Jones v. Brown

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

8-24-2006

Jones v. Brown

Precedential or Non-Precedential: Precedential

Docket No. 03-3823

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PRECEDENTIAL

IN THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

NO. 03-3823

RONALD C. JONES,

Appellant

v.

M. BROWN, Internal Affairs Ofc.;

S. SOOTKOOS, Associate Warden;

ROY L. HENDRICKS, Warden

On Appeal From the United States

District Court

For the District of New Jersey

(D.C. Civil Action No. 02-cv-03045)

District Judge: Hon. Garrett E. Brown, Jr.

NOS. 04-4426 and 04-4493

JAMAAL W. ALLAH; KEVIN JACKSON;

LENNIE KIRKLAND

v.

*RICHARD J. CODEY, Acting Governor, N.J. (Official

Capacity); JAMES MCGREEVEY (Personal/Individual

Capacity); DEVON BROWN,Commissioner, Dept. of Corr.,

N.J. (Official/Personal/ & Individual Capacity); TERRANCE

MOORE, Administrator, East Jersey State Prison, Rahway, N.J.

(Official/Personal & Individual Capacity); JOHN/JANE DOES

(Official/Personal & Individual Capacity); ROY L.

HENDRICKS; ROBERT SHABBICK ; WAYNE

SANDERSON

*(Pursuant to F.R.A.P. 43(c))

Devon Brown, Terrance Moore, Roy L. Hendricks,

Robert Shabbick, Wayne Sanderson

Appellants in No. 04-4426

Jamaal W. Allah; Kevin Jackson; Lennie Kirklan,

Appellants in No. 04-4493

2

On Appeal From the United States

District Court For the District of New Jersey

(D.C. Civil Action No. 02-cv-05298)

District Judge: Hon. William H. Walls

Argued April 25, 2006

BEFORE: FUENTES, STAPLETON and

ALARCON,* Circuit Judges

(Filed: August 24, 2006 )

Ronald C. Jones (Argued)

Northern State Prison

168 Frontage Road

P.O. Box 2300

Newark, NJ 07114-2300

Appellant Pro Se in No. 03-3823

Peter C. Harvey

Patrick DeAlmeida

Christopher C. Josephson (Argued)

* Hon. Arthur L. Alarcon, Senior United States Circuit Judge

for the Ninth Circuit, sitting by designation.

3

Office of New Jersey Attorney General

P.O. Box 112

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Attorneys for Appellants in No. 04-4426 and Appellees in

Nos. 03-3823 and 04-4493

Shavar D. Jeffries (Argued)

Seton Hall Law School

833 McCarter Highway

Newark, NJ 07102

Attorney for Appellants in No. 04-4493 and Appellees in

No. 04-4426

Gerald J. Pappert

Calvin R. Koons

John O.J. Shellenberger

John G. Knorr, III

Office of Attorney General of Pennsylvania

15th Floor - Strawberry Square

Harrisburg, PA 17120

Attorneys for Amicus Curiae

Commonwealth of Pennsylvania

Amicus Appellant in No. 04-4426 and Amicus Appellee in

Nos. 03-3823 and 04-4493

Aaron Christopher Wheeler

James S. Pavlichko

Derrick Dale Fontroy

Theodore B. Savage

Graterford SCI

4

P.O. Box 244

Graterford, PA 19426

Pro Se Amici Appellees in Nos. 03-3823 and 04-4426

Edward L. Barocas

American Civil Liberties Union of New Jersey Foundation

P.O. Box 750

Newark, NJ 07101

Attorney for ACLU NJ and Association of Criminal Defense

Lawyers

Amici Appellants in No. 04-4426 and Amici Appellees in

Nos. 03-3823 and 04-4493

OPINION OF THE COURT

STAPLETON, Circuit Judge:

We have before us two cases that have been consolidated

on appeal. 1 While the District Courts in these cases both

addressed the constitutionality of a New Jersey regulation

1

A third appeal that was originally consolidated, Taylor

v. Oney, No. 04-2062, has been severed and is being resolved

in a not precedential opinion.

5

governing the processing of incoming inmate legal mail, they

reached conflicting conclusions. These consolidated appeals

present two principal issues. First, do state prisoners have an

interest protected by the First Amendment in being present when

their incoming legal mail is opened? We conclude that our prior

case law establishes that they do. Second, may New Jersey open

prisoners’ legal mail outside of the prisoners’ presence pursuant

to a state policy intended to protect the safety and security of its

prisons by reducing the risk of anthrax contamination? We

conclude that New Jersey has not shown that its legal mail

policy is reasonably related to its interest in protecting the safety

and security of its prisons. Accordingly, New Jersey’s legal

mail policy does not withstand constitutional scrutiny. We will

affirm the grant of injunctive relief in Allah and reverse the

District Court’s summary judgment for the defendants in Jones.2

I.

A.

Prior to October 19, 2001, New Jersey regulations

governing the Department of Corrections required that

“[i]ncoming legal correspondence be opened and inspected in

front of the inmate to whom it is addressed.” See 33 N.J. Reg.

4033(a) (Oct. 23, 2001).

2

Plaintiff Jones appeals from the District Court’s

resolution of a number of other issues. We agree with its

resolution of those issues and will affirm its judgment with

respect to them for essentially the reasons articulated in the

opinion of the District Court.

6

On September 11, 2001, in response to the terrorist

attacks on the World Trade Center and Pentagon and associated

disruptions, the Acting Governor of New Jersey, Donald

DiFrancesco, declared a state of emergency in New Jersey. In

that declaration, Executive Order No. 131-2001, Governor

DiFrancesco directed

that the heads of any agency or instrumentality of

the State government with authority to promulgate

rules may, for the duration of the Executive

Order, subject to my prior approval and in

consultation with the State director of Emergency

Management, waive, suspend or modify any

existing rule the enforcement of which would be

detrimental to the public welfare during this

emergency, notwithstanding the provisions of the

Administrative Procedure Act or any law to the

contrary.

Executive Order No. 131-2001 (Sept. 11, 2001) (emphasis

added).

In September and October 2001, one or more individuals

mailed a string of letters containing anthrax through the postal

system. At least four letters containing anthrax were processed

in the Hamilton, N.J. mail processing center. In all, five people

died and thirteen others were sickened by the mailings. In New

Jersey, there were no fatalities, but there were five confirmed

and two suspected infections.

In response to these anthrax mailings, the Acting

7

Commissioner of the New Jersey Department of Corrections,

acting under the authority provided by the statewide declaration

of emergency, issued an amendment to New Jersey’s legal mail

policy that suspended the regulatory requirement that legal mail

be opened in the addressee prisoner’s presence. The statement

accompanying the amendment reads, in pertinent part:

N.J.A.C. 10A:18-3.4(b) requires that incoming

legal correspondence be opened and inspected in

front of the inmate to whom it is addressed.

Suspension of N.J.A.C. 10A:18-3.4(b) is

necessary to protect the health, safety and welfare

of the people and to aid in the prevention of loss

to and destruction of property . . . .

This special adopted amendment is

necessary in order to inhibit the possible spread of

contamination should a toxic biological substance

be introduced by way of incoming legal

correspondence addressed to an inmate who is

incarcerated at a facility of the Department of

Corrections. The Department is establishing

remote areas at each facility for the processing of

all incoming correspondence by trained staff

members. Inmates shall not be present or

involved in the processing or opening of any

incoming correspondence.

33 N.J. Reg. 4033(a) (Oct. 23, 2001). The regulation now reads,

in pertinent part:

8

Inspection of incoming legal correspondence

(a) Incoming legal correspondence shall be

opened and inspected for contraband only.

(b) Incoming legal correspondence shall

not be read or copied. The content of the

envelope may be removed and shaken loose to

ensure that no contraband is included. After the

envelope has been inspected the correspondence

shall be given to the inmate.

N.J. Admin. Code § 10A:18-3.4.

The Assistant Commissioner of the Department of

Corrections issued a memo to all Corrections administrators

providing guidelines for the handling of legal mail. That memo

specifies:

1. A Correctional Officer shall open all

incoming legal correspondences in the

mailroom.

2. The officer shall log the information in

accordance with current practices.

3. The incoming legal correspondence shall

be opened and inspected for contraband .

. . . The contents shall not be read or

censored by the officer.

9

4. After the envelope has been inspected, the

officer shall seal the envelope with tamper

proof evidence tape. . . .

***

5. After the inspection has been completed

the correspondence shall be delivered to

the inmate.

Memorandum from Jeffrey J. Burns, Assistant Comm’r, N.J.

Dep’t of Corrections, to All Administrators (Oct. 19, 2001);

App. Brown at Ra92-93.

The amendment indicates that the suspension of former

§ 10A:18-3.4(b) will remain in effect until the end of the state

of emergency declared on September 11, 2001 in Executive

Order No. 131-2001. To date, the state of emergency remains

in force and the suspension of former § 10A:18-3.4(b) remains

in effect.

B.

The plaintiffs in Allah 3 and the plaintiff in Jones are

inmates in the New Jersey correctional system whose legal mail

has been opened outside their presence pursuant to New Jersey’s

revised legal mail policy. Both sets of plaintiffs filed suit in

3

Jamaal W. Allah, Kevin Jackson, and Lennie Kirkland

(“the Allah plaintiffs”).

10

New Jersey District Courts against state correctional officials4

asserting, inter alia, that the legal mail policy violates their First

Amendment right of free speech. They sought injunctive and

monetary relief.

In Allah, on cross-motions for judgment on the pleadings,

the District Court ruled that the legal mail policy violated the

prisoners’ constitutional right to be present when their legal mail

is opened.5 It accordingly enjoined the state officials from

enforcing the challenged policy. However, citing the

uncertainty necessarily involved in assessing the risk of anthrax

4

The defendants in Allah are Devon Brown, the

Commissioner of the New Jersey Department of Corrections,

Terrance Moore, the now former Administrator of East Jersey

State Prison (“EJSP”), Roy Hendricks, the now former

Administrator of New Jersey State Prison (“NJSP”), Robert

Shabbick, a corrections sergeant at EJSP, and Wayne

Sanderson, a corrections sergeant at NJSP. The defendants in

Jones are Roy Hendricks, Steven Sootkoos, Associate

Administrator of NJSP, and Matthew Brown, an Investigator

with the Special Investigations Division at NJSP.

5

The District Court in Allah appears to have effectively

converted the cross-motions for judgment on the pleadings into

cross-motions for summary judgment. Neither party objects to

this treatment on appeal and we assume it not to have been an

abuse of discretion. See Rubert-Torres v. Hospital San Pablo,

Inc., 205 F.3d 472, 475-76 (1st Cir. 2000); 5C Wright & Miller,

Federal Practice & Procedure § 1371 at 275.

11

contamination at the time of the policy’s adoption, the Court

granted the defendants’ motion to dismiss the plaintiffs’ claims

for monetary damages on the basis of qualified immunity.

In Jones, by contrast, the District Court granted summary

judgment to the Defendants on all of Jones’ claims. In

particular, the District Court concluded that New Jersey’s legal

mail policy is a valid exercise of administrative discretion.

Before us now are the Allah defendants’ appeal of the

District Court’s grant of injunctive relief, the Allah plaintiffs’

cross-appeal of the dismissal on qualified immunity grounds of

their claim for monetary damages, and plaintiff Jones’ appeal of

the District Court’s grant of summary judgment to the

defendants. We have jurisdiction over the grant of injunctive

relief in Allah pursuant to 28 U.S.C. § 1292(a) and pendent

appellate jurisdiction over the plaintiffs’ cross-appeal because

the facts regarding the merits of the injunction order are

inextricably intertwined with those concerning qualified

immunity. See E.I. DuPont de Nemours & Co. v. Rhone

Paulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 203

(3d Cir. 2001). The District Court’s grant of summary judgment

in Jones is a final order over which we exercise jurisdiction

pursuant to 28 U.S.C. § 1291.

II.

The Supreme Court’s decision in Turner v. Safley, 482

U.S. 78, 84 (1987), governs our review of New Jersey’s legal

mail policy. See Beard v. Banks, 126 S.Ct. 2572, 2577 (2006).

The Turner Court emphasized that “federal courts must take

12

cognizance of the valid constitutional claims of prison inmates.”

482 U.S. at 84. However, the Court also recognized that prison

administration is “an inordinately difficult undertaking,” aspects

of which are “peculiarly within the province of the legislative

and executive branches of government.” Id. at 85. In light of

these principles, the Court held that a prison regulation that

impinges on the constitutional rights of prisoners is nonetheless

valid, so long as the regulation “is reasonably related to

legitimate penological interests.” Id. at 89. The Turner analysis

presupposes “that the plaintiff inmate has demonstrated that a

constitutionally protected interest is at stake.” Dehart v. Horn,

227 F.3d 47, 51 (3d Cir. 2000) (en banc). Accordingly, in the

instant case, our threshold task is to determine whether the New

Jersey legal mail policy impinges on inmates’ constitutional

rights at all. If it does, we must then consider the policy’s

relationship to legitimate penological interests.

A.

The First Amendment, as incorporated in the Fourteenth,

prohibits states from “abridging the freedom of speech.” U.S.

Const. Amend. I. We held in Bieregu that state prisoners, by

virtue of their incarceration, “do not forfeit their First

Amendment right to use of the mails,” 59 F.3d at 1452, and that

a “pattern and practice of opening properly marked incoming

[legal] mail outside an inmate’s presence infringes

communication protected by the right to free speech.” 59 F.3d

at 1452. We stressed that a pattern and practice of opening

properly marked court mail is particularly troubling because it

“chills protected expression and may inhibit the inmate’s ability

to speak, protest, and complain openly, directly, and without

13

reservation with the court.” Id.

We reaffirm that holding of Bieregu today.6 A state

pattern and practice, or, as is the case here, explicit policy, of

opening legal mail outside the presence of the addressee inmate

interferes with protected communications, strips those protected

communications of their confidentiality, and accordingly

impinges upon the inmate’s right to freedom of speech. The

practice deprives the expression of confidentiality and chills the

inmates’ protected expression, regardless of the state’s good-

faith protestations that it does not, and will not, read the content

of the communications. This is so because “the only way to

ensure that mail is not read when opened . . . is to require that it

be done in the presence of the inmate to whom it is addressed.”

Id. at 1456 (citing Wolff v. McDonnell, 418 U.S. 539, 576-77

(1974)).

We reject the argument of amicus curiae, the

Commonwealth of Pennsylvania, that the Supreme Court’s

6

In Bieregu, we also ruled that a pattern and practice of

opening legal mail outside the addressee prisoner’s presence

impinges on the inmate’s right to court access under the First

Amendment right to petition clause and the Fourteenth

Amendment due process clause, independent of whether the

prisoner can show “actual injury” to his or her access to the

courts. 59 F.3d at 1455. However, as we later recognized in

Oliver, this alternative holding of Bieregu was subsequently

abrogated by the Supreme Court’s decision in Lewis v. Casey,

518 U.S. 343 (1996). Oliver, 118 F.3d at 178.

14

decision in Lewis v. Casey, 518 U.S. 343 (1996), and our

subsequent decision in Oliver v. Fauver, 118 F.3d 175 (3d Cir.

1997), require that the plaintiffs prove some injury-in-fact

beyond the infringement of constitutionally protected speech.

The Supreme Court in Casey ruled that in order to press a claim

for interference with the right to court access, a prisoner plaintiff

must allege that he or she has been actually injured in his or her

access to the courts, i.e., that he or she has been hindered in an

effort to pursue a nonfrivolous legal claim. 518 U.S. at 349-53.

Allegations that the state has not provided adequate

preconditions to effectuate the right of access to the court, such

as law libraries or legal services, are insufficient. Rather, the

inmate must show that his or her exercise of the right at issue,

the right of accessing the courts to secure judicial relief, has

been infringed in some consequential way. Id.

Following Casey, we ruled in Oliver v. Fauver, 118 F.3d

175 (3d Cir. 1997), that a prisoner could not support a claim for

denial of court access stemming from interference with legal

mail without producing evidence of actual injury to his access

to the courts. In so doing, we made clear that to the extent we

had ruled otherwise in Bieregu, that holding of Bieregu was

“effectively overruled.” Id. at 178. While we did not expressly

limit our statement that Bieregu was “effectively overruled” to

exclude its First Amendment holding, nothing in the reasoning

of Casey or Oliver suggests that a prisoner alleging that officials

have opened his legal mail outside of his presence and thereby

violated his First Amendment rights need allege any

consequential injury stemming from that violation, aside from

the violation itself. Unlike the provision of legal libraries or

legal services, which are not constitutional “ends in themselves,

15

but only the means for ensuring ‘a reasonably adequate

opportunity to present claimed violations of fundamental

constitutional rights to the courts,’” Casey, 518 U.S. at 351,

protection of an inmate’s freedom to engage in protected

communications is a constitutional end in itself.

B.

The fact that the legal mail policy burdens prisoners’

First Amendment rights does not, however, tell us whether the

policy is constitutional. Prisoners necessarily sacrifice many of

the constitutional rights available to non-incarcerated citizens.

See Banks, 126 S.Ct. at 2577-78. (“[I]mprisonment does not

automatically deprive a prisoner of certain constitutional

protections, including those of the First Amendment. But at the

same time the Constitution sometimes permits greater restriction

of such rights in a prison than it would allow elsewhere.”)

(citations omitted); Overton v. Bazzetta, 539 U.S. 126, 131

(2003) (“Many of the liberties and privileges enjoyed by other

citizens must be surrendered by the prisoner.”). The relevant

question, as articulated by the Supreme Court in Turner, is

whether the legal mail policy is “reasonably related to legitimate

penological interests.” 482 U.S. at 89.

Under the teachings of Turner, there are two steps to take

in determining whether a prison regulation is “reasonably related

to legitimate penological interests.” Id. “First, there must be a

‘valid, rational connection’ between the prison regulation and

the legitimate governmental interest put forward to justify it.

Thus, a regulation cannot be sustained where the logical

connection between the regulation and the asserted goal is so

16

remote as to render the policy arbitrary or irrational” or to

demonstrate that it “represents an exaggerated response to [the

asserted] objectives.” Turner, 482 U.S. at 89-90 (citation

omitted), 97-98. Thus, “a rational nexus between a regulation

and a legitimate penological interest is essential to its validity.”

Dehart v. Horn, 227 F.3d 47, 53 (3d Cir. 2000) (en banc).

On the other hand, “not all prison regulations that are

rationally related to [a legitimate state] interest pass Turner’s

‘overall reasonableness’ standard.” Id. If such a rational

relationship is found to exist, that “determination commences

rather than concludes our inquiry.” Id. The other three Turner

factors to be considered are (1) “whether inmates retain

alternative means of exercising the circumscribed right,” (2) the

burden on prison resources that would be imposed by

accommodating the right, and (3) “whether there are alternatives

to the regulation that ‘fully accommodate[] the prisoners’ rights

at de minimis cost to valid penological interests.” Id. at 51

(quoting from Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.

1999)).

“Of course, the Turner analysis is appropriate only in

cases where a prison policy is impinging on inmates’

constitutional rights” and Turner’s two-step assessment of

reasonableness must be made in light of “the inmate’s interest

in engaging in constitutionally protected activity.” Dehart, 227

F.3d at 51.

While the ultimate burden of persuasion with regard to

the reasonableness of a regulation resides with those

challenging it, Overton v. Bazzetta, 539 U.S. 126, 132 (2003),

17

the defendant administrators must “put forward” the legitimate

governmental interest alleged to justify the regulation, Turner,

482 U.S. at 89, and “‘demonstrate’ that the policy drafters

‘could rationally have seen a connection’ between the policy and

[that interest].” Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir.

2002). “[T]his burden, though slight, must ‘amount [] to more

than a conclusory assertion.’” Id. (quoting Waterman, 183 F.3d

at 218 n.9). As we explained in Wolf, satisfying this burden may

or may not require evidence; where the connection is obvious,

common sense may suffice:

[W]hile the connection may be a matter of

common sense in certain instances, such that a

ruling on this issue based only on the pleadings

may be appropriate, there may be situations in

which the connection is not so apparent and does

require factual development. Whether the

requisite connection may be found solely on the

basis of “common sense” will depend on the

nature of the right, the nature of the interest

asserted, the nature of the prohibition, and the

obviousness of its connection to the proffered

interest. The showing required will vary

depending on how close the court perceives the

connection to be.

Wolf, 297 F.3d at 308-09.

When neither common sense nor evidence demonstrates

a reasonable causal nexus – “where the logical connection

between the regulation and the asserted goal is so remote as to

18

render the policy arbitrary or irrational” or to demonstrate that

the regulation “represents an exaggerate[d] response” –

summary judgment for the defendant administrator is

inappropriate and the plaintiff inmate may be entitled to

injunctive relief. See, e.g., Ramirez v. Pugh, 379 F.3d 122, 130

(3d Cir. 2004) (“In the absence of a factual record, . . . we

cannot ignore the possibility that the proscription rationally

applies to such a small percentage of the . . . inmate population

that its connection to the government’s rehabilitative interest ‘is

so remote as to render [it] arbitrary or irrational.’”) (quoting

Turner, 482 U.S. at 89-90); Wolf v. Ashcroft, 297 F.3d 305, 309

(3d Cir. 2002); Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir.

1995); Mann v. Reynolds, 46 F.3d 1055, 1060-61 (10th Cir.

1995).

Our decision in Bieregu is instructive on this point.

While the defendant administrators in Bieregu argued only that

their opening of legal mail in the absence of the inmate

addressee did not violate the Constitution, the Court, in the

course of reversing summary judgment in favor of those

defendants, necessarily addressed whether the legal mail policy

was enforceable under Turner. Bieregu, 59 F.3d at 1456-58.

The Court found that no reasonable connection had been

demonstrated between their conduct and institutional security

“on the supposition that correspondence may contain plans for

escape or incite violence.” Id. at 1457. We recognized that the

state had a “substantial interest” in institutional security but

concluded that, on the state of the record, “to suggest that

repeatedly opening incoming court mail outside the presence of

an inmate advances a legitimate interest in institutional security

. . . would overreach.” Id. In other words, while it was true that

19

legal mail conceivably might contain such plans and the opening

of it might conceivably thwart those plans, the risk allegedly

addressed was too insubstantial to justify incursion on First

Amendment interests.

There is no dispute here about the existence of the

regulation and the defendants’ conduct implementing it. As we

have explained, based upon that regulation and conduct,

plaintiffs have established that the defendants have infringed

upon their First Amendment protected interest in being present

when legal mail addressed to them is opened. It follows that

defendants’ practice cannot pass constitutional muster unless it

can satisfy the Turner tests.

In order to satisfy their burden at the first Turner step, the

defendant administrators have identified as the relevant

penological interest their interest in protecting the safety and

security of New Jersey’s prisons. The defendants put forth only

one means by which the policy might serve that interest:

through a reduction in the risk of anthrax contamination in

prisons. In order to establish that there is a non-negligible risk

of anthrax contamination that the policy could be thought to

reduce, the defendants rely solely on the generally known facts

regarding the events of September 11, 2001, and the letters

posted in October of 2001 containing anthrax spores.7 They

7

Both sides in both cases agree upon the facts here earlier

reported concerning the anthrax letters. See page ___, infra. A

series of such letters was posted in October of 2001, four of

which were processed by the mail processing center in

20

have tendered no other evidence for the purpose of establishing

the existence of a significant risk of anthrax contamination and

thus a reasonable connection between these practices and the

safety and security of their prisons.

The District Court in Allah, viewing the question

presented under Turner’s first step from the perspective of the

date of its decision in October of 2004, found “that there is no

reasonable connection between the Legal Mail Policy and the

Defendants’ asserted interest.” App. Brown at Ra123. It

explained:

Defendants have offered no evidence that there is

an elevated risk of anthrax contamination in

prisons resulting from the events of September

11, 2001, which prompted DiFrancesco’s

executive order. Nor have Defendants cited any

evidence of attempts to expose prisoners to

anthrax in the three years since the incident in the

Hamilton postal facility. Since that time,

investigations conducted by the Center for

Disease Control and Prevention (the “CDC”) have

found that the actual risk of anthrax

contamination in this country is quite small, and

Hamilton, NJ. Five people died. There were five confirmed

infections in New Jersey. No evidence has been tendered,

however, regarding the addressees of those letters, the results of

the ensuing investigation, or any other information regarding

them.

21

guidelines set forth by the CDC and the State of

New Jersey provide a sensible approach to

dealing with suspicious packages.

Id.

The District Court in Jones, viewing the question

presented under Turner’s first step from the time perspective of

the adoption of the regulation, found “that the revised mail

policy has a rational relation to its stated and legitimate purpose

of maintaining prison safety and security.” Id. at Ra111. It

explained:

After September 11, 2001, prison officials were

faced with the very real and dangerous prospect

of receiving prisoner mail containing Anthrax. In

such a close-quartered environment as a prison,

the potential danger to inmates and staff alike is

obvious. If a prisoner were to open a

contaminated envelope in his cell, not only would

the prisoner and mail carrier likely be exposed to

the contaminant, the prisoner’s cell mate and

neighbors, as well as his entire prison wing,

would be at risk of exposure. The revised mail

policy seeks to lessen the risk of Anthrax

exposure to prisoners and prison staff by opening

incoming mail in a secure environment in which

any contamination would be immediately

contained.

Id.

22

We believe that a prison administrator compelled to act

immediately after September 11th and October of 2001 might

reasonably have concluded that the risk of an anthrax terrorism

attack on a prison was sufficiently unquantifiable to justify a

temporary, emergency measure involving the opening of a

prisoner’s legal mail in his absence. We conclude, however,

that we should review the injunction entered by the District

Court in Allah based on the state of the record in that case at the

time it was entered more than three years after September 11th.

See United States v. Carolene Products Co., 304 U.S. 144, 153

(1938) (“[T]he constitutionality of a statute predicated upon the

existence of a particular state of facts may be challenged by

showing to the court that those facts have ceased to exist.”);

Schumacher v. Nix, 965 F.2d 1262, 1271 (3d Cir. 1992).

Reviewing it from that perspective we, too, find that there is “no

reasonable connection between the Legal Mail Policy and the

defendants’ asserted interest.” 8 App. Brown at RA123.

8

While they have played no role in our decision, extra-

record materials to which plaintiffs and amici refer us, some of

which are dated after the Allah Court’s October 2004

injunction, support its soundness today. Since October of 2004,

the Postal Service has implemented a series of measures to

reduce the risk of anthrax contamination through the mail.

These measures have included the installation of biohazard

detection systems in all nine processing centers in New Jersey.

The Centers for Disease Control and Prevention estimates an

individual’s current risk of contracting anthrax to be roughly 1

in 300 million in an average year. See Ctrs. for Disease Control

& Prevention, Anthrax Q & A: Risk,

23

At every step in the suggested logical progression from

the events of September and October 2001 to the need for

protection of prisons against anthrax contamination in October

2004, common sense would not assist the responsible

administrator. He or she, without additional information, could

not reasonably take each logical step in deciding whether to

continue to tread upon inmates’ First Amendment rights. For

example, it is conceivable, we suppose, that there may have

been a connection between the events of September 11th and the

anthrax letters of October 2001, but common sense does not

alone afford a reasonable basis for believing that there was, and

a prison administrator in the absence of substantial evidence to

so suggest could not three years later reasonably rely upon such

a connection in deciding whether to continue the amended legal

mail policy until the end of the state of emergency. The same

can be said for the alleged connection between a limited but

undisclosed number of anthrax letters posted in October of 2001

by an unknown person or persons to undisclosed places and the

existence three years later of a person motivated and with the

means to attack a prison with anthrax. Finally, even if an

administrator could reasonably conclude in October of 2004 that

http://www.bt.cdc.gov/agent/anthrax/faq/risk.asp (last visited

July 31, 2006). By way of comparison, one is two times less

likely to contract anthrax in a given year than to win the grand

prize in the Multi-State Lottery Association’s Powerball game.

See The Multi-State Lottery Association, Powerball–Prizes and

Odds, http://www.powerball.com/powerball/pb_prizes.asp

(reporting odds of grand prize to be roughly 1 in 146 million)

(last visited July 31, 2006).

24

there was a non-de minimis risk of an anthrax attack on New

Jersey prisons, common sense, without more, would not afford

a reasonable basis for believing that that risk would be

materially reduced by opening letters from lawyers and courts.

In ruling that the state had failed to demonstrate a “valid,

rational connection” between the legal mail policy and a

legitimate governmental interest, the Allah Court did not second

guess New Jersey prison administrators’ judgment with respect

to administrative burdens or inmate behavior, or any other

matter within their special expertise. The problem it addressed

was one involving the assessment of the risk of a terrorist

anthrax attack on New Jersey’s prisons in the Fall of 2004. Yes,

such an attack is conceivable, but that Court would have been

neglectful of its responsibility if it had sanctioned the

elimination of the constitutional right we recognized in Bieregu

in the absence of some rational basis for believing there was a

non-negligible risk of such an attack. Stated otherwise, while

the health and safety of inmates and staff are legitimate

penological interests, if there is no information suggesting a

significant risk of an anthrax attack, there is no reasonable

connection between those interests and the policy of opening

legal mail in the absence of the inmate addressee. Accordingly,

we hold that the defendants have not met their burden under the

first step of Turner and proceed no further in our review of the

injunction in the Allah Court.

Although only two, rather than three, materially

uneventful years had passed at the time of the Jones Court’s

decision to refuse injunctive relief, our analysis of the issues

presented by Jones’ appeal parallels the analysis we have just

25

conducted in Allah and reaches the same conclusion. The

defendants in Jones, like those in Allah, have failed to meet their

burden under the first step of Turner. Accordingly, we will

reverse the judgment of the Jones Court on Jones’ claim for

injunctive relief and will remand with instructions to enter an

injunction consistent with the Allah injunction.

III.

State officials are entitled to qualified immunity from

damage liability 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). “This inquiry . . . must be undertaken

in light of the specific context of the case.” Saucier v. Katz, 533

U.S. 194, 201 (2001).

Bieregu established as a general matter that prisoners

have a First Amendment protected interest in being present

when their legal mail is opened. 59 F.3d at 1458. But as the

Supreme Court emphasized in Saucier, “that is not enough.”

533 U.S. at 202. “The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is

doing violates that right.” Id. (quoting Anderson v. Creighton,

483 U.S. 635, 640 (1987)). For two reasons, we believe it

cannot be said with confidence that reasonable prison

administrators in the defendants’ position would have realized

that they were violating the teachings of Bieregu.

First, as we have explained, prison administrators in

defendants’ position would not have been violating inmates’

26

rights if they reasonably believed they were acting in the interest

of inmate and staff health and safety. As we have further

explained, the Turner test is highly fact sensitive and, at the time

the challenged regulation was adopted, there was no guidance in

our case law regarding the application of Bieregu and Turner in

the context of the special circumstances encountered in the Fall

of 2001. Without being able to determine whether the October

2001 series of anthrax letters had ended or was on-going, a

reasonable administrator might well have understood the legal

mail policy to be consistent with those cases.

Second, even at a later point in time when it became

apparent that there was no significant, on-going risk from

anthrax attack, we believe a reasonable prison administrator

evaluating whether the legal mail policy should be continued

might well have concluded that Bieregu was no longer sound

law. As previously noted, at that point we had declared without

reservation in Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir.

1997), that the Supreme Court had “effectively overruled

Bieregu.” While we here hold that this was not true with respect

to the First Amendment aspects of Bieregu, in the absence of

authority suggesting otherwise, we cannot find a prison

administrator to have been unreasonable in taking our statement

in Oliver at face value.

Accordingly, we will affirm the ruling of both the Allah

Court and the Jones Court that the defendants are entitled to

qualified immunity with respect to plaintiffs’ damage claims.

IV.

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The judgment of the District Court in Allah will be

affirmed. The judgment of the District Court in Jones will be

affirmed in all respects other than the denial of relief on

plaintiffs’ claim for an injunction. Its denial of injunctive relief

will be reversed and this matter will be remanded with

instructions to enter an injunction consistent with that entered in

Allah.

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