Sallier v. Brooks

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Sallier v. Brooks, et al. No. 01-1269

ELECTRONIC CITATION: 2003 FED App. 0332P (6th Cir.)

File Name: 03a0332p.06 Wright, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONS DIVISION, Lansing, Michigan, for

Appellants. Daniel E. Manville, Ferndale, Michigan, for

UNITED STATES COURT OF APPEALS Appellee.

FOR THE SIXTH CIRCUIT _________________

_________________

OPINION

BLAINE SALLIER, X _________________

Plaintiff-Appellee, - MARTHA CRAIG DAUGHTREY, Circuit Judge. The

-

- No. 01-1269 plaintiff, Blaine Sallier, filed this action as a Michigan state

v. - prisoner, pursuant to 42 U.S.C. § 1983, charging that the

> defendants, two prison mailroom clerks, had violated his civil

, rights by unlawfully “opening, censoring, and interfer[ing

DEBORAH BROOKS and -

CHRISTINE RAMSEY , with his] legal mail” and seeking declaratory, monetary, and

- injunctive relief. The district court declined to rule on the

Defendants-Appellants. - defendants’ claim of qualified immunity before trial and

- instead instructed the jury to determine whether certain

N correspondence was in fact legal mail and whether that

Appeal from the United States District Court correspondence had been improperly opened outside of

for the Eastern District of Michigan at Detroit. Sallier’s presence. The jury returned a verdict in the

No. 96-70458—Arthur J. Tarnow, District Judge. plaintiff’s favor on 13 of the claims, assessing damages at

$13,000.

Argued: September 17, 2002

The defendants now appeal the district court’s ruling on

Decided and Filed: September 18, 2003 qualified immunity, as well as the district court’s failure to

grant a new trial based on a number of evidentiary decisions

Before: SILER, DAUGHTREY, and GILMAN, Circuit and what they contend were erroneous jury instructions. We

Judges. conclude that the question of what constitutes “legal mail” is

a question of law and, therefore, that the district court erred in

_________________ submitting the issue to the jury. For the reasons set out

below, we further conclude that the correspondence in 11 of

COUNSEL the 20 claims did not implicate constitutionally-protected

legal mail rights, that the defendants were entitled to qualified

ARGUED: Kevin R. Himebaugh, OFFICE OF THE immunity on six of the remaining nine claims, and that the

ATTORNEY GENERAL, CORRECTIONS DIVISION, defendants were not entitled to qualified immunity on the

Lansing, Michigan, for Appellants. Daniel E. Manville, final three claims. We reverse the judgment below as to the

Ferndale, Michigan, for Appellee. ON BRIEF: Patrick J. claims that either did not involve legal mail rights or for

1

No. 01-1269 Sallier v. Brooks, et al. 3 4 Sallier v. Brooks, et al. No. 01-1269

which there was qualified immunity, and we affirm the K. State Appellate Defender Office – August 29, 1995

judgment below as to the three claims involving protected

legal mail rights for which there was no qualified immunity. L. Teola P. Hunter, Wayne County Clerk –

We also reduce the damages awarded by the jury accordingly. September 9, 1995

Finally, we find no merit in the defendants’ remaining

evidentiary claims and affirm the district court’s rulings on M. Law Office of Kitch, Drutchas, Wagner & Keeney

those issues. – November 7, 1995

FACTUAL AND PROCEDURAL BACKGROUND N. Lynn Allen, Oakland County Clerk – December 20,

1995

In this pro se § 1983 action, the plaintiff claims that two

prison mailroom clerks, Deborah Brooks and Christine O. United States District Court – December 22, 1995

Ramsey, violated his federal constitutional rights by opening

his “legal mail” outside his presence, after he had filed a P. Michigan Court of Appeals – December 22, 1995

written request to have such mail opened only in his presence.

The written request was dated May 4, 1994, and was entered Q. United States District Court – December 23, 1995

into the mailroom records on May 5, 1994. The 20 items of R. United States District Court – December 27, 1995

mail at issue were sent from various sources over a two-year

period as follows: S. Sixth Judicial Circuit – January 22, 1996

A. State Court Administrator – March 30, 1994 T. United States District Court – February 5, 1996

B. Court of Appeals – April 1, 1994 Sallier did not allege that any of the mail was actually read by

prison employees, only that it was delivered to him already

C. Judicial Tenure Commission – April 15, 1994 opened.

D. Attorney Grievance Commission – April 29, 1994 The defendants filed a motion to dismiss the complaint

E. Michigan Appellate Assigned Counsel System – pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the

May 5, 1994 alternative, for summary judgment. They argued that Sallier

had failed to establish a constitutional violation and that, even

F. American Bar Association – May 10, 1995 if he had, they were protected from suit by qualified

immunity. The district court denied the defendants’ motion

G. Macomb County Clerk – May 19, 1995 and appointed counsel for Sallier. After Sallier’s appointed

counsel amended the complaint, the defendants again moved

H. Macomb County Clerk – June 27, 1995 for dismissal pursuant to Rule 12(b)(6) based on qualified

immunity. The court denied the motion, finding that

I. State Appellate Defender Office – July 26, 1995

the jury must make . . . factual determinations before the

J. Macomb County Clerk – August 16, 1995 Court has sufficient information to decide the qualified

No. 01-1269 Sallier v. Brooks, et al. 5 6 Sallier v. Brooks, et al. No. 01-1269

immunity issue. The jury must, for example, decide ANALYSIS

whether each of the pieces of correspondence referenced

in the Complaint constituted “legal mail,” and whether I. “Legal Mail”: a Question of Law

any letters determined to be “legal mail” were opened

outside of Mr. Sallier’s presence. The jury’s findings of As a threshhold matter, we note that the district court erred

fact are thus key to the Court’s determination of qualified in reserving a ruling on the defendants’ qualified immunity

immunity, as the court must then decide, as a matter of defense until the jury made a factual determination as to

law, whether the defendants would have reasonably whether each piece of correspondence constituted protected

understood that opening the specific pieces of mail mail. The determination of whether particular kinds of

referenced in the complaint violated Mr. Sallier’s rights. correspondence qualify for the constitutional protection

accorded a prisoner’s “legal mail” is a question of law

The jury must make credibility determinations and must properly decided by the court, not one of fact that can be

determine what legal mail, if any, was opened outside of submitted to a jury. See Seal v. Morgan, 229 F.3d 567, 580

Mr. Sallier’s presence after the defendants knew, or (6th Cir. 2000)(stating that courts determine questions of law,

should have known, that such actions were prohibited. juries determine questions of fact). Had the court found

certain correspondence to be constitutionally protected legal

Before and during the trial, the district court also issued a mail, it should then have granted qualified immunity on any

series of in limine rulings, including one that granted the claims involving those items of correspondence that the

plaintiff’s motion to preclude admission of his prior defendants could have opened without violating constitutional

convictions and another that denied the defendants’ motion to rights that were clearly established at the time and of which

require introduction into evidence of the original envelopes in a reasonable person would have known. See Christophel v.

which the letters in question were received. The court Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995). After

allowed Sallier to introduce as exhibits photocopies of some dismissing the claims for all correspondence that was either

of the allegedly opened envelopes that included his not legal mail or for which the defendants had qualified

handwritten notes. immunity, the court should have submitted the remaining

claims to the jury for a verdict on the factual dispute of

The jury returned a verdict in the plaintiff’s favor on 13 of whether such correspondence was actually opened outside of

the 20 claims, awarding compensatory damages of $750 and Sallier’s presence.

punitive damages of $250 for each claim, totaling $13,000 in

damages. After the jury verdict, the defendants moved for a II. Constitutionally-Protected “Legal Mail”

new trial based on alleged evidentiary errors or, in the

alternative, for remittitur or judgment as a matter of law. The A prisoner’s right to receive mail is protected by the First

district court denied the motion. The defendants appeal the Amendment, but prison officials may impose restrictions that

district court’s denial of their motion for a new trial or are reasonably related to security or other legitimate

remittitur and its failure to grant them qualified immunity on penological objectives. See Knop v. Johnson, 977 F.2d 996,

all claims. 1012 (6th Cir. 1992). As we have noted, “prison officials

may open prisoners’ incoming mail pursuant to a uniform and

evenly applied policy with an eye to maintaining prison

security.” Lavado v. Keohane, 992 F.2d 601, 607 (6th Cir.

No. 01-1269 Sallier v. Brooks, et al. 7 8 Sallier v. Brooks, et al. No. 01-1269

1993). However, prison officials who open and read another facility, and were not required to designate particular

incoming mail in an arbitrary and capricious fashion violate attorneys as their counsel. Id.

a prisoner’s First Amendment rights. See Parrish v. Johnson,

800 F.2d 600, 604 (6th Cir. 1986). Not all mail that a prisoner receives from a legal source will

implicate constitutionally protected legal mail rights. Indeed,

Moreover, when the incoming mail is “legal mail,” we have even mail from a legal source may have little or nothing to do

heightened concern with allowing prison officials unfettered with protecting a prisoner’s access to the courts and other

discretion to open and read an inmate’s mail because a governmental entities to redress grievances or with protecting

prison’s security needs do not automatically trump a an inmate’s relationship with an attorney. When it does,

prisoner’s First Amendment right to receive mail, especially however, we must balance the interest of prison security

correspondence that impacts upon or has import for the against the possibility of tampering that could unjustifiably

prisoner’s legal rights, the attorney-client privilege, or the chill the prisoner’s right of access to the courts or impair the

right of access to the courts. See Kensu v. Haigh, 87 F.3d right to be represented by counsel. We also note in response

172, 174 (6th Cir. 1996) (“The right of a prisoner to receive to prison officials’ security concerns that even

materials of a legal nature, which have impact upon or import constitutionally protected mail can be opened (although not

with respect to that prisoner’s legal rights and/or matters, is a read) and inspected for contraband. The only requirement is

basic right recognized and afforded protection by the that such activity must take place in the presence of the

courts. . . .”); see also Davis v. Goord, 320 F.3d 346, 351 (2d recipient, if such a request has been made by the prisoner.

Cir. 2003) (“In balancing the competing interests implicated

in restrictions on prison mail, courts have consistently A. Claims A, B, C, D, and E: Items Allegedly Opened

afforded greater protection to legal mail than to non-legal Before Plaintiff Filed the Written Request

mail. . . .”).

On May 4, 1994, Sallier submitted a form to the mailroom

In an attempt to accommodate both the prison’s needs and supervisor indicating that it was “a written request to be

the prisoner’s rights, courts have approved prison policies that present when my legal mail is opened.” The request was

allow prison officials to open “legal mail” and inspect it for received by defendant Redmond on May 5, 1994. This

contraband in the presence of the prisoner. See, e.g., Wolff v. written request was submitted in compliance with Michigan

McDonnell, 418 U.S. 539, 577 (1974) (upholding such a Administrative Code Rule 791.6605(4) and Michigan

policy against a Sixth Amendment attorney-client privilege Department of Corrections policy directive PD 05.03.118 ¶K,

claim and a Fourteenth Amendment due process claim based both of which state that upon a prisoner’s written request,

on access to the courts). In Knop, we addressed an opt-in mail that is clearly identified as being from the prisoner’s

system in which prison officials could open any mail sent to designated attorney, the legislative corrections ombudsman,

a prisoner unless the prisoner affirmatively requested that or a state or federal court “shall be opened and inspected for

“privileged mail,” defined by the policy as mail sent by a contraband in the prisoner’s presence.”

court or by counsel, be opened in his presence. 977 F.2d at

1012. We found that the opt-in system was constitutionally Sallier received all of the letters that he alleged were

sound as long as prisoners received written notice of the opened outside his presence in Claims A, B, C, D, and E on

policy, did not have to renew the request upon transfer to or before the date that his written request was accepted in the

prison mailroom. Because this court and others have upheld

No. 01-1269 Sallier v. Brooks, et al. 9 10 Sallier v. Brooks, et al. No. 01-1269

opt-in systems that require an affirmative request to be if (a) the envelope contains the return address of a licensed

present when legal mail is opened, Sallier had no attorney and (b) the envelope has markings that warn of its

constitutionally protected right to be present for the opening privileged content); Wolff, 418 U.S. at 576 (finding it entirely

of any mail before the mailroom had received his request. appropriate for a state to require any communication from an

Therefore, we need not reach the issue of whether the mail in attorney to be specially marked as originating from an

Claims A, B, C, D, and E constituted “legal mail.” As a attorney, including the attorney’s name and address, if the

matter of law, the defendants cannot be liable for having communication is to be given special treatment).

opened mail, even if it is “legal mail,” prior to the time that

Sallier made his written request to have such mail opened in In general, when there is no specific indication to the

his presence. As a result, Claims A, B, C, D, and E should contrary, an envelope from an organization such as the ABA

not have been submitted to the jury and, accordingly, the jury may be opened pursuant to the regular mail policy without

verdict on these five claims must be set aside. violating the First Amendment rights of a prisoner. As a

matter of law, therefore, the defendants cannot be liable under

B. Claim F: Correspondence from the American Bar Claim F, which should not have been submitted to the jury.

Association Accordingly, the jury verdict on this claim must be set aside.

Sallier alleged that on May 10, 1995, he received C. Claims G, H, J, L, and N: Correspondence From

correspondence from the American Bar Association that was County Clerks

opened by the defendants outside his presence. Nothing on

the envelope indicated that it contained confidential, personal, Sallier alleged that on May 19, 1995, June 27, 1995,

or privileged material, that it was sent from a specific attorney August 15, 1995, September 6, 1995, and December 20,

at the ABA, or that it related to a currently pending legal 1995, he received mail from various county clerks that was

matter in which Sallier was involved. The ABA is a opened outside of his presence. The senders on these

professional organization designed to support attorneys in a envelopes are: (1) Carmella Sabaugh, Macomb County Clerk

variety of ways; it is not an organization that has the authority and Register of Deeds; (2) Teola P. Hunter, Wayne County

to take action on behalf of an inmate. Compare Jensen v. Clerk; and (3) Lynn D. Allen, Oakland County Clerk -

Klecker, 648 F.2d 1179, 1183 (8th Cir. 1981) (finding that a Register of Deeds, County Clerk’s Office. Nothing on any of

letter from the National Prison Project, bearing the name of an the envelopes indicated that the envelope contained

attorney and stamped “Lawyer Client Mail Do Not Open confidential, personal, or privileged material, that it was sent

Except In Presence of Prisoner” appears to come well within from an attorney, that it related to a currently pending legal

the definition of protected attorney-client legal mail). Given matter in which Sallier was involved, or that it was to be

that the ABA is not a direct-services legal organization and opened only in the presence of the prisoner. In general, a

generally does not provide legal advice and that the envelope county clerk or register of deeds is not someone who can

contained no marking to alert a prison employee that it was to provide legal advice about a prisoner’s rights or direct legal

be opened only in the presence of the prisoner, receipt of this services and is not someone with authority to take action on

correspondence did not implicate constitutionally protected behalf of a prisoner. Mail from a county clerk simply does

legal mail rights. Cf. Boswell v. Mayer, 169 F.3d 384, 388-89 not implicate a prisoner’s right of access to the courts, of

(6th Cir. 1999) (upholding prison policy of treating mail from petitioning the government to redress grievances, or of

a state attorney general’s office as protected legal mail only competent representation by counsel. The administrative

No. 01-1269 Sallier v. Brooks, et al. 11 12 Sallier v. Brooks, et al. No. 01-1269

matters about which one generally communicates with a We recognize that the Seventh Circuit has stated in dicta

county clerk or register of deeds, i.e., birth, marriage, or death that mail from court personnel can be treated as general

certificates, tax and real estate services, automobile title and correspondence unless it is designated according to prison

registration, etc., are not the types of legal matters that raise policy as “Special Mail - Open only in the presence of the

heightened concern or constitutional protection. inmate,” because mail from court personnel is generally a

matter of public record. See Martin v. Brewer, 830 F.2d 76,

We find that as a general matter and as applied to Claims 78-79 (7th Cir. 1987); Castillo v. Cook County Mail Room

G, H, J, L, and N in this case, mail from a county clerk or Dept., 990 F.2d 304, 306-07 (7th Cir. 1993) (calling the

register of deeds does not implicate constitutionally protected Martin decision non-binding as dicta on this point, and

legal mail rights. Given the nature of a county clerk’s office reversing a district court’s dismissal of a prisoner complaint

and given that there was no specific indication to the contrary alleging two letters from a federal district court and one from

marked on the envelope, the correspondence from the county the United States Department of Justice were opened outside

clerks and registers of deeds in this case could be opened his presence); but see Keenan v. Hall, 83 F.3d 1083, 1094

pursuant to the regular mail policy without violating Sallier’s (9th Cir. 1996)(citing Martin for the proposition that “mail

First Amendment rights. from the courts, as contrasted to mail from a prisoner’s

lawyer, is not legal mail”). However, prior decisions from

As a matter of law, therefore, the defendants cannot be our court have used the term “legal mail” to include mail from

liable under Claims G, H, J, L, and N. These claims should the courts and have expressed disagreement with Martin’s

not have been submitted to the jury and, accordingly, the jury rationale that mail from a court is automatically a matter of

verdict on these claims must be set aside. public record. See Bell-Bey, 87 F.3d 832 (referring

throughout the opinion to mail from a prisoner to his

D. Claims O through T: Correspondence from State designated attorney as well as to any state or federal court as

and Federal Courts legal mail); Boswell, 169 F.3d at 389-90 (“Unlike mail from

the ACLU, courts, defense attorneys, and so forth, mail from

In these claims, Sallier alleged that on various dates Prosecuting Attorneys and the Attorney General will almost

between December 22, 1995, and February 5, 1996, he always consist of documents in the public record.”).

received mail from state and federal courts that was opened

outside of his presence. The status of such mail presents the Indeed, we can imagine a situation in which a court

most difficult question in this appeal, because it will corresponds with a prisoner before filing the prisoner’s

frequently, but not necessarily, involve a currently pending complaint because some administrative requirement, such as

legal matter affecting the prisoner’s rights. See Bell-Bey v. submitting an in forma pauperis affidavit, paying the filing

Williams, 87 F.3d 832, 837-38 (6th Cir. 1996); see also fee, or signing the complaint, has not been met. In that

Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir. 1976) (holding situation, the complaint is not yet a public record, and prison

that an inmate’s right of access to the courts requires that officials have no legitimate penological interest in reading the

incoming prisoner mail from courts, attorneys, prosecuting correspondence before it is. See Turner v. Safely, 482 U.S. 78

attorneys, and probation or parole officers be opened only in (1987) (prison officials must articulate some legitimate reason

the presence of the inmate). for interfering with prisoners’ communications). In order to

guard against the possibility of a chilling effect on a

prisoner’s exercise of his or her First Amendment rights and

No. 01-1269 Sallier v. Brooks, et al. 13 14 Sallier v. Brooks, et al. No. 01-1269

to protect the right of access to the courts, we hold that mail component of the judicial process and, therefore, that as a

from a court constitutes “legal mail” and cannot be opened matter of law, mail from an attorney implicates a prisoner’s

outside the presence of a prisoner who has specifically protected legal mail rights. See Kensu, 87 F.3d at 174

requested otherwise. (referring to a prisoner’s right to protect the contents of

correspondence with an attorney as a “fundamental right”).

E. Claims I, K, and M: Correspondence from There is no penological interest or security concern that

Attorneys justifies opening such mail outside of the prisoner’s presence

when the prisoner has specifically requested otherwise.

As to these three claims,Sallier alleged that on July 26,

1995, August 29, 1995, and November 7, 1995, he received III. Qualified Immunity

mail from an attorney that was opened outside of his

presence. Such correspondence is, of course, the very essence Given our conclusion that Claims I, K, N, and O through T

of “legal mail.” See Kensu, 87 F.3d at 174; Knop, 977 F.2d involve “legal mail,” we now turn to the defendants’ qualified

at 1012. Moreover, in Knop, we held that a prisoner may not immunity defense. Government officials who perform

be required to designate ahead of time the name of the discretionary functions are generally protected from liability

attorney who will be sending the prisoner confidential legal for civil damages as long as their conduct does not violate

mail. Id. In fact, we even implied in Muhammad v. Pitcher, “clearly established statutory or constitutional rights of which

35 F.3d 1081 (1994), that a prison policy allowing inmates to a reasonable person would have known.” Harlow v.

be present when mail from their attorneys was opened was Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is

constitutionally required, and we held that mail from the a purely legal question to be determined prior to trial, see

Attorney General’s office required similar protection because Donta v. Hooper, 774 F.2d 716, 719 (6th Cir. 1985), and a

of the potentially confidential nature of such correspondence. plaintiff bears the burden of proving that a clearly established

Id. at 1083. right existed at the time a defendant's actions took place. See

Tucker v. Callahan, 867 F.2d 909, 913 n.3 (6th Cir. 1989). In

We are not alone in this conclusion. Although courts in determining whether a constitutional right is clearly

other circuits have embraced varying definitions of “legal established at the time of the actions in question, we “look

mail,” there is general agreement that mail from a prisoner’s first to decisions of the Supreme Court, then to decisions of

attorney is always included in such a definition. See, e.g., this Court and other courts within our circuit, and finally to

Keenan, 83 F.3d at 1094 (stating mail from a prisoner’s decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536,

lawyer is legal mail); Lemon v. Dugger, 931 F.2d 1465, 1466 539 (6th Cir. 1994). A court need not have held that the very

(11th Cir. 1991) (same); Jensen, 648 F.2d at 1182 (same). action in question is unlawful if, in light of pre-existing law,

When the Supreme Court considered the question of the unlawfulness is apparent. See Dickerson v. McClellan,

incoming legal mail in Wolff, 418 U.S. at 576-77, it 101 F.3d 1151, 1158 (6th Cir. 1996).

concluded that a prison policy requiring an inmate to be

present when mail from his attorney is opened adequately As we have recently observed:

protects the inmate’s constitutional rights.

Qualified immunity involves a three-step inquiry. First,

We find that the prisoner's interest in unimpaired, we determine whether, based upon the applicable law,

confidential communication with an attorney is an integral the facts viewed in the light most favorable to the

No. 01-1269 Sallier v. Brooks, et al. 15 16 Sallier v. Brooks, et al. No. 01-1269

plaintiffs show that a constitutional violation has Circuit Court of Appeals as legal mail, although the status of

occurred. Second, we consider whether the violation the mail in question was not at issue in the case. See id. at

involved a clearly established constitutional right of 609. In Muhammad, a 1994 opinion, we observed that other

which a reasonable person would have known. Third, we courts “have consistently recognized that ‘legal mail’ includes

determine whether the plaintiff has offered sufficient correspondence from elected officials and government

evidence “to indicate that what the official allegedly did agencies, including the offices of prosecuting officials such as

was objectively unreasonable in light of the clearly state attorneys general.” 35 F.3d at 1083. We emphasized in

established constitutional rights.” that case that a prisoner has a fundamental interest in

maintaining the confidentiality of correspondence with the

Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quoting attorney general, just as with other legal assistance

Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en organizations. Id. Again, however, the status of mail

banc). As noted above, the first step of the inquiry is met for received from a court was not directly in issue.

Sallier’s claims involving mail from the courts and counsel:

the facts viewed in the light most favorable to him show that On the other hand, a panel of this court held in an

a constitutional violation occurred. See Saucier v. Katz, 533 unpublished 1993 opinion that a prisoner failed to state a

U.S. 194, 201 (2001) (“In the course of determining whether constitutional claim when she alleged that mail received from

a constitutional right was violated on the premises alleged, a the courts had been opened outside of her presence. See

court might find it necessary to set forth principles which will Meckley v. FCI Lexington Mailroom Staff, 1993 WL 187945

become the basis for a holding that a right is clearly at *2 (6th Cir. 1993). In that case, a prisoner challenged the

established. This is the process for the law's elaboration from constitutionality of applying to court mail the presumption

case to case, and it is one reason for our insisting upon that all incoming mail can be opened unless it is marked with

turning to the existence or nonexistence of a constitutional “Special Mail - Open only in the presence of the inmate.”

right as the first inquiry.”) Adopting the reasoning of the Seventh Circuit in Martin, 830

F.2d at 78-79, the panel in Meckley based its holding on the

The second step of the inquiry is whether the violation, assumption that court mail generally contains matters of

when it occurred, involved a clearly established constitutional public record. Meckley, 1993 WL 187945 at *2.

right. All of Sallier’s claims in this case occurred on or

before February 5, 1996. At that point in time, this court had Given this lack of clarity with regard to the status of

struggled with the issue of legal mail in our published prisoner mail received from courts at the time that the

opinions in Knop, Lavado, and Muhammad. In Knop, a 1992 plaintiff’s mail was opened in this case, we conclude that the

decision, we noted that a prisoner’s right to receive mail is defendants are entitled to qualified immunity from liability on

protected by the First Amendment and that the attorney-client claims involving mail from the courts. Although there is

relationship is shielded from unwarranted intrusion in language in Lavado and Mohammad suggesting that mail

criminal settings by the Sixth Amendment. 977 F.2d at 1012. from a court is legal mail, the holding in Meckley, even

In 1993 in Lavado, when faced with a qualified immunity though the opinion was unpublished, was directly to the

issue, we held that it was clearly established as of 1987 that contrary. Furthermore, at the time Sallier’s mail was opened,

a prisoner’s mail could not be opened and read in an arbitrary the Seventh Circuit had stated in widely-quoted dicta that

and capricious fashion. 992 F.2d at 610. Both parties and the mail from courts was not “legal mail.” See Martin, 830 F.2d

court in Lavado referred to correspondence from the Eleventh at 78-79. Nothing from the Supreme Court, or in our circuit

No. 01-1269 Sallier v. Brooks, et al. 17 18 Sallier v. Brooks, et al. No. 01-1269

precedent, or from our sister circuits at the time clearly IV. Failure to Grant Remittitur or a New Trial

established that mail from a court was protected as legal mail.

We review a remittitur ruling for abuse of discretion. See

Attorney mail is, of course, an altogether different story. Gregory v. Shelby County, Tenn., 220 F.3d 433, 443 (6th Cir.

We had clearly indicated in Muhammed that attorney mail 2000). “A trial court is within its discretion in remitting a

was “legal mail” and that a prisoner is entitled to be present verdict only when, after reviewing all evidence in the light

when his attorney mail is opened. Indeed, the defendants most favorable to the awardee, it is convinced that the verdict

concede, although arguing that the law with regard to “legal is clearly excessive, resulted from passion, bias or prejudice;

mail” is generally unclear, that “the most that can be said is or is so excessive or inadequate as to shock the judicial

that attorney mail was clearly established as legal mail.” conscience of the court.” Id. We find that the jury award in

this case, $750 in compensatory damages and $250 in

This analysis brings us to the third step of the qualified punitive damages for each of the three claims properly

immunity: whether Sallier has offered sufficient evidence to submitted, is not clearly excessive, does not show the jury

indicate that the defendants’ actions were objectively acted from passion, bias, or prejudice, and does not shock our

unreasonable in light of the clearly established constitutional judicial conscience.

rights. In all three claims involving mail from counsel, the

defendants listed the letters on the legal mail log as legal mail. We likewise review the denial of a motion for a new trial

They simply failed to follow established procedures requiring for abuse of discretion. See Barnes v. Owens-Corning, 201

Sallier’s presence before the letters were opened. Such a F.3d 815, 820 (6th Cir. 2000). When the new trial motion is

failure, after recognition of the letters as protected legal mail, based upon a challenge to jury instructions, we must evaluate

is objectively unreasonable, and we conclude that the the jury instructions to determine whether, taken as a whole,

defendants are not entitled to qualified immunity on these they were misleading or provided an inadequate

three claims. understanding of the law. See Bowman v. Koch Transfer Co.,

862 F.2d 1257, 1263 (6th Cir. 1988). The defendants first

In sum, the defendants are entitled to qualified immunity argue that the legal mail instruction was in error. We agree

for Claims O through T because it was not clearly established and, as stated above, find that the court should have

at the time that mail from the courts was protected legal mail, determined which letters were legal mail and submitted only

and the district court erred in holding to the contrary. those claims to the jury. As for the rest of the defendants’

Accordingly, Claims O through T should not have been complaints concerning the jury instructions – namely, those

submitted to the jury, and the jury verdict on those claims related to specific intent, prior convictions, and government

must be vacated. However, the defendants are not entitled to witnesses, as well as the contention that the district court

qualified immunity for Claims I, K, and M; those claims were should have used a special verdict form with separate sections

properly submitted to the jury for a determination on the for the two defendants – we find no error. When taken as a

factual question of whether the letters in question were whole, the jury instructions, with the exception of the legal

opened by the defendants outside of Sallier’s presence. The mail instruction, were not misleading and did not provide an

jury’s verdict on Claims I, K, and M is therefore affirmed. inadequate understanding of the law.

The defendants also argued for a new trial based on

evidentiary rulings involving hearsay and the best evidence

No. 01-1269 Sallier v. Brooks, et al. 19

rule. After a careful review of the record, we cannot say that

the district court abused its discretion in denying the motion

for a new trial that challenged these rulings.

CONCLUSION

For the reasons set out above, the jury verdict on Claims A

through H, J, L, and N through T is set aside, and the

judgment in the plaintiff’s favor on those claims is

REVERSED; the jury verdict on Claims I, K, and M is

sustained, and the judgment in the plaintiff’s favor on those

claims, for a total of $3,000, is AFFIRMED; and the award of

attorneys fees, which, pursuant to 42 U.S.C. § 1997e(d)(2),

cannot exceed 150 percent of the judgment, is hereby reduced

to $4,500.