The opinion
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-1889
___________
Dennis James Gardner, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska
Mary Howard; John Dahm, *
Warden, Omaha Correctional *
Center; Harold W. Clarke, *
Director, Nebraska Department *
of Correctional Services, *
*
Defendants - Appellants. *
___________
Submitted: November 22, 1996
Filed: March 12, 1997
___________
Before BEAM and LOKEN, Circuit Judges, and MOODY,* District Judge.
___________
LOKEN, Circuit Judge.
Nebraska inmate Dennis Gardner seeks relief under 42 U.S.C.
§ 1983, alleging that prison officials have twice opened his
incoming legal mail. Defendants appeal the district court's denial
of summary judgment on qualified immunity grounds. We reverse.
I.
*
The HONORABLE JAMES M. MOODY, United States District Judge
for the Eastern District of Arkansas, sitting by designation.
Mary Howard is a Mail Clerk in the Omaha Correctional Center
mailroom. On March 1, 1995, she accidentally opened an incoming
-2-
envelope containing confidential correspondence from Gardner's
attorney. Realizing her mistake, Howard stapled the envelope shut
without reading or inspecting its contents. Howard attached a
Confidential Mail Receipt Form to the envelope and delivered it to
Gardner, who then filed a grievance. Warden John Dahm upheld the
grievance, apologizing to Gardner in writing for this mistake and
advising mailroom staff of the error. Unsatisfied, Gardner filed
a step two grievance with the Department of Correctional Services.
Director Harold Clarke's subordinate in charge of responding to
such grievances denied further relief, advising Gardner, "I do not
know what further action you request."
On April 13, 1995, Gardner's mail included an envelope from a
court which had tape over the sealing flap. Gardner wrote on the
Confidential Mail Receipt Form that the envelope "[a]ppeared to be
opened." A case worker wrote on the form, "Yes, [the envelope] was
taped," and returned the form to Howard in the mailroom. The
mailroom opens mail with a slitting machine. Knowing that some
senders tape envelope flaps down, Howard sent Gardner a note asking
whether the top of the envelope had been slit. Gardner did not
respond. An affidavit by the case worker submitted in support of
summary judgment states that the envelope was not slit.
Gardner then filed this § 1983 action for damages and
injunctive relief against Howard, Dahm, and Clarke in their
individual and official capacities. Defendants moved for summary
judgment, submitting affidavits explaining the Department's policy
regarding incoming legal mail and setting forth facts regarding the
March 1 and April 13 incidents involving Gardner's mail. Gardner,
represented by counsel, submitted a two-page affidavit averring:
4. In spite of the aforementioned grievance
[concerning the March 1 incident], on or about April 13,
-3-
1995 your affiant received legal mail from the United
States District Court which had been opened prior to his
receipt thereof.
-4-
4
5. On good faith, information and belief, your
affiant is aware that other inmates have had their legal
mail opened prior to the receipt thereof.
Gardner's affidavit concluded with a request for discovery on
whether "the incidents of unlawful opening of legal mail are of
such quantity and degree . . . that constitutionally sufficient
remedies should have been implemented but were not." The district
court denied defendants summary judgment on Gardner's individual
capacity claims. Defendants appeal the qualified immunity portion
of that ruling.
II.
Qualified immunity shields government officials from § 1983
damage liability unless their conduct violates "clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
We may consider by interlocutory appeal whether conduct fairly
attributable to defendants for summary judgment purposes violated
clearly established law. See Behrens v. Pelletier, 116 S. Ct. 834,
842 (1996); Allison v. Department. of Corrections, 94 F.3d. 494,
496 (8th Cir. 1996).
Gardner alleges that defendants violated his clearly
established constitutional right not to have confidential legal
mail opened outside his presence. In Wolff v. McDonnell, 418 U.S.
539, 576-77 (1974), the Supreme Court considered the question of
incoming legal mail and concluded:
[T]he question is whether, assuming some constitutional
right is implicated, it is infringed by the procedure now
found acceptable by the State. . . . [W]e think that [the
prison officials], by acceding to a rule whereby the
-5-
5
inmate is present when mail from attorneys is inspected,
have done all, and perhaps even more, than the
Constitution requires.
-6-
6
Here, defendants' undisputed affidavits establish the relevant
policy of the Nebraska Department of Correctional Services.
Properly marked legal mail is opened only in the presence of the
inmate. When such mail is received, mailroom staff attach a
Confidential Mail Receipt Form to the envelope, and a prison
official delivers it to the inmate where it is opened and inspected
for contraband in his presence. All other mail is opened in the
mailroom by a slitting machine and inspected for contraband before
delivery. As our decision in Harrod v. Halford, 773 F.2d 234, 235-
36 (8th Cir. 1985), cert. denied, 476 U.S. 1143 (1986), makes
clear, the Department's policy meets or exceeds the minimum
constitutional standards under Wolff. Given defendants' proof of
a general policy that meets constitutional requirements, the
qualified immunity issue turns on the specific incidents in
question and must be addressed separately for each defendant. See
Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir. 1993).
Warden Dahm. Warden Dahm received Gardner's initial grievance
and upheld it, concluding that Gardner's March 1 letter should not
have been opened outside his presence. Dahm did not rule on
Gardner's step two grievance. There is no evidence he even knew of
the April 13 incident, as to which Gardner filed no grievance.
Gardner's unsupported assertion that he has "information and [a]
belief" that other inmates' legal mail has been opened is not the
kind of evidentiary affidavit that will defeat a properly supported
motion for summary judgment. See JRT, Inc. v. TCBY Systems, Inc.,
52 F.3d 734, 738 (8th Cir. 1995); Fed. R. Civ. P. 56(e); 6 MOORE'S
FEDERAL PRACTICE, Part 2, ¶ 56.22[1], at pp. 56-743-46 (2d ed. 1996).
Thus, the summary judgment record contains no evidence that Dahm
knowingly deprived Gardner of a constitutional right, was
deliberately indifferent to a violation, or failed to supervise or
train his subordinates. Dahm is entitled to qualified immunity.
See Ricker v. Leapley, 25 F.3d 1406, 1412 (8th Cir. 1994).
-7-
7
-8-
8
Director Clarke. Director Clarke delegated the task of
responding to Gardner's step two grievance to another Department
official. Thus, Clarke had no involvement in this specific
dispute. He is the Director of a Department that has promulgated
a constitutionally appropriate policy regarding incoming inmate
legal mail. Clarke is entitled to qualified immunity.
Mail Clerk Howard. Howard violated Department policy by
inadvertently opening an envelope containing Gardner's incoming
legal mail. Gardner was upset that Dahm did not punish Howard
through the grievance process for her error. But there is no
§ 1983 liability for violating prison policy. Gardner must prove
that Howard violated his constitutional right to receive mail or to
access the courts.
In Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981),
this court cited Wolff for a broad proposition: "Privileged
prisoner mail, that is mail to or from an inmate's attorney and
identified as such, may not be opened for inspections for
contraband except in the presence of the prisoner." However, the
record in Jensen included evidence of deliberate, repeated opening
of an inmate's confidential, well-marked attorney mail. We have
never held or suggested that an isolated, inadvertent instance of
opening incoming confidential legal mail will support a § 1983
damage action. Rather, we agree with other circuits that an
"isolated incident, without any evidence of improper motive or
resulting interference with [the inmate's] right to counsel or to
access to the courts, does not give rise to a constitutional
violation." Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990);
see Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975),
cert. denied, 424 U.S. 973 (1976).
-9-
9
The act of opening incoming mail does not injure an inmate's
right to access the courts. The policy that incoming confidential
legal mail should be opened in inmates' presence instead serves the
-10-
10
prophylactic purpose of assuring them that confidential attorney-
client mail has not been improperly read in the guise of searching
for contraband. See Harrod, 773 F.2d at 235; Morgan, 516 F.2d at
1371. Given this limited purpose, inadvertent opening of legal
mail cannot be actionable under § 1983, particularly when it is
followed by the corrective action Howard took after she opened
Gardner's envelope on March 1, because "[t]o assert a successful
claim for denial of meaningful access to the courts . . . an inmate
must demonstrate that he suffered prejudice." Berdella v. Delo,
972 F.2d 204, 210 (8th Cir. 1992). Regarding the second incident
on April 13, Gardner has no evidence that Howard opened or taped
that envelope. Howard is entitled to qualified immunity.1
Gardner's Claim for Injunctive Relief. Qualified immunity
bars Gardner's damage claims but not his claim for injunctive
relief. We have jurisdiction to consider the denial of summary
judgment on this claim if it is "inextricably intertwined" with the
issue of qualified immunity. See Swint v. Chambers County Comm'n,
115 S. Ct. 1203, 1212 (1995); Kincade v. City of Blue Springs, 64
F.3d 389, 394-95 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565
(1996).
Defendants have demonstrated that the Department's policy
meets or exceeds constitutional requirements. Thus, only probative
evidence of a persistent, unconstitutional disregard of that policy
would defeat summary judgment dismissing Gardner's claim for
injunctive relief. Gardner has evidence that one piece of incoming
1
Gardner argues that Howard is not eligible for qualified
immunity because she was not engaged in a discretionary act, citing
Howard v. Adkison, 887 F.2d 134, 140 (8th Cir. 1989). However,
Howard exercised discretion when she determined what incoming mail
qualified as confidential legal mail under the Department's policy.
-11-
11
legal mail was inadvertently slit open, contrary to the policy, and
another was taped shut by an unknown person. Gardner also avers
-12-
12
"that other inmates have had their legal mail opened prior to the
receipt thereof," but that assertion is unsupported and of no
evidentiary value. Thus, for the same reasons that qualified
immunity bars Gardner's damage claims, defendants are entitled to
summary judgment on the merits of his injunction claim.
Gardner suggests that he is entitled to discovery to support
his assertion of widespread violations of Department policy.
However, paragraph 5 of his affidavit is inadequate to justify
denial or delay of summary judgment. If prison officials routinely
ignore the Department's policy regarding incoming legal mail,
inmate Gardner could have submitted one or more Rule 56(e)
affidavits detailing other violations, like the supporting
affidavit from ten other inmates in Weiler v. Purkett, No. 96-1022
(8th Cir. Jan. 3, 1997). At a minimum, he could have submitted a
Rule 56(f) affidavit explaining in detail what evidence could be
obtained from other inmates if the court delayed a summary judgment
ruling. Absent that kind of specific showing, Rule 56(f) does not
condone a fishing expedition through the Department's grievance
files searching for documents that might confirm Gardner's
"information and belief." See Humphreys v. Roche Biomed. Labs.,
Inc., 990 F.2d 1078, 1081 (8th Cir. 1993); Nickens v. White, 622
F.2d 967, 970 (8th Cir.), cert. denied, 449 U.S. 1018 (1980).
Paragraphs 1 and 3 of the district court Order dated February
23, 1996, are reversed. The case is remanded with instructions to
enter judgment in favor of all defendants.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-13-
13