Fontroy v. Beard

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

3-13-2009

Fontroy v. Beard

Precedential or Non-Precedential: Precedential

Docket No. 07-2446

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-2446

_____________

DERRICK DALE FONTROY, I;

THEODORE B. SAVAGE, J.D.;

AARON CHRISTOPHER WHEELER;

v.

JEFFREY A. BEARD;

DAVID DIGUGLIELMO;

KIM ULISNY,

Appellants.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 02-cv-02949

District Judge: The Honorable Timothy J. Savage

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 27, 2009

1

Before: SCIRICA, Chief Judge, AMBRO, and SMITH,

Circuit Judges

(Filed: March 10, 2009 )

Claudia M. Tesoro

Office of the Attorney General

21 South 12th Street

Third Floor

Philadelphia, PA 19107

Counsel for Appellants Jeffrey A. Beard, David

DiGuglielmo, and Kim Ulisny

Derrick Dale Fontroy

Theodore B. Savage

Aaron Christopher Wheeler

Proceeding Pro Se

AMENDED OPINION

SMITH, Circuit Judge.

In 2002, the Pennsylvania Department of Corrections

(“DOC”) implemented a new prison mail policy. This policy

required attorneys and courts to affix “Control Numbers” to mail

sent to inmates before those communications would be

2

separated from regular mail, and opened and inspected for the

first time in the addressee inmate’s presence. Appellees Derrick

Dale Fontroy, Theodore B. Savage, and Aaron Christopher

Wheeler (the “Inmates”) successfully challenged the

constitutionality of this policy on First Amendment grounds in

the District Court. Officials from the DOC have appealed. We

are mindful that important First Amendment interests are at

stake. But because we conclude that the new policy is

“reasonably related to legitimate penological interests,” Turner

v. Safley, 482 U.S. 78, 89 (1987), it passes constitutional muster,

and we will reverse the District Court.

I.

To ensure that inmates cannot obtain contraband through

the mail system, the DOC has policies for opening and

inspecting incoming prison mail. The DOC receives mail

addressed to inmates in mailrooms, which are located outside

the perimeter of each corrections facility. There, the mail is x-

rayed and sorted. Mail inspectors at these off-site facilities then

open and inspect regular mail for contraband. Legal mail,1

however, must be treated differently. Although the DOC

prohibits mail inspectors from reading mail addressed to inmates

except in special circumstances, constitutional obligations

require the DOC to take additional measures to ensure that legal

1

For the purposes of this opinion, we use the term “legal

mail” to refer to incoming attorney and court mail, collectively.

3

mail remains unread. See Jones v. Brown, 461 F.3d 353, 355

(3d Cir. 2006) (holding that “state prisoners have an interest

protected by the First Amendment in being present when their

incoming legal mail is opened.”); see also Bieregu v. Reno, 59

F.3d 1445, 1452 (3d Cir. 1995) (“[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.” (emphasis added)). A policy that allows

the opening of legal mail without the physical presence of

addressee inmates “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.” Jones, 461 F.3d at

359. As a result, the DOC tries to separate legal mail from

regular mail so that legal mail can be opened and inspected for

the first time in the addressee inmate’s presence. How the DOC

distinguishes between legal and regular mail is at the heart of

this dispute.

Under the DOC mail policy in place from the 1970s until

2002, DOC staff looked at the return address alone to determine

whether the sender was an attorney or court. If the return

address indicated that the mail originated from one of those

sources, the mail was classified as a “Privileged

Correspondence.” 2 Privileged Correspondence was then

2

The designation “Privileged Correspondence” does not

necessarily equate with legal privilege. The DOC’s mail

4

separated from the regular mail, sent to the corrections facility,

and opened and inspected for the first time by on-site Housing

Unit Officers in the inmates’ presence.

In 2002, the DOC decided to change its policies and

procedures for handling and inspecting legal mail sent to

inmates. Appellant Jeffrey Beard, the Secretary of the DOC,

explained during a deposition that the DOC had “ongoing

concerns about the privileged mail that was coming to our

institutions, because on a not infrequent basis, and in virtually

all of our institutions at one time or another, we have come

across attempts by inmates to smuggle various items in what

was considered to be privileged mail.” Two reports prepared in

1999 evidenced those ongoing concerns. A November 1999

report analyzing the high-profile escape of an inmate (the

“Escape Report”) suggested that the hacksaw blade and security

screwdriver the inmate used to escape were obtained through

mail treated as Privileged Correspondence. Additionally, a

September 1999 report entitled “Privileged Correspondence

Inspection and Contraband” (the “September Report”) contained

a “random sampling of incidents involving legal mail abuse.”

The September Report advised the DOC to revise the existing

mail inspection policies because 1) contraband contained in

policies define Privileged Correspondence as correspondence

that meets specified conditions, and it has been limited to

communications from attorneys, courts, and certain elected and

appointed officials.

5

Privileged Correspondence would pass through corrections

facility gates before it could be discovered; and 2) the inspection

of Privileged Correspondence was less effective because

Housing Unit Officers had less experience and time to devote to

the task than the professional Corrections Mail Inspectors.

After negotiating proposed revisions with the American

Civil Liberties Union, Pennsylvania Institutional Law Project,

and the Defender Association of Philadelphia, the DOC issued

a new mail policy on September 1, 2002, effective September

30, 2002. Under the new policy, incoming attorney

communications could be treated as Privileged Correspondence

only if they met one of two conditions: 1) the attorneys hand-

delivered the sealed communications to specified DOC

facilities; or 2) the attorneys obtained a Control Number from

the DOC and placed the Control Number on each envelope

mailed to an inmate. Attorneys could obtain a Control Number

by faxing a letter request containing the attorney’s name,

address, telephone and fax numbers, state attorney identification

number, and a written verification subject to the penalties of 18

Pa. Cons. Stat. § 4904 3 that all mail sent to inmates using the

Control Number would contain “only essential confidential,

attorney-client communication and [would] contain no

contraband.” The DOC must then provide the attorney with a

3

18 Pa. Cons. Stat. § 4904 describes certain

misdemeanors associated with making unsworn false statements

to authorities.

6

Control Number one business day after receiving a request.4 A

subsequent revision that was issued on May 20, 2004, effective

July 15, 2004, made two relevant changes: the revision 1)

allowed courts to obtain Control Numbers in the same manner

as attorneys;5 and 2) required all incoming mail that did not bear

a Control Number but still appeared to be from a court to be

hand-delivered after it was opened and inspected like other

regular mail.

On May 16, 2002, the Inmates filed a pro se complaint

against Appellants Beard, David DiGuglielmo, and Kim Ulisny

(the “DOC Officials”).6 An Amended Complaint was filed on

4

The American Civil Liberties Union Foundation of

Pennsylvania approved of the DOC’s plan to require Control

Numbers on attorney mail in a letter dated June 25, 2002.

5

A court seeking a Control Number faxes a letter request

on official letterhead, signed by any judge or chief non-judicial

officer of the court.

6

Instead of DiGuglielmo, the complaint originally named

Donald Vaughn as a defendant. At the time, Vaughn was the

Superintendent at the DOC facility where the Inmates were

incarcerated. DiGuglielmo, the facility’s current

Superintendent, replaced Vaughn as a party to this action on

April 12, 2007.

7

January 29, 2003, followed by a blizzard of other submissions.7

The Inmates alleged that the DOC’s new mail policy

unconstitutionally burdened their First Amendment rights. They

claimed that attorneys and courts had not obtained Control

Numbers, despite repeated requests, and as a result Corrections

Mail Inspectors were opening and inspecting legitimate legal

mail outside of the Inmates’ presence. The Inmates sought both

damages and injunctive relief.

Both parties filed motions for summary judgment.

Fontroy v. Beard, 485 F. Supp. 2d 592, 593 (E.D. Pa. 2007).8

On May 3, 2007, the District Court granted the Inmates’ motion

for summary judgment with respect to their request to enjoin the

new mail policy’s implementation, and denied the DOC

Officials’ corresponding cross-motion for summary judgment on

that issue.9 Id. at 601. The District Court determined that the

7

The able District Judge patiently managed this case,

which now contains 350 docket entries.

8

The DOC Officials filed a motion to dismiss the

Amended Complaint on February 14, 2003. The Inmates then

filed a motion for summary judgment on June 18, 2003.

Subsequently, the District Court construed the DOC Officials’

motion to dismiss the Amended Complaint as a cross-motion for

summary judgment. Fontroy, 485 F. Supp. 2d at 593.

9

The District Court also held that the DOC Officials were

entitled to qualified immunity and that the DOC’s decision to

8

DOC’s new mail policy10 unconstitutionally infringed on the

Inmates’ First Amendment rights because there was no

“reasonable connection between the asserted legitimate

penological interest and the mail regulation” as required by

Turner v. Safley. Id. at 592–93. The Court believed that “[t]he

connection between the policy change and the rationale for it

[was] tenuous and remote,” and characterized the changes as “an

overreaction to a single escape incident and a few isolated

violations of the contraband policy involving legal mail that may

or may not have occurred.” Id. at 599. Accordingly, the Court

held that the new mail policy failed the first part of Turner’s

two-step test: there was no rational relationship between the

mail policy and the legitimate penological interest in prison

safety and security. Id. In the alternative, the Court held that

the new policy did not satisfy Turner’s second step, which is

outlined below, and therefore would not have passed

constitutional muster even if a rational connection had been

established. Id.

After the District Court denied their motion to alter the

stop keeping a mail log for court mail was constitutional.

Fontroy, 485 F. Supp. 2d at 600–01. These determinations have

not been raised on appeal.

10

The Court addressed the most current DOC mail policy,

which included the changes made in 2004 regarding the

treatment of court mail. Fontroy,, 485 F. Supp. 2d at 593 n.1.

9

judgment, the DOC Officials filed a timely appeal challenging

both the District Court’s granting of the Inmates’ motion for

summary judgment and its denial of the DOC Officials’ cross-

motion for summary judgment.

II.

The Inmates’ underlying suit is actionable under 42

U.S.C. § 1983. Therefore, the District Court had jurisdiction

pursuant to 28 U.S.C. § 1331, and we have jurisdiction under 28

U.S.C. § 1291. Our review of the District Court’s summary

judgment decisions is plenary, but we must view the facts in the

light most favorable to the non-moving party. Nasir v. Morgan,

350 F.3d 366, 368 (3d Cir. 2003).

III.

We first address the District Court’s grant of the Inmates’

motion for summary judgment. The DOC Officials concede that

the DOC’s new mail policy impinges on the Inmates’ First

Amendment rights because at least some legal mail is opened

and inspected outside of the Inmates’ presence. See Jones, 461

F.3d at 359 (reaffirming that a policy “of opening legal mail

outside the presence of the addressee inmate interferes with

protected comm unications, strips tho se p rotec ted

communications of their confidentiality, and accordingly

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

DOC Officials point out, however, that the policy can still be

10

constitutional under Turner v. Safley “if it is reasonably related

to legitimate penological interests.” Turner, 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.’” Jones, 461 F.3d at

360 (quoting Turner, 482 U.S. at 89). First, we must determine

“whether there is a valid, rational connection between the prison

regulation and the legitimate interest put forth to justify it.”

Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008) (internal

quotations and citation omitted). We afford “substantial

deference” to the DOC’s professional judgment, but the DOC

Officials’ evidence “must amount to more than a conclusory

assertion.” Id. (internal quotations and citation omitted).

Although the Inmates bear the ultimate burden of showing that

the DOC’s new mail policy is unconstitutional, it is the DOC

Officials’ burden to demonstrate that a rational connection exists

between the policy and a legitimate penological interest. Id.

If this rational connection exists, we then consider three

other factors in a second-step analysis: 1) whether inmates have

an alternative means of exercising the 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 inmate’s rights at de minimis cost to

valid penological objectives. Id. We do not, however, require

prisons to use the least restrictive means possible to further

legitimate penological interests. Id.

11

A.

Under Turner’s first step, we must determine whether the

record supports a rational connection between improving the

means of verifying the source of legal mail through the use of

Control Numbers and the safety and security problems posed by

inmates using the legal mail system to smuggle contraband.

We conclude that the DOC Officials have established the

necessary rational connection here. First, the record provides

ample support for the DOC’s belief that its old legal mail policy

was being abused. Beard testified at his deposition that “over

the years we have had ongoing concerns about the privileged

mail that was coming into our institutions.” Ulisny, a mailroom

supervisor with twenty-seven years of mailroom experience,

testified at her deposition that she encountered instances where

mail bearing return addresses from attorneys and courts

contained contraband. The Escape Report stated that there was

“[s]ubstantial evidence show[ing] that [an escaped inmate] was

able to introduce contraband in the institution through ‘legal

mail.’” This included the materials suspected to have aided in

the inmate’s escape. The September Report included a random

sample of about fifteen instances between 1986 to 1999 where

the DOC recovered contraband from mail that appeared from its

return address to be legal mail.

Second, the record shows that some of these abuses of

the DOC’s old mail policy involved the falsification of return

12

addresses in order to obtain treatment as Privileged

Correspondence. Ulisny testified that she recalled one instance

where contraband was discovered in an envelope fraudulently

bearing an attorney’s return address. The September Report’s

random sampling of legal mail abuses included at least two

instances that involved the use of a fake return address from an

attorney. Indeed, the Escape Report specifically pointed out that

under the DOC’s old mail policy, it was “difficult to confirm

whether the mail was actually sent by an attorney, since legal

envelopes have been stolen and misused by inmates and/or their

associates.”

Third, evidence suggests that prison security and safety

is enhanced when off-site Corrections Mail Inspectors inspect

more mail, and on-site Housing Unit Officers inspect less. The

September Report identified two reasons for this effect: 1) off-

site inspection kept contraband contained in mail from

physically entering the corrections facility; and 2) the use of

professional Corrections Mail Inspectors increased the

likelihood that contraband would be discovered. The Escape

Report echoed these findings. Accordingly, reducing the

amount of fake legal mail erroneously treated as Privileged

Correspondence would enhance prison security and safety.

For these reasons, we disagree with the District Court

that “[t]he connection between the policy change and the

rationale for it is tenuous and remote.” Fontroy, 485 F. Supp.

2d at 599. Most clearly, the record undermines the District

13

Court’s determination that “[t]he concerns articulated now by

the DOC were not the reasons given for the policy change at the

time,” and “[t]he only rationale for the revision then was the

prevention of escape.” Id. at 598. To the contrary, the

September Report’s random sampling of instances of legal mail

abuse, the Escape Report’s specific reference to problems

distinguishing between fake and legitimate legal mail, and

Ulisny’s testimony about legal mail abuses bolster Beard’s

testimony that the DOC had ongoing concerns about weaknesses

in its legal mail system. Although the inmate’s escape may have

prompted the DOC to scrutinize its mail policies across penal

institutions, the DOC certainly had evidence of ongoing and

systematic abuses of the legal mail system, including evidence

of the use of fake attorney return addresses. This shows that

much more than just the prevention of escape motivated the

DOC’s new mail policy.

Any deficiencies in the Escape Report and the September

Report that the District Court relied upon do not suggest

otherwise. Although the Escape Report did not conclusively

determine that the inmate’s escape tools were smuggled into the

prison through legal mail, this does not amount to a “fail[ure] to

produce any evidence, let alone substantial evidence, linking the

inmate’s escape tools to legal mail.” Fontroy, 485 F. Supp. 2d

at 596. The Escape Report noted that, in 1998, the escaped

inmate “was issued a misconduct for the possession of

implements of escape and possession of a controlled substance,

when marijuana and a security screwdriver tip were found in the

14

binding of a legal brief.” Also, the Escape Report’s conclusion

that “[s]ubstantial evidence shows that [the escaped inmate] was

able to introduce contraband into the institution through ‘legal

mail’” must be taken as true in deciding whether to grant the

Inmates’ motion for summary judgment. See Nasir, 350 F.3d at

368.

More importantly, the September Report outlined much

more than only “a few isolated violations” of the DOC’s old

legal mail policy. Fontroy, 485 F. Supp. 2d at 599. As

explained in the Report’s preface, the instances of mail abuse

mentioned in the Report are merely a “random sampling of

incidents involving legal mail abuse.” (Emphasis added.)

According to the Report, the random sampling “illustrate[s] that

[legal mail abuse] is an ongoing problem that is not going

away.” Therefore, the Report is evidence of larger systemic

problems with the DOC’s old mail policy.

Additionally, we cannot agree with the distinction that

the District Court drew between “harmless” and “dangerous”

contraband. Id. at 597. There is no meaningful difference.

Even if some pieces of contraband may be less dangerous than

others, an inmate’s possession of any items that the DOC has

classified as contraband would pose some risk to prison safety

and security. At a minimum, it flouts prison rules and creates

inequality among prisoners. This chips away at the DOC’s

ability to maintain safe and orderly penal institutions.

15

We admit that there is much less evidence linking

falsified court mail, as opposed to fake attorney mail, with

attempts to smuggle contraband. See Fontroy, 485 F. Supp. 2d

at 599 (noting the “scant evidence of demonstrable safety and

security threats associated with court mail”). This is not enough,

however, to persuade us that the DOC’s new policy is

unconstitutional. If court mail policies did not change along

with attorney mail policies, it is obvious that the abuse of the

legal mail system could continue with ease: to circumvent the

new attorney mail policy, individuals could simply forge a

court’s return address on the envelope instead of an attorney’s.

This is a sufficient reason to modify court mail policies even

absent evidence of actual abuse. See Jones, 461 F.3d at 361

(“[S]atisfying [the rational connection burden] may or may not

require evidence; where the connection is obvious, common

sense may suffice . . . .”).

We believe that the District Court erred in downplaying

the implications of changing the location in which certain mail

is opened and inspected for the first time. See Fontroy, 485 F.

Supp. 2d at 598 (“All legal and court mail, with or without a

control number, is still opened and inspected by the staff. If

there is contraband, it will be discovered. The difference is

where . . . .”). Here, as noted above, the September Report and

the Escape Report pointed out that increased off-site inspection

enhances security and safety by preventing contraband from

entering the prison in the first instance, and by increasing the

likelihood that the contraband will be discovered through the use

16

of professional Corrections Mail Inspectors with more time and

experience. Additionally, unlike the District Court, we are less

certain that “[i]f there is contraband, it will be discovered.” In

this case, which staff member conducts the inspection—a

Corrections Mail Inspector whose only responsibility is

inspecting mail, or a Housing Unit Officer with various

cellblock responsibilities—can affect the probabilities of

discovering contraband. As a result, changing the location of

mail inspection from within the cellblock to outside the facility

perimeter can yield clear safety and security benefits.

Since sufficient evidence demonstrates a rational

connection between the DOC’s new mail policy and its interest

in prison security and safety, we believe that the policy passes

the first step of the Turner analysis

B.

Moving to Turner’s second step, we believe that all three

factors counsel in favor of holding the DOC’s new mail policy

constitutional.

First, “[w]ere it shown that no alternative means of

[exercising the circumscribed right] existed . . . it would be

some evidence that the regulations were unreasonable.”

Overton v. Bazzetta, 539 U.S. 126, 135 (2003). Here, however,

the Inmates have alternative means of ensuring that their First

Amendment rights are not infringed upon. Control Numbers are

17

easily obtained upon request and, when used, allow the Inmates

to communicate with attorneys and courts just as they did under

the DOC’s old mail policy. In addition, the DOC treats hand-

delivered court and attorney correspondence as Privileged

Correspondence even without a Control Number, and attorneys

can communicate with inmates by phone or in-person.

Like the District Court and the Inmates, we are concerned

that the Inmates cannot force attorneys and courts to obtain and

use Control Numbers. See Fontroy, 485 F. Supp. 2d at

599–600. Indeed, some attorneys and all courts have refused the

Inmates’ repeated requests to do so. Additionally, as the District

Court correctly noted, “[t]he current procedure as applied to

court mail is even more onerous than as applied to legal mail.

The inmate has no relationship with the sender and cannot

require the sender to apply for and use a control number. Nor

can the DOC or a court.” Fontroy, 485 F. Supp. 2d at 599.

Finally, unlike most attorney communications, most incoming

court correspondence either cannot or will not be made by phone

or in person.

We acknowledge that these problems make the DOC’s

new mail policy a less-than-ideal means of accommodating the

Inmates’ important First Amendment rights. Nonetheless, we

cannot overlook that alternatives are, in fact, available under the

DOC’s new policy. This is all Turner requires. See Overton,

539 U.S. at 135 (“Alternatives to [the regulation] need not be

ideal, . . . ; they need only be available.”). Accordingly, the

18

availability of alternatives favors holding the DOC’s new mail

policy constitutional.

Second, in assessing the burden on prison resources that

accommodating the Inmates’ First Amendment rights would

have, we “should be particularly deferential to the informed

discretion of corrections officials” where an accommodation

“will have a significant ‘ripple effect’ on fellow inmates or on

prison staff.” Turner, 482 U.S. at 90. Here, such deference is

warranted. We reject the Inmates’ argument that a return to the

old DOC mail policy places no burden on prison resources

simply because the old regulations have been in place since the

1970s.11 We also disagree with the District Court’s reasoning

11

The Inmates argue that Bieregu compels a contrary

conclusion. See 59 F.3d at 1458 (“To accommodate plaintiff’s

rights to free speech and court access 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.”). In Bieregu, however,

the plaintiff “d[id] not attack the general [prison] scheme for

handling mail . . . .” Id. at 1449. Instead, the plaintiff

challenged the prison’s pattern and practice of opening his court

mail outside of his presence. Id. Therefore, we distinguish

Bieregu on its facts. While conforming prison officials’

treatment of a single prisoner’s mail to an existing policy

applicable to the rest of the prison population may pose no

burden on prison resources, it is an entirely different problem

with substantially different consequences when the prisoner

19

that the low daily percentage volume of legal mail, requirements

for hand delivery of court mail and legal mail to inmates not

housed in general population, and the extra step of checking

mail for a Control Number, mean that reverting to the old policy

would place “no real burden upon the prison staff . . . .”

Fontroy, 485 F. Supp. 2d at 600. Both the Inmates and the

District Court have ignored the factors that prompted the change

in the first place. The new policy has reduced the amount of

mail warranting treatment as Privileged Correspondence, which

means that Housing Unit Officers spend less time inspecting

mail and more time addressing other prison safety and security

issues. The new policy also makes smuggling contraband into

the prison more difficult. These improvements suggest that

returning to the old policy has the potential of causing a “ripple

effect” on other inmates and prison staff. Accordingly, we

should be deferential to the DOC’s informed discretion here.

Third, “if an inmate claimant can point to an alternative

that fully accommodates the prisoner’s rights at de minimis cost

to valid penological interests, a court may consider that as

evidence that the regulation does not satisfy the reasonable

relationship standard.” Turner, 482 U.S. at 91. The Inmates

claim that the DOC’s old mail policy is such an alternative.

Again, the Inmates have ignored the evidence offered to justify

the new mail policy in the first place—the instances of legal

mail abuse outlined in the Escape Report, September Report,

requests a change to the policy itself.

20

and Ulisny’s and Beard’s testimony. As discussed above, this

demonstrates weaknesses in the old legal mail system and the

deleterious effects of these weaknesses on prison safety and

security. The DOC’s revised policy was designed to address one

of these weaknesses: the difficulties in ensuring that only

legitimate legal mail is treated as Privileged Correspondence.

Accordingly, the Inmates’ proposed alternative cannot be

achieved at a de minimis cost to valid penological interests.

Finally, the Inmates point us to the mail policy employed

by the Federal Bureau of Prisons (“BOP”). Under the BOP’s

policy, incoming mail is opened and inspected for the first time

in the presence of an inmate “if the sender is adequately

identified on the envelope, and the front of the envelope is

marked ‘Special Mail—Open only in the presence of the

inmate’.” 28 C.F.R. § 540.18. The Inmates argue that the

BOP’s less burdensome requirements should persuade us that

the DOC’s revised mail policy is unconstitutional. It does not.

The constitutionality of the BOP’s and DOC’s respective mail

policies should be analyzed on their own terms. Assuming that

the BOP’s policy is constitutional does not necessarily mean that

the DOC’s more demanding policy is not. Absent any authority

suggesting that the BOP’s policy is at the outer limits of

constitutionality, we decline to afford the BOP’s policy any

persuasive weight in this case.

In sum, all three factors in the second step of our

Turner analysis weigh in favor of upholding the DOC’s new

21

mail policy. Since the DOC’s new mail policy passes Turner’s

two-step test, we will reverse the District Court’s decision to

grant the Inmates’ motion for summary judgment.

IV.

We next address the DOC Officials’ claim that the

District Court should have granted their cross-motion for

summary judgment. The legal analysis we employ here is

identical to the one we used to evaluate the District Court’s

decision to grant the Inmates’ motion for summary judgment.

Factually, however, we must view the record in the light most

favorable to the Inmates. Nasir, 350 F.3d at 368. Additionally,

summary judgment is inappropriate if the Inmates have raised a

genuine issue of material fact. See Fed. R. Civ. P. 56(c); Emory

v. AstraZeneca Pharms. LP, 401 F.3d 174, 179 (3d Cir. 2005).

Viewing the record in the light most favorable to the

Inmates, we see some evidence to support a conclusion that the

Corrections Mail Inspectors are no more skilled at discovering

contraband than the Housing Unit Officers are. Ulisny testified

at her deposition that she did not know of “any type of

contraband that can be detected in court mail, when its [sic]

opened outside of the inmate’s presence, that couldn’t be

detected if it was opened in the inmate’s presence . . . .”

Additionally, John Murray, a corrections officer with 25 years

of experience, testified at his deposition that he was generally

able to identify contraband while inspecting mail, even without

22

special training for inspecting mail in front of an inmate.

Although this evidence casts doubt on the revised DOC

mail policy’s actual ability to enhance prison security and safety,

it does not undermine the DOC Officials’ cross-motion for

summary judgment. Since the DOC Officials have an

undisputed legitimate governmental interest in maintaining

prison safety and security, all they need to do to prevail is

demonstrate “that the policy drafters ‘could rationally have seen

a connection’ between the policy and [the penological interest].”

Jones, 461 F.3d at 360. This burden is “slight.” Id. Here, as

explained above, the analysis and conclusions contained in the

Escape Report and September Report are enough to meet this

burden. Indeed, even if the Corrections Mail Inspectors are no

more skilled at discovering contraband than the Housing Unit

Officers are, the two Reports suggest other ways in which

improving legal mail verification techniques could enhance

prison safety and security: reducing the amount of fake legal

mail treated as Privileged Correspondence would 1) decrease the

amount of time that the on-site Officers have to spend on mail

inspection; and 2) decrease the amount of contraband that makes

its way past prison gates in the first place.

The Inmates also have offered nothing to contradict the

factual assertions contained in the Escape Report and September

Report. They have only recharacterized the reports as

inconclusive or representative of only a few isolated incidents.

This is insufficient to raise the genuine issue of fact necessary

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to survive summary judgment. Likewise, the Inmates have

raised no factual issues that would change the Turner step two

analysis that we conducted above. Therefore, we hold that the

DOC Officials’ cross-motion for summary judgment should

have been granted.

V.

Although application of Turner’s two-step test is

sufficient by itself to satisfy us that the DOC’s new mail policy

is constitutional, we find additional support for our holding in

language of the Supreme Court in Wolff v. McDonnell, 418 U.S.

539 (1974). In Wolff, the Court addressed the issue of “whether

letters determined or found to be from attorneys may be opened

by prison authorities in the presence of the inmate or whether

such mail must be delivered unopened if normal detection

techniques fail to indicate contraband.” 418 U.S. at 575. As

part of its decision, the Court addressed the Court of Appeals’

statement that “[i]f there was doubt that a letter was actually

from an attorney, ‘a simple telephone call should be enough to

settle the matter.’” Id. at 575 (citation omitted). In the Court’s

view, this “impl[ied] that officials might have to go beyond the

face of the envelope, and the ‘privileged’ label, in ascertaining

what kind of communication was involved.” Id.

The Court rejected the Court of Appeals’ approach as

unworkable. Id. at 576. The Court pointed out that “[i]f prison

officials had to check in each case whether a communication

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was from an attorney before opening it for inspection, a near

impossible task of administration would be imposed.” Id. The

Court, however, did approve of some other methods for

determining whether certain mail was actually from an

attorney—methods that extend beyond the face of the envelope:

We think it entirely appropriate that the State

require any such communications to be specially

marked as originating from an attorney, with his

name and address being given, if they are to

receive special treatment. It would also certainly

be permissible that prison authorities require that

a lawyer desiring to correspond with a prisoner,

first identify himself and his client to the prison

officials, to assure that the letters marked

privileged are actually from members of the bar.

Id. at 576–77. Here, the Control Numbers that the DOC

requires act as both a “special mark” identifying

communications as originating from an attorney and also as a

means of identifying the attorney to prison officials in order to

“assure that the letters marked privileged are actually from

members of the bar.” Id. As a result, Wolff weighs in favor of

upholding the constitutionality of the DOC’s new mail policy.

VI.

Compared with the old mail policy, the DOC’s new

policy does place an additional burden on the Inmates’ First

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Amendment rights. Upon their incarceration, however, the

Inmates “necessarily sacrifice[d] many of the constitutional

rights available to non-incarcerated citizens.” Jones, 461 F.3d

at 360. Therefore, to persuade us that the DOC’s new mail

policy is constitutional, the DOC Officials need only show that

it is “reasonably related to legitimate penological concerns.”

Turner, 482 U.S. at 89. Here, they have done so, and we will

reverse.

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