Stow v. Grimaldi

• Court: Court of Appeals for the First Circuit
• Decided: May 27, 1993
• Docket: 92-2230
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-2230 

                                   WESTON J. STOW,

                                Plaintiff, Appellant,

                                          v.

                               SUSAN GRIMALDI, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Torruella and Cyr, Circuit Judges.
                                             ______________

                                 ____________________

            Weston J. Stow on brief pro se.
            ______________
            Jeffrey  R. Howard,  Attorney General,  and William  C.  McCallum,
            __________________                          _____________________
        Assistant Attorney General, on brief for appellees.

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                                     May 27, 1993
                                 ____________________

Per Curiam.   Plaintiff appeals from the  dismissal
                      __________

            of his action as frivolous.  We affirm.

                                          I.
                                          _

                      Plaintiff, an inmate at New Hampshire State Prison,

            filed a  civil rights action seeking declaratory, injunctive,

            and  damages  relief  for  two  instances  when  he  was  not

            permitted by prison regulations to send sealed letters to the
                                                    ______

            Liberty University School  of Lifelong  Learning in  postage-

            prepaid envelopes supplied by  the university.  The envelopes

            contained plaintiff's request to enroll in summer classes and

            plaintiff's grades for the  previous semesters.  While prison

            regulations allowed sealed letters  to be sent to any  of ten

            listed  persons or entities (e.g., president, vice-president,
                                         ____

            federal  or   state  courts)  --  all   other  outgoing  mail

            presumably had  to be sent  in unsealed  envelopes for  ready

            inspection --  schools and universities were  not included on

            the privileged  list.1  Nevertheless,  plaintiff claimed that

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            1.  According   to   plaintiff,  the   challenged  regulation
            provided as follows:

                 Privileged Correspondence

                 1.   Correspondence  between a resident and a privileged
                      correspondent  will  not  ordinarily be  inspected.
                      However,  it may be  opened in the  presence of the
                      resident  when considered  necessary to  insure the
                      authenticity of the  correspondent or to check  for
                      contraband.   In any  case, it  will not  be opened
                      outside the  presence  of the  resident unless  the
                      item  has  specifically  waived this  privilege  in
                      writing.  Mail in privileged status must be clearly
                      addressed  to or received from  one of the ten (10)

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his mail should be considered privileged because it contained

            plaintiff's   grades,  a  personal   matter.    After  prison

            officials  refused   plaintiff's  request  and   required  an

            unsealed   mailing,  plaintiff   filed  the   present  action

            challenging the prison mail  policy and the prison officials'

            actions  as  violative of  the  constitution  and the  Family

            Educationaland Privacy Rights Act of 1974, 20 U.S.C.   1232g.

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                      privileged classifications in this PPD.

                 2.   The  following is  a complete  list of  agencies or
                      individuals   classified   as  privileged.     Mail
                      addressed  as  indicated  will not  be  opened  for
                      inspection  except in  the resident's  presence and
                      may be sealed before deposit in the mail collection
                      boxes.   Addresses marked with  a *, do not require
                      postage.

                      a.  President of the United States, Washington, DC

                      b.      Vice-President   of   the   United  States,
            Washington,             DC

                      c.  Members of Congress addressed to appropriate 
                          office

                      d.  The Attorney General of the United States and 
                          regional offices of the Attorney General

                      e.  Federal or State Courts*

                      f.  The Governor and Council of the State of New 
                          Hampshire, State House, Concord, NH 03301*

                      g.  The Attorney General of the State of New     
                          Hampshire,  State  House  Annex,   Concord,  NH
            03301*

                      h.  Commissioner of the Department of Corrections*

                      i.  Members of the State Parole Board*

                      k.  County Attorneys per warden

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Concluding that plaintiff had  no right to send his

            college  transcripts in sealed  envelopes, a magistrate judge

            recommended that  the complaint  be dismissed.   The district

            court agreed, and plaintiff has now appealed.

                                         II.
                                         __

                      The     censorship2     of    outgoing     prisoner

            correspondence "is  justified if  the following  criteria are

            met":

                      First,  the  regulation  or  practice  in
                      question  must  further  an important  or
                      substantial     governmental     interest
                      unrelated    to   the    suppression   of
                      expression.    Prison  officials may  not
                      censor  inmate  correspondence simply  to
                      eliminate   unflattering   or   unwelcome
                      opinions    or    factually    inaccurate
                      statements.   Rather, they must show that
                      a regulation  authorizing mail censorship
                      furthers  one or more  of the substantial
                      governmental   interests   of   security,
                      order, and rehabilitation.   Second,  the
                      limitation  of  First Amendment  freedoms
                      must  be no greater  than is necessary or
                      essential  to  the   protection  of   the
                      particular      governmental     interest
                      involved.  Thus  a restriction on  inmate
                      correspondence that furthers an important
                      or   substantial    interest   of   penal
                      administration   will   nevertheless   be
                      invalid  if  its  sweep is  unnecessarily
                      broad.   This does  not mean,  of course,
                      that   prison   administrators   may   be
                      required  to  show  with  certainty  that
                      adverse consequences would flow  from the

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            2.  We will  assume without  deciding that the  inspection of
                                                            __________
            plaintiff's mail  constitutes censorship.   But see  Royse v.
                                          __________    ___ ___  _____
            Superior  Court of the State of Washington, 779 F.2d 573 (9th
            __________________________________________
            Cir.  1986)  (inspection  for  contraband  of  mail  sent  by
            prisoners to  state court does not  constitute censorship and
            does not violate the constitution).

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failure  to  censor a  particular letter.
                      Some   latitude   in   anticipating   the
                      probable consequences of allowing certain
                      speech   in   a  prison   environment  is
                      essential to  the proper discharge  of an
                      administrator's duty.  But any regulation
                      or   practice   that   restricts   inmate
                      correspondence    must    be    generally
                      necessary to protect one  or more of  the
                      legitimate     governmental     interests
                      identified above.

            Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).  See also
            _________    ________                                ___ ____

            Thornburgh  v. Abbott,  490  U.S. 401,  413 (1989)  (Martinez
            __________     ______                                ________

            standard  applies  when  assessing the  constitutionality  of

            regulations    concerning   outgoing    correspondence,   but

            regulation of  incoming mail  is subject to  more deferential

            reasonableness standard).

                      The  challenged New Hampshire State Prison practice

            of requiring non-privileged outgoing mail to be submitted for

            inspection  in  unsealed  envelopes satisfies  both  Martinez
                                                                 ________

            criteria.     First,  the   practice  furthers  an  important

            governmental interest -- security.  As the  Supreme Court has

            recognized,   ["p]erhaps   the   most  obvious   example   of

            justifiable censorship  of prisoner mail would  be refusal to

            send  . .  . letters  concerning  escape plans  or containing

            other  information  concerning  proposed criminal  activity."

            Procunier v.  Martinez, 416  U.S.  at 413.   Plaintiff  would
            _________     ________

            argue  that his  mail, directed  to a  school in  an envelope

            supplied by the school, presented no security problem because

            escape  or criminal  activity plans  could not  fruitfully be

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transmitted  in this manner.   Plaintiff is wrong.   Were the

            institution  not a legitimate  one or were  the school's mail

            room employee  in cahoots with  plaintiff, security  concerns

            could well be implicated.

                      Plaintiff  argues  that   inspection  of   outgoing

            correspondence cannot  rationally be justified as  a security

            measure given,  plaintiff says, that prison  officials do not

            monitor  prisoners'  telephone  calls  or  conversations with

            visitors,  means  by which  prisoners  could  just as  easily

            communicate escape plans.   Plaintiff  cites to  a number  of

            older cases  which employed  such reasoning in  striking down

            outgoing mail inspection practices.   We, however, rejected a

            similar argument in Feeley v. Sampson, 570 F.2d 364, 374 (1st
                                ______    _______

            Cir.  1978).   There, the  district court  had reasoned  that

            "because detainees' visits went unmonitored,  escape plans or

            contraband  `drops'  could  be  plotted  regardless   of  any

            surveillance   of   correspondence,"   and   concluded   that

            inspection of  outgoing mail could therefore not be upheld on

            security  grounds.  Id. at  374.  We  rejected that reasoning
                                ___

            and concluded, in substance,  that unmonitored mail increased

            prisoners' opportunities for plotting escape and consequently

            surveillance was justified as a security measure.  We  adhere

            to that position.

                      The   second   Martinez   requirement,   that   the
                                     ________

            limitation  be no greater than  necessary, is also  met.  The

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limitation is fairly minimal -- plaintiff can correspond with

            the school provided  he allows prison officials to  check the

            correspondence  -- and  there is  no other  way to  determine

            whether escape  plans or  other proscribable matter  is being

            sent except  by looking  at the correspondence.   Plaintiff's

            constitutional rights  were not violated.   See United States
                                                        ___ _____________

            v.  Whalen, 940  F.2d  1027, 1035  (7th  Cir.) ("it  is  well
                ______

            established that  prisons have sound reasons  for reading the

            outgoing mail  of their inmates"),  cert. denied, 112  S. Ct.
                                                ____________

            403 (1991); Gaines  v. Lane,  790 F.2d 1299,  1304 (7th  Cir.
                        ______     ____

            1986)  (inspection of  non-privileged outgoing mail  does not

            violate prisoners'  First Amendment rights); United States v.
                                                         _____________

            Kelton, 791 F.2d 101  (8th Cir.) (prisoner's Fourth Amendment
            ______

            rights  not  violated  by prison  official's  inspection  and

            copying of prisoner's outgoing  mail), cert. denied, 479 U.S.
                                                   ____________

            989 (1986).

                      Nor  were  plaintiff's  rights  under   the  Family

            Educational  and  Privacy  Rights  Act, 20  U.S.C.     1232g,

            violated.  Nothing in  that Act requires prison  officials to

            take plaintiff's word that the envelope contained transcripts

            and accept the sealed mailing.

                      Affirmed.
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