanent Injunction 04/11/2008 (D. Nev.)
PC-NV-0014-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Graber, Susan (Ninth Circuit)
PC-NV-0014-0005
Holland, Hezekiah Russel (D. Alaska)
PC-NV-0014-0005
McQuaid, Robert A. Jr. (D. Nev.) [Magistrate]
PC-NV-0014-0004
Reed, Edward Cornelius Jr. (D. Nev.)
PC-NV-0014-0002 | PC-NV-0014-0003
Schroeder, Mary Murphy (Ninth Circuit)
PC-NV-0014-0005
Monitors/Masters None on record
Plaintiff's Lawyers Evans, Donald Y. (Nevada)
PC-NV-0014-9000
Hager, Robert R (Nevada)
PC-NV-0014-0001 | PC-NV-0014-0003 | PC-NV-0014-0005 | PC-NV-0014-9000
Hearne, Treva J (Nevada)
PC-NV-0014-9000
Picker, Marc P (Nevada)
PC-NV-0014-9000
Defendant's Lawyers Stewart, Susan K (Nevada)
PC-NV-0014-9000
Werth, Kelly S (Nevada)
PC-NV-0014-0005 | PC-NV-0014-9000
Wong, Daniel (Nevada)
PC-NV-0014-0003 | PC-NV-0014-9000
Other Lawyers None on record

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