Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
7-11-1995
Bieregu v Reno Precedential or Non-Precedential:
Docket 94-5719
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation "Bieregu v Reno" (1995). 1995 Decisions. Paper 184. http://digitalcommons.law.villanova.edu/thirdcircuit_1995/184
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 94-5719
POLYNS BIEREGU, Appellant, v.
JANET RENO; L. YEARBY; G. BERMAN, All Employees of Mail Room Staffs.
Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 94-2775)
Submitted Under Third Circuit LAR 34.1(a) May 2, 1995
BEFORE: MANSMANN, SCIRICA, and SAROKIN, Circuit Judges
(Filed July 11, 1995)
OPINION OF THE COURT
Polyns Bieregu, #15267-050 HCR-Unit Fairton FCI P.O. Box 420 Fairton, NJ 08320
Appellant pro se
Faith S. Hochberg United States Attorney Paul A. Blaine Assistant United States Attorney Mitchell H. Cohen Courthouse 4th & Cooper Streets P.O. Box 1427 Camden, NJ 08101
Attorneys for appellees
SAROKIN, Circuit Judge:
A prisoner brought this action pro se against prison
officials, alleging that by repeatedly opening properly marked
incoming legal mail outside of his presence, those officials had
violated his constitutional rights.1 Holding that defendants
enjoyed qualified immunity because the law in this area was
unsettled in our circuit, the district court granted summary
judgment in favor of the officials. Plaintiff appeals.
I.
The district court had jurisdiction pursuant to 28 U.S.C.
§1331. Plaintiff filed a timely notice of appeal, and we have
jurisdiction pursuant to 28 U.S.C. §1291.
1Plaintiff also named Attorney General Janet Reno as a defendant and alleged two state law negligence claims against all defendants. On appeal, he mentions the dismissal of neither the state law claims nor the federal claims as to Attorney General Reno, and hence we need not reach these issues. We note in any event that (a) the district court held that tort claims against federal employees may arise only under the Federal Tort Claims Act, 28 U.S.C. §1346; and (b) to be liable for a constitutional violation a defendant must have some causal connection to the wrongdoing. Mark v. Borough of Hatboro, ___ F.3d ___, 1995 WL 138433, at *18 and n.13 (3d Cir. 1995); Rizzo v. Goode, 423 U.S. 362, 377 (1976). Plaintiff has offered no evidence that the Attorney General in any way caused, consented to, or tacitly approved the conduct of the prison officials herein. Plaintiff Polyns Bieregu is incarcerated at the federal
prison in Fairton, New Jersey. He alleges that on numerous
occasions and outside his presence, prison mailroom employees
opened and read mail addressed to him from federal judges, in
violation of the Constitution, federal regulations, and internal
Bureau of Prisons ("BOP") guidelines.
The federal regulatory framework for handling prisoner mail
is straightforward. The regulations distinguish between incoming
"general mail," which the Warden must open and inspect and may
read, and incoming "special mail," which the Warden may open
"only in the presence of the inmate for inspection for physical
contraband and the qualification of any enclosures as special
mail." 28 C.F.R. §§540.14(a), 540.18(a).2 Special mail includes
incoming mail from federal and state courts. §540.2(c). In
order to receive the special handling, incoming special mail must
be marked "Special Mail - Open only in the presence of the
inmate" and have a clearly identified sender. §§540.2(c),
540.18(a). According to a BOP Policy Statement, however, mail
"from the chambers of a federal judge . . . should be given
special handling," even when it lacks the precise marking.
Federal Bureau of Prisons, Program Statement No. 5265.08 (October
1, 1985), §13(a). For convenience, we will refer to
correspondence between an inmate and attorney as "attorney mail"
and to correspondence between an inmate and a state or federal
2 Unless otherwise noted, all subsequent references to federal regulations are to 28 C.F.R. judge, clerk's office, or other courthouse address as "court
mail." We use the phrase "legal mail" as a general term
including both attorney and court mail.
Plaintiff does not attack the general BOP scheme for
handling mail, nor the specific authority of BOP employees to
open incoming legal mail in his presence. Rather, plaintiff
contends that in repeatedly opening court mail outside his
presence, the mailroom employees violated his rights to
"confidential and uncensored commications" [sic] and to "access
to the court" under the First, Fourth, Sixth, and Fourteenth
Amendments. As approved in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff sues
directly under the Constitution.
In response to defendants' motion for summary judgment,
plaintiff supplied evidence that five pieces of mail from federal
judges were opened outside his presence within a three month
period. The mail concerned civil proceedings to which plaintiff
was a party. Plaintiff alleges further that on another occasion,
the mailroom employees opened and damaged a scheduling order in a
civil forfeiture proceeding. Bieregu claims that because the
order was damaged, he failed to file a timely brief and his
appeal was dismissed.
An internal review by the prison determined that on at least
three of the five alleged occasions, mailroom employees did open
plaintiff's properly marked legal mail outside his presence. The
employees claim they did not read the mail and submitted
affidavits denying they had opened it intentionally. The district court concluded "we cannot say that a
reasonable trier of fact would be compelled to find that
defendants' actions were the result of mere negligence." Bieregu
v. Reno, No. 94-2775, slip op. (D.N.J. Nov. 4, 1994), at 5. It
went on to conclude that "a policy or practice of opening
properly identified legal mail outside the presence of the
inmate" is a constitutional violation. Id. at 9. Nevertheless,
the court determined that because the law in this circuit is not
clearly established as to whether such conduct rises to the level
of a constitutional violation, the officials were entitled to
qualified immunity.
Our review of a district court's grant of summary judgment
is plenary. In re City of Philadelphia Litigation, ___ F.3d ___,
1995 WL 88161, *15 (3d Cir. 1995). We consider whether there are
genuine issues as to material facts and whether defendants are
entitled to judgment as a matter of law. Id.; Fed.R.Civ.P.
56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.
1987). In so determining, we will resolve all reasonable doubts
and draw all reasonable inferences in favor of the nonmoving
party. Meyer v. Riegel Products Corp., 720 F.2d 303, 307, n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984).
II.
By definition a sentence of imprisonment involves a loss of
one's liberty, and by necessity a substantial loss of one's
privacy. Yet confinement does not result in the forfeiture of all constitutional rights. Indeed, the closing of the prison
gates upon an inmate is punishment enough in most instances, and
any attempt to isolate inmates completely from the outside world
might not only violate their constitutional rights, but would
disserve the interests of a society hoping to release prisoners
to become law-abiding citizens. Thus the Supreme Court has
reminded us that "[p]rison walls do not form a barrier separating
prison inmates from the protections of the Constitution." Turner
v. Safley, 482 U.S. 78, 84 (1987). See also Wolff v. McDonnell,
418 U.S. 539, 555-56 (1974) ("There is no iron curtain drawn
between the Constitution and the prisons of this country"). Nor
do those walls "bar free citizens from exercising their own
constitutional rights by reaching out to those on the 'inside.'"
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
Accordingly, the Supreme Court has recognized that persons
convicted of serious crimes and confined to penal institutions
retain the right to petition the government for the redress of
grievances, Johnson v. Avery, 393 U.S. 483 (1969); the right to
be free from racial segregation, Lee v. Washington, 390 U.S. 333
(1968); the right to due process, Wolff, supra; the right of free speech, Abbott, 490 U.S. at 410, n.9; the right of meaningful
access to the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977);
and the right to exercise substantial religious freedom, Cruz v.
Beto, 405 U.S. 319 (1972); O'Lone v. Estate of Shabazz, 482 U.S.
342, 348 (1987).
The Court has also recognized, however, that the rights of
prisoners "must be exercised with due regard for the 'inordinately difficult undertaking' that is modern prison
administration." Abbott, 490 U.S. at 407 (quoting Turner, 482
U.S. at 85). Prison officials must weigh the need for internal
order and security against the rights of prisoners, as well as
the constitutional rights afforded "those on the 'outside' who
seek to enter that environment, in person or through the written
word." Abbott, 490 U.S. at 407.
Courts have been called upon to review the balance struck by
prison officials between the penal institution's need to maintain
security within its walls and the rights of prisoners and non-
prisoners. As former Chief Judge Higginbotham has written for
our court, "'courts have learned from repeated investigation and
bitter experience that judicial intervention is indispensable if
constitutional dictates--not to mention considerations of basic
humanity--are to be observed in the prisons.'" Peterkin v.
Jeffes, 855 F.2d 1021, 1033 (3d Cir. 1988) (quoting Rhodes v.
Chapman, 452 U.S. 337, 354 (1981) (Brennan, J. concurring)).
Against this background we turn to the conduct of defendants
regarding plaintiff's incoming court mail.
III.
The district court granted summary judgment on the grounds
that defendants enjoyed qualified immunity, but before reaching
this issue we must first determine whether plaintiff has alleged
a constitutional violation. In re City of Philadelphia, ___ F.3d at ___, 1995 WL 88161, at *15; Siegert v. Gilley, 500 U.S. 226, 231 (1991). This analysis involves two steps: determining (1) whether any of plaintiff's constitutional rights are infringed by
the conduct alleged herein; and if so, (2) whether that
infringement rises to the level of a constitutional violation,
given the specialized standard of review applied to prison
regulations and practices.
A number of courts of appeals have determined that opening
properly marked incoming attorney or court mail outside a
prisoner's presence, or reading such mail, infringes the
Constitution. Though finding a constitutional violation, the
Seventh, Eighth, and Eleventh Circuits identified no right in
particular. See Castillo v. Cook County Mail Room Department,
990 F.2d 304, 307 (7th Cir. 1993) (per curiam) (allegation that
prison officials opened three pieces of incoming court mail
outside inmate's presence states "colorable claim" of
constitutional violation); Lemon v. Dugger, 931 F.2d 1465, 1468
(11th Cir. 1991) (prison official violated prisoner's
"constitutional right not to have his mail read" where one piece
of incoming attorney mail opened and read in inmate's presence);
Jensen v. Klecker, 648 F.2d 1179, 1182-83 (8th Cir. 1981)
(allegations that prison officials had deliberately and
repeatedly opened incoming and outgoing attorney mail outside
prisoner's presence sufficient to defeat officials' motion for
summary judgment). The Sixth and Tenth Circuits looked to the
First Amendment. See Lavado v. Keohane, 992 F.2d 601, 609-10 (6th Cir. 1993) ("opening/reading" incoming court mail outside
prisoner's presence in arbitrary or capricious fashion violates
First Amendment); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980) (opening outgoing court and attorney mail outside presence
of inmate violates the First Amendment), cert. denied, 450 U.S.
1041 (1981). The Second Circuit also relied on the First
Amendment, but on the Petition Clause in particular. See
Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986)
(allegation that prison officials repeatedly opened outgoing
attorney mail states claim for violation of rights to petition
and to correspond with legal counsel). The Fifth Circuit relied
on a constitutional right of access to the courts, arising under
the Due Process Clause. See Taylor v. Sterrett, 532 F.2d 462,
475 (5th Cir. 1976) (prisoner's right of access "requir[es] that
incoming prisoner mail from courts . . . be opened only in the
presence of the inmate"). Taylor, however, may no longer be good
law in the Fifth Circuit. See Brewer v. Wilkinson, 3 F.3d 816,
825 (5th Cir. 1993) (opening incoming attorney or court mail
outside inmate's presence does not violate prisoner's rights to
free speech or court access), cert. denied, ___ U.S. ___, 114
S.Ct. 1081 (1994); Walker v. Navarro County Jail, 4 F.3d 410, 413
(5th Cir. 1993). Lastly, in the Ninth Circuit, Judge Reinhardt
has argued in dissent that the right to privacy was at stake.
Stevenson v. Koskey, 877 F.2d 1435, 1443 (9th Cir. 1989)
(Reinhardt, J., dissenting) ("reading legal mail is a violation
of the prisoner's privacy rights").
Similarly, district courts in our circuit, like the one
herein, have concluded that to read legal mail or to open it
outside a prisoner's presence violates the Constitution, though
they too have not agreed as to the constitutional rights at issue. See Jordan v. Fauver, ___ F.Supp. ___, 1995 WL 139274, at
*4-5 (reading legal mail in presence of inmate violates his right
to court access) (D.N.J. 1995); Proudfoot v. Williams, 803
F.Supp. 1048, 1052 (E.D.Pa. 1992) (opening and scanning outgoing
attorney and court mail in presence of prisoner violates inmate's
rights to petition, counsel, and court access); Thornley v.
Edwards, 671 F.Supp. 339, 342 (M.D.Pa. 1987) (opening incoming
court mail outside presence of inmate violates his rights to
counsel and court access), mot. denied, summ. judg. granted, 1988
WL 188333 (M.D.Pa. 1988); Carty v. Fenton, 440 F.Supp. 1161,
1162-63 (M.D.Pa. 1977) (opening incoming court mail outside
inmate's presence violates his right to court access).
Only once have we confronted the question of whether opening
and reading an inmate's legal mail violates the Constitution.
See Allen v. Aytch, 535 F.2d 817 (3d Cir. 1976). We did not
reach the issue, however, relying instead on Justice Brandeis's
concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S.
288 (1936) to remand for consideration of a non-constitutional
argument not raised in the district court. Allen, 535 F.2d at
823. A. Freedom of speech
As Justice Holmes recognized years ago, "[t]he United States
may give up the Post Office when it sees fit, but while it
carries it on the use of the mails is almost as much a part of
free speech as the right to use our tongues." United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255
U.S. 407, 437 (1921) (Holmes, J., dissenting). Thus the Supreme Court has generally treated interference with the mail as
implicating the First Amendment right to free speech. See Bolger
v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 & n.18 (1983);
Blount v. Rizzi, 400 U.S. 410, 416 (1971); Lamont v. Postmaster
General, 381 U.S. 301, 307-08 (1965).
In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme
Court invalidated California prison regulations which provided
for the routine censorship of inmates' outgoing personal
correspondence, on the grounds that the regulations violated the
free speech rights of the prisoners' correspondents. 416 U.S. at
408 ("[w]hatever the status of a prisoner's claim to uncensored
correspondence with an outsider, it is plain that the latter's
interest is grounded in the First Amendment's guarantee of
freedom of speech"). See also Wolff, 418 U.S. at 576-77.
In the years after Procunier and Wolff, however, the Court
abandoned the distinction between the free speech rights of
inmates and their correspondents on the outside. Abbott, 490
U.S. at 411, n.9 ("any attempt to forge separate standards for
cases implicating the [First Amendment] rights of outsiders [and
inmates] is out of step with the intervening decisions").
Clearly, then, prisoners do not forfeit their First
Amendment rights to use of the mails. For example, prison
officials violate a prisoner's First Amendment rights when they
refuse to deliver incoming personal mail simply because it is
written in a language other than English. Ramos, 639 F.2d at 581. Similarly, officials violate the First Amendment when they
refuse to deliver mail that allegedly could be emotionally disturbing to an inmate, in the absence of a psychiatric
determination that the mail would indeed be upsetting. Id. at
581-82.
The Fifth Circuit has concluded that "[t]he precise contours
of a prisoner's right to free speech are . . . obscure," Brewer,
3 F.3d at 821. However, we need not determine the exact outer
limits of a prisoner's right to free speech, for we are satisfied
that a pattern and practice of opening properly marked incoming
court mail outside an inmate's presence infringes communication
protected by the right to free speech. Such a practice chills
protected expression and may inhibit the inmate's ability to
speak, protest, and complain openly, directly, and without
reservation with the court.
Here, plaintiff's complaint alleged that on fifteen
occasions defendants opened his legal mail outside his presence.
In response to this motion, he supplied evidence documenting five
instances in which his incoming court mail was opened in a three
month period. Defendants admit that on three of the five
occasions documented by plaintiff, they did open his incoming
court mail outside his presence. Because we must view the facts
in the light most favorable to plaintiff, the non-moving party,
and draw all reasonable inferences therefrom, we conclude that
there is sufficient evidence in the record for a reasonable
person to infer that there exists a pattern and practice of
opening plaintiff's incoming court mail outside his presence.
Plaintiff also alleges that defendants censored his mail.
In the context of the First Amendment and prison mail, however, censorship means altering or "withhold[ing] delivery of a
particular letter." Procunier, 416 at 417. See Wolff, 418 U.S.
at 576 ("freedom from censorship is not equivalent to freedom
from inspection or perusal"). But see Taylor, 532 F.2d at 469
(opening prisoner's mail is "indirect censorship"). Plaintiff
points to only one occasion in which his mail was damaged, namely
when the briefing schedule was cut. We decline to hold that a
single instance of damaged mail rises to the level of
constitutionally impermissible censorship, and hence this
allegation cannot withstand the motion for summary judgment. B. Right to meaningful court access
The Supreme Court has held that "prisoners have a
constitutional right of access to the courts." Bounds, 430 U.S.
at 821. See also Johnson, 393 at 489; Wolff, 418 U.S. at 577-80.
The Court explained that the access must be "adequate, effective,
and meaningful" to comport with the Constitution. Bounds, 430
U.S. at 822. Yet, as the Fifth Circuit has observed, "[p]erhaps
because their textual footing in the Constitution is not clear,
these principles [of court access] suffer for lack of internal
definition and prove far easier to state than to apply." Morrow v. Harwell, 768 F.2d 619, 623 (5th Cir. 1985). 1. Source of the right
The Bounds decision made only one reference to a particular
constitutional source, describing the prisoners' complaint as
alleging a violation of their "Fourteenth Amendment rights." 430
U.S. at 818. Since that decision, courts have concluded that the
right arises under the First Amendment right to petition, Proudfoot, 803 F.Supp. at 1052; Jackson v. Procunier, 789 F.2d
307, 310 (5th Cir. 1986); Nordgren v. Milliken, 762 F.2d 851, 853
(10th Cir.), cert. denied, 474 U.S. 1032 (1985); Milhouse v.
Carlson, 652 F.2d 371, 373 (3d Cir. 1981); Washington, 782 F.2d
at 1139; the Sixth Amendment right to counsel, Proudfoot, 803
F.Supp. at 1052; Thornley, 671 F.Supp. at 342; Stover v. Carlson,
413 F.Supp. 718, 722 (D.Conn. 1976); and the Due Process Clause.
Jackson, 789 F.2d at 310; Nordgren, 762 F.2d at 853. Adding more
spice to the soup, the Supreme Court has referred to the "equal
protection guarantee of 'meaningful access.'" Pennsylvania v.
Finley, 481 U.S. 551, 557 (1987). There is also a theory that
meaningful court access is protected under the Privileges and
Immunities Clause. See Nordgren, 762 F.2d at 853. We have
previously noted the various theories, without making our own
selection. See Peterkin, 855 F.2d at 1036, n.18. a. Right to petition
The First Amendment's right to petition "has a pedigree
independent of--and substantially more ancient than--the freedoms
of speech and press." San Filippo v. Bongiovanni, 30 F.3d 424,
443 (3d Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 735 (1995). In colonial times, it referred primarily to the power of
the people to petition their legislatures. In fact, a
significant amount of colonial legislation was initiated by
citizen petition. Akhil R. Amar, The Bill of Rights as a
Constitution, 100 Yale L.J. 1131, 1156 (1991). See also Note, A Short History of the Right to Petition Government for the Redress
of Grievances, 96 Yale L.J. 142 (1986).3
In the modern era, the Supreme Court has held that the
Petition Clause encompasses a right of access not only to the
legislative branch, but to the courts as well. California Motor
Transport Co. v Trucking, Unlimited, 404 U.S. 508, 510 (1972);
Bill Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731, 741 (1983)
("the right of access to the courts is an aspect of the First
Amendment right to petition"). Thus in San Filippo we treated
the filing of a lawsuit as implicating the Petition Clause. 30
F.3d at 440, n.18. In its most recent examination of the clause,
the Supreme Court appeared to treat the right to petition as
subsumed within the broad First Amendment right to freedom of
expression. McDonald v. Smith, 472 U.S. 479, 482 (1985) (right
to petition is merely "an assurance of a particular freedom of
expression"). In San Filippo, in the context of public
employment, we nevertheless distinguished between a petition and
mere speech to hold that "filing a non-sham petition is not a
constitutionally permissible ground for discharge." 30 F.3d at
443. We conclude that the First Amendment right to petition, as
3 At the founding, the Petition Clause also implied a "congressional duty to respond." Amar, Bill of Rights, 100 Yale L.J. at 1156. In the Civil War era, however, Congress enacted rules abolishing the duty to respond, a change later sanctioned by the Supreme Court. Note, A Short History, 96 Yale L.J. at 164; Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465 (1979) (per curiam) (constitution does not require government "to listen [or] to respond" to citizen petition); Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 285 (1984). currently interpreted, is a birthplace for the right of court
access. b. Right to counsel
The plain language of the Sixth Amendment is limited to
criminal proceedings,4 and thus, for example, the Supreme Court
has determined that the Amendment's guarantee of a right to
counsel does not extend to habeas corpus proceedings, which are
civil. Finley, 481 U.S. at 555. Moreover, in Wolff, the most
recent Supreme Court examination of the status of a prisoner's
legal mail, the Court held that "[a]s to the Sixth Amendment, its
reach is only to protect the attorney-client relationship from
intrusion in the criminal setting." 418 U.S. at 576 (emphasis
added). See also Taylor, 532 F.2d at 472. Accordingly, as to
civil actions, we conclude that the Sixth Amendment is not a
promising place for genealogical research on the right of court
access.
Here, plaintiff characterizes the five pieces of opened mail
as regarding "a civil rights action" against prison officials.
Pl.Br. at 2. Two of the letters were apparently related to
Bieregu v. Reno, No. 93-4894 (D.N.J.), a civil action. In
addition, the briefing schedule allegedly opened and damaged
4 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." U.S.Const., Am. VI. concerned a civil forfeiture case. Certainly plaintiff offered
no evidence in response to the motion for summary judgment
indicating that the opened mail involved a criminal proceeding.
Thus we will explore plaintiff's Sixth Amendment claim no
further. c. Due process
As noted, the Bounds decision characterized the plaintiffs'
allegations of a denial of court access as arising under the
Fourteenth Amendment. 430 U.S. at 818. In Procunier, the Court
held that California's mail censorship regulations violated the
"constitutional guarantee of due process of law [which] has as a
corollary the requirement that prisoners be afforded access to
the courts in order to challenge unlawful convictions and to seek
redress for violations of their constitutional rights." 416 U.S.
at 419. See also Ex parte Hull, 312 U.S. 546, 549 (1941)
(invalidating prison official's refusal to mail inmate's habeas
corpus petition); Wolff, 418 U.S. at 576 (referring to "due
process claim based on access to the courts"). Thus there is
ample authority to conclude that among the progeny of the Due
Process Clause is the right of court access.
We note that defendants are federal officials, so
plaintiff's reliance on the Fourteenth Amendment is misplaced; if
grounded in the Due Process Clause, his right of access arises
under the Fifth Amendment. We will construe the pro se complaint liberally, however, Todaro v. Bowman, 872 F.2d 43, 44 n.1 (3d
Cir. 1989), and conclude that it alleges that the repeated opening of properly marked incoming court mail outside his
presence has violated his Fifth Amendment right to court access. 2. Scope of the right
The Supreme Court's characterization of the right to court
access as requiring "adequate, effective, and meaningful" access,
Bounds, 430 U.S. at 822, provides only limited guidance as to the
scope of the right's protection. We have noted that "the Court
did not define the term 'adequate' with specificity," Abdul-
Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993); unfortunately,
"[o]ur own application of Bounds has contributed only slightly to
a more precise standard of 'adequacy.'" Id. See also Brewer, 3
F.3d at 821 ("the precise contours of a prisoner's right of
access to the courts remain somewhat obscure").
Although our decisions have primarily concerned the adequacy
and accessibility of prison law libraries and legal staff, see
Peterkin, supra; Valentine v. Beyer, 850 F.2d 951 (3d Cir. 1988);
Abdul-Akbar, supra, a few principles emerge. Prison measures are
to be evaluated individually and in sum. Abdul-Akbar, 4 F.3d at
203. A court must determine whether the means of access "give
prisoners a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the courts."
Bounds, 430 U.S. at 825. "'[T]he touchstone . . . is meaningful
access to the courts.'" Peterkin, 855 F.2d at 1037 (quoting
Bounds, 430 U.S. at 823) (internal quotation omitted).
Relying principally on our decision in Hudson v. Robinson,
678 F.2d 462 (3d Cir. 1982), the government contends that unless
a prisoner is "actually denied" access to the courts, his right to meaningful access has not been violated. Hudson, 678 F.2d at
466. See also Proudfoot, 803 F.Supp. at 1053, n.8; Walker, 4
F.3d at 413 (opening incoming legal mail outside prisoner's
presence does not violate right to court access unless "his
position as a litigant was prejudiced by the mail tampering");
Brewer, 3 F.3d at 825.
This analysis ignores our later decision in Peterkin. There
we distinguished "ancillary" aspects of court access, which "may
affect merely comfort or convenience without depriving a prisoner
of access," 855 F.2d at 1041, from prison practices that are
"central, not peripheral, to the right of access to the courts."
Id. The former require a showing of actual injury but the latter
do not. Id. at 1041-42.
In Peterkin we characterized as "ancillary" an action
seeking to require the prison to supply gratis pads, pens,
pencils, postage, and photocopying to prisoners who had funds in
their institutional accounts sufficient to purchase the items.
See Peterkin, 855 F.2d at 1041-42 (discussing Kershner v.
Muzurkiewicz, 670 F.2d 440 (3d Cir. 1982) (in banc)). We also
described as ancillary the issue in Hudson itself, where a
prisoner sued because he was once required to wait ten days to
have a document notarized. Peterkin, 855 F.2d at 1039, 1041-42
(discussing Hudson, supra). By contrast, the adequacy of a
prison law library concerned issues central to the right of court
access. Id.
Plaintiff does allege he was injured by the damage to his
briefing schedule, but he offers no evidence to establish that the damage obscured the dates, nor to dispute defendants'
contention that he received a separate notice from the clerk's
office pursuant to Third Circuit LAR Misc. 107.2(a), informing
him that he had fourteen days to file a brief else the appeal
would be dismissed. We conclude that plaintiff has not
demonstrated that he has suffered an actual injury regarding
court access.
Nonetheless, and although the question is close, we conclude
that repeated violations of the confidentiality of a prisoner's
incoming court mail is more central than ancillary to the right
of court access, and thus no showing of actual injury is
necessary for plaintiff to establish that the right has been
infringed. We are satisfied that a practice of opening court
mail outside an inmate's presence implicates a core aspect of the
right. Such conduct inhibits an inmate's ability to protect his
legal rights in court and frustrates the principles of Bounds.
Unlike free pens or slight delays in notarizing documents,
interference with such mail threatens the primary, often sole
means by which a prisoner can exercise his constitutional rights.
Without assurances that legal correspondence, including both
attorney and court mail, is confidential and secure, court access
can hardly be effective, adequate, and meaningful.
In so holding, we distinguish between a single, inadvertent
instance of an inmate's court mail being opened outside his
presence, and a pattern and practice of such conduct.
Notwithstanding our characterization that protection of court
mail is central to an inmate's right of court access, and thus no actual injury need be shown in the face of a pattern and practice
of opening such mail outside of the inmate's presence, we do not
necessarily rule out the need to show such injury where the
opening is isolated and inadvertent. See Castillo, 990 F.2d at
306-07 (allegations that three pieces of incoming court mail were
opened outside inmate's presence states colorable constitutional
claim); Washington, 782 F.2d at 1139 (distinguishing allegation
that two pieces of legal mail were opened outside inmate's
presence, which would indicate "continuing activity" and
therefore constitutional violation, from "single isolated
instance," which would not). Cf. Morgan v. Montanye, 516 F.2d
1367, 1370-72 (2d Cir. 1975) (single instance of legal mail
opened outside presence of inmate does not violate Constitution),
cert. denied, 424 U.S. 973 (1976); Boyd v. Petsock, 795 F.Supp.
743 (W.D.Pa. 1992) (same).
We need not specify a minimum number of instances in which
properly marked legal mail is opened outside a prisoner's
presence sufficient to eliminate the requirement of showing
actual injury. Determining whether a prisoner has demonstrated a
custom or practice is a fact-bound inquiry.
Lastly, we note several distinctions that may clarify our
discussion of the right of court access as applied to prison
legal mail. First, reading legal mail would appear to infringe
the right of access even more than simply opening and inspecting
it. Second, as the Supreme Court noted, the only way to ensure
that mail is not read when opened, and thus to vindicate the
right to access, is to require that it be done in the presence of the inmate to whom it is addressed. Wolff, 418 U.S. at 576-77.
Third, interference with attorney mail probably infringes the
right of court access even more than interference with court
mail, whether the correspondence relates to a criminal
conviction, a subsequent collateral proceeding, or a civil suit
to protect an inmate's constitutional rights. Of all
communications, attorney mail is the most sacrosanct. Thus,
although the Sixth Amendment is not recognized as the repository
for such a shield in civil matters, see Finley, supra, the right
of court access guarantees the privacy of attorney-client
communications. See John W. Palmer, Constitutional Rights of
Prisoners, 4th ed., at 40 (Anderson Publishing Co. 1991) ("A
basic corollary to the right of access to the courts is the
inmate's right to communicate with an attorney concerning the
validity of his conviction or the constitutionality of conditions
within the detention facility").
We conclude that a pattern and practice of opening
plaintiff's properly marked incoming court mail outside his
presence impinges upon his constitutional rights to free speech
and court access.5 This determination does not depend on the 5 We add a note about the right to privacy, because plaintiff relies on the Fourteenth Amendment and the district court cited the decision in which Judge Reinhardt, in dissent, stated "reading legal mail is a violation of the prisoner's privacy rights." Stevenson, 877 F.2d at 1443. The Supreme Court has recognized that the right to privacy survives incarceration. Turner, 482 U.S. at 95-99. See also Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 334 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). Although authorized by §540.18, routine reading of purely personal letters from friends and family, those daily expressions of affection and love, may implicate an inmate's right to privacy. Certainly personal mere violation by prison officials of §540.18 and Policy
Statement §13(a), which by itself does not establish a
constitutional violation. Daniels v. Williams, 474 U.S. 327,
332-33 (1986); Davis v. Scherer, 468 U.S. 183, 193-94 (1984).
IV.
We turn next to the question whether a pattern and practice
of opening plaintiff's properly marked incoming court mail
outside his presence, which infringes his rights to free speech
and court access, rises to the level of a constitutional
violation.
In several decisions the Supreme Court has struggled to
define the standard for review of prison regulations which
impinge upon the constitutional rights of inmates. Though the
Court announced a fairly searching standard in Procunier,6 its
later decisions in Turner and Abbott held that as to prison mail,
information in the hands of prison officials may result in ridicule, harassment, and retaliation. If prisoners are stripped of the right to communicate privately their love, their hopes, and even their grievances, then recidivism rather than rehabilitation is fostered. Similarly, opening legal mail outside the presence of an inmate, giving rise to the reasonable inference that such mail is read, may also implicate the right to privacy. We do not reach this issue, however, as plaintiff has not placed it before us. 6 In Procunier, the Court held that a prisoner's mail is protected "against unjustified governmental interference." 416 U.S. at 408-09. To justify interference, the government must show an "important or substantial governmental interest unrelated to the suppression of expression," id. at 413, and that the suppression was "no greater than is necessary or essential to the protection of the particular governmental interest involved." Id. the Procunier standard is "limited to regulations concerning
outgoing correspondence." Abbott, 490 U.S. at 413 (emphasis
added).
In Turner, the Court applied a less rigorous standard for
review of incoming mail, a standard which it applied in Abbott as
well. The Court in Turner held that "when a prison regulation
impinges on inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests." Turner, 482 U.S. at 89. See also Shabazz, 482 U.S.
at 349-50 (applying Turner reasonableness standard to regulations
that restrict free exercise of inmate's religion). The Court
then identified several factors useful in evaluating
reasonableness. Id. at 89-91. See also Abbott, 490 U.S. at 414-
18; Sturm v. Clark, 835 F.2d 1009, 1013-14 (3d Cir. 1987). The
Abbott Court acknowledged that the Turner standard is more
deferential to prison officials than that of Procunier, but
embraced the new test with the caveat that "a reasonableness
standard is not toothless." Abbott, 490 U.S. at 414. See also
Turner, 482 U.S. at 97 (ban on inmate marriage not reasonably
related to legitimate penological interests).
Though the case before us concerns an alleged pattern and
practice of official conduct, rather than a prison regulation,
application of the Turner standard is appropriate. See Brewer, 3
F.3d at 825-26 (applying Turner standard to prison practice, not
regulation). We also note that the government does not argue
that the conduct alleged by plaintiff comports with Turner. The first Turner factor asks whether there is a rational
connection between the infringing prison practice and a valid
government interest. To justify interference with prisoner mail,
officials typically invoke their interests in rehabilitation of
inmates and institutional security. See, e.g., Abbott, 490 U.S.
at 415; Shabazz, 482 U.S. at 348. First, in the absence of a
determination by, for example, a prison psychiatrist that receipt
of particular correspondence would disturb an inmate, we hesitate
to conclude that the government interest in rehabilitation is
served by opening incoming court mail outside an inmate's
presence. See Ramos, 639 F.2d at 581-81. Second, the interest
in institutional security is generally linked to mail on the
supposition that correspondence may contain plans for escape or
incite violence. We recognize the validity of this substantial
interest, but to argue that it is served on the facts of this
case--to suggest that repeatedly opening incoming court mail
outside the presence of an inmate advances a legitimate interest
in institutional security--would overreach.
In addition, we note that prison officials themselves have
long recognized that providing a confidential, reliable means for
prisoners to communicate their grievances to impartial courts and
government officials, and to obtain a fair resolution of those
grievances, releases tension in the prisons and itself advances
the state interest in maintaining institutional order and
security. See generally Ira P. Robbins, The Prisoners' Mail Box and the Evolution of Federal Inmate Rights, 144 F.R.D. 127 (1993)
("Prisoners' Mail Box"). In 1929, for example, Superintendent of Prisons (and later first Director of the U.S. Bureau of Prisons)
Sanford Bates wrote to the warden of the federal jail at Fort
Leavenworth: It seems to me important that the inmates in your institution should have some reasonable and dignified method of making known any real or fancied grievance that they might have. An institution is a good deal like a steam boiler, and needs a safety valve occasionally.
Prisoners' Mail Box, 144 F.R.D. at 143. An understanding of the
benefits of such a "safety-valve" persuaded prison officials that
preserving the confidentiality of communications with courts,
agencies, and legislators advanced, rather than frustrated,
important penological interests. Id. at 148-49, 153-54.7
Consideration of the second Turner factor, the availability
of alternate means of exercising the rights at issue, also
indicates that defendants' practice is not reasonably related to
a legitimate interest. Although other means of expression remain
available to prisoners even when prison officials interfere with
their general mail, Abbott, 490 U.S. at 417-18, we are not aware
of means other than by way of uninhibited use of the mail for pro
se prisoners to exercise their rights of court access.
Finally, the third Turner factor concerns the burdens of
accommodating the exercise of prisoners' constitutional rights.
To accommodate plaintiff's rights to free speech and court access 7 Interestingly, though prison officials initially censored inmate correspondence to federal judges to ensure that the content was decent, respectful, and non-libelous, when federal judges and even the Clerk of the U.S. Supreme Court expressed a preference for receiving prisoner mail unopened and unexpurgated, the Bureau of Prisons changed its procedures. Prisoners' Mail Box, 144 F.R.D. at 155, 159-60. by opening his incoming court mail only in his presence places no
burden at all on guards, prisoners, and the allocation of prison
resources: it is what the regulations have required since 1985.
See 28 C.F.R. §540.18 (1994).
We hold that the pattern and practice of opening plaintiff's
properly marked incoming court mail outside his presence fails
the Turner reasonableness standard and violates the Constitution.
We acknowledge that our conclusion differs from that of the Fifth
Circuit, see Brewer, 3 F.3d at 825, but note that it comports
with the results reached by the majority of courts of appeals to
consider these precise or similar issues, not to mention the
results reached by our own district courts. See Lavado, 992 F.2d
at 609-10; Castillo, 990 F.2d at 307; Lemon, 931 F.2d at 1468;
Washington, 782 F.2d at 1139; Jensen, 648 F.2d at 1182-83; Ramos,
639 F.2d at 582; Jordan, ___ F.Supp. at ___, 1995 WL 139274, at
*4-5; Proudfoot, 803 F.Supp. at 1052; Carty, 440 F.Supp. at 1162-
63.
As noted above, we are careful to distinguish between a
single, inadvertent opening of properly marked legal mail outside
an inmate's presence and a pattern or practice of such actions.
The former may not infringe a prisoner's right to free speech,
nor his right to court access absent a showing of actual injury.
The latter, however, both infringes those rights and fails
Turner.
V. Even where a plaintiff can establish a constitutional
violation, under the doctrine of qualified immunity government
officials will not be liable if "their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). For a right to be clearly established,
"[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640
(1987). In contrast, if "the law is not established clearly when
an official acts, he is entitled to qualified immunity because he
'could not reasonably be expected to anticipate subsequent legal
developments.'" In re City of Philadelphia, ___ F.3d at ___,
1995 WL 88161, at * 16 (quoting Harlow, 457 U.S. at 817-19).
Though here again the question is close, we conclude that
defendants are not entitled to qualified immunity.
There can be no dispute that the contours of plaintiff's
rights under §540.18 and §13(a) of the Policy Statement were
sufficiently clear that a reasonable prison official would
understand that repeatedly opening plaintiff's incoming court
mail outside his presence violates those regulations. Although
promulgation of a regulation will not constitutionalize its
violation, §540.18 and the Policy Statement surely undermine any
claim by defendants that they were unaware of their legal
obligations in handling plaintiff's mail. Thus the government's
argument is reduced to the contention that while the illegality of their behavior was manifest, the constitutional magnitude of
their actions was murky.
We disagree. First, in Procunier and Wolff the Supreme
Court made clear that the treatment of a prisoner's legal mail
implicates constitutional rights to free speech and court access.
The subsequent decisions in Turner and Abbott did not question
that interference with prison mail infringed these constitutional
rights; the latter decisions merely established that such
infringement was constitutionally permissible if it was
reasonably related to a legitimate penological purpose. Here,
defendants do not even argue that their conduct meets this
standard.
Second, though numerous other courts of appeals have
considered conduct akin to that alleged by plaintiff, no gaping
divide has emerged in the jurisprudence such that defendants
could reasonably expect this circuit to rule other than we do.
See Lavado, 992 F.2d at 609-10; Castillo, 990 F.2d at 307; Lemon,
931 F.2d at 1465; Washington, 782 F.2d at 1139; Ramos, 639 F.2d
at 582; Jensen, 648 F.2d at 1182-83. Only the Fifth Circuit has
reached a contrary decision. Brewer, 3 F.3d at 825; Walker, 4 F.3d at 413.
The Seventh Circuit's decision in Castillo is particularly
instructive. There, a prisoner alleged that three letters from a
federal courthouse were opened outside his presence. Because
three instances "may be indicative of ongoing activity," 990 F.2d
at 306, the Seventh Circuit determined that the inmate had
"presented a colorable claim" of a constitutional violation and reversed the district court's dismissal of the action. Id. at
307.
The Sixth Circuit's decision in Lavado is also relevant.
There, the court denied summary judgment to defendant prison
officials on the basis of qualified immunity where one letter
from the Court of Appeals for the Eleventh Circuit was allegedly
opened outside an inmate's presence and a second letter, from a
state law department, was allegedly opened and read in his
presence. Lavado, 992 F.2d at 609-10. The Sixth Circuit held
that "it was clearly established at the time of the
openings/reading in the instant case that prisoners' mail could
not be opened or read in [an] arbitrary or capricious fashion."
Id. at 610.
Third, the district courts in our circuit who have addressed
the issue have consistently determined that repeatedly opening a
prisoner's legal mail outside his presence violates the
Constitution. See Jordan, ___ F.Supp. at ___, 1995 WL 139374, at
*5; Proudfoot, 803 F.Supp. at 1052; Carty, 440 F.Supp. at 1162-
63. See also Young v. Keohane, 809 F.Supp. 1185, 1197-98
(M.D.Pa. 1992) (denying qualified immunity to prison officials
who allegedly intercepted mail addressed to judges and court
personnel).
Finally, the absence of a previous decision from our court
on the constitutionality of the conduct at issue is not
dispositive. We have explained that the "clearly established"
standard "require[s] 'some but not precise factual correspondence
between relevant precedents and the conduct at issue.'" In re City of Philadelphia, ___ F.3d at ___, 1995 WL 88161 at *25
(citation omitted). We think the facts of Castillo, Lavado,
Proudfoot, and Carty enjoy a substantial "factual correspondence"
to the circumstances here.
Thus, we conclude that though our court has not previously
ruled on this precise issue, the contours of defendants' legal
obligations under the regulations and Constitution were
understand that repeatedly opening plaintiff's properly marked
incoming court mail outside his presence violates the
Constitution. Accordingly, we will reverse the district court
order granting defendants qualified immunity from plaintiff's
claims.
VI.
For the foregoing reasons, we will affirm in part, see note
1, supra, and reverse in part the order of the district court
granting summary judgment to all defendants on all claims. Bieregu v. Reno, No. 94-5719
SCIRICA, Circuit Judge, concurring.
I agree that Bieregu has alleged a constitutional
violation of his right to court access, and that the law was
sufficiently established to preclude a finding of qualified
immunity. But I have doubts that Bieregu's free speech rights
are implicated here.
First Amendment free speech rights are implicated when
prison officials censor inmates' mail. Procunier v. Martinez,
416 U.S. 396, 409 (1974), overruled on other grounds, Thornburgh
v. Abbott, 490 U.S. 401 (1989). But "freedom from censorship is
not equivalent to freedom from inspection or perusal." Wolff v.
McDonnell, 418 U.S. 539, 576 (1974). Because it is far from
clear that defendants censored Bieregu's court mail, I would base
this holding on his constitutional right to court access.
Also, because Bieregu has not claimed his right to
privacy was infringed, it is unnecessary to address this issue.