Bieregu v. Reno

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Precedential or Non-Precedential: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

sufficiently clear that a reasonable prison official would

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.