Opinion

Polyns Bieregu v. Janet Reno L. Yearby G. Berman, All Employees of Mail Room Staffs

  • 59 F.3d 1445
Court
Court of Appeals for the Third Circuit
Filed
Sep 11, 1995
Status
Published
Author
Scirica
On the bench
Mansmann, Scirica, Sarokin
Cited by
152 cases
Authority
More cited than 25.9%

Abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996)

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
    Supreme Court of the United StatesJun 24, 199653 citing opinionsother groundsRead it
  • 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
    Court of Appeals for the Third CircuitJul 10, 199712 citing opinionsin partRead it

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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