finding a right to be clearly established despite a circuit split, as long as “no gaping divide has emerged in the jurisprudence such that defendants could reasonably expect this circuit to rule” to the contrary
How later courts described this case
- finding a right to be clearly established despite a circuit split, as long as “no gaping divide has emerged in the jurisprudence such that defendants could reasonably expect this circuit to rule” to the contrary
- holding that jury could reasonably find a pattern or practice where the plaintiff alleged fifteen instances of his legal mail being opened and documented five instances
- holding that a pattern of opening a prisoner’s legal mail outside of his presence can be a violation of his constitutional right of access to the courts
- disagreeing with Fifth Circuit’s Brewer, and concluding the- pattern and practice of opening inmate’s properly marked incoming “court mail” 25 outside his presence fails the Turner, reasonableness standard and violates inmate’s rights to free speech and access to courts
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996)
59 F.3d 1445, 1455-56 (3d Cir, 1995), abrogated on other grounds by Lewis v. Casey, 518 U.S. 343
Abrogated in part by Oliver v. Fauver, 118 F.3d 175 (1997)
59 F.3d 1445, 1452 (3d Cir. 1995), abrogated in part by Oliver v. Fauver, 118 F.3d 175
The opinion
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 , 94 S.Ct. 1800, 1809 , 40 L.Ed.2d 224 (1974), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401 , 109 S.Ct. 1874 , 104 L.Ed.2d 459 (1989). But “freedom from censorship is not equivalent to freedom from inspection or perusal.” Wolff v. McDonnell, 418 U.S. 539, 576 , 94 S.Ct. 2963, 2984 , 41 L.Ed.2d 935 (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.
*1460 Also, because Bieregu has not claimed his right to privacy was infringed, it is unnecessary to address this issue.
Present: MANSMANN, SCIRICA and SAROKIN, Circuit Judges.
SUR PETITION FOR REHEARING
Sept. 11, 1995
The petition for rehearing filed by appellant in the above-entitled case having been submitted to the judges who participated in the decision of this court, and no judge who concurred in the decision having asked for rehearing, the petition for panel rehearing is denied.