Brown v. PA Department of Corrections

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority grants the motion for summary judgment filed by the PA Department of Corrections (DOC), concluding that the DOC’s incoming mail policy, which authorizes the DOC to open an inmate’s legal mail outside the inmate’s presence unless the legal mail contains a control number, is reasonably related to a legitimate penological interest, i.e., preventing the introduction of contraband into the prisons. However, the United States District Court for the Eastern District of Pennsylvania recently reached the opposite conclusion in Fontroy v. Beard, 485 F.Supp.2d 592 (E.D.Pa.2007). Although the majority mentions Fontroy , the majority does not provide the district court’s rationale or offer any explanation for its disagreement with the district court.

As the majority recognizes, in Jones v. Brown, 461 F.3d 353 (3d Cir.2006), cert. denied, — U.S. —, 127 S.Ct. 1822 , 167 L.Ed.2d 330 (2007), the United States Court of Appeals for the Third Circuit held that a state policy of opening legal mail outside the presence of the addressee inmate impinges upon the inmate’s constitutional right to freedom of speech. (Majority op. at 319.) Prior to 2002, the DOC opened all legal and court mail in the presence of the inmate to whom it was addressed. Fontroy . Now, the DOC opens legal and court mail in the mail *323 room to examine it for contraband unless the inmate’s attorney or the court has obtained a control number from the DOC’s Office of Chief Counsel and has placed the control number on the outside of the envelope. Id.; 37 Pa.Code § 93.2(c).

When a prison regulation impinges on the constitutional rights of an inmate, the regulation is valid only if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987). In determining the reasonableness of a regulation, the relevant factors are: (1) whether the regulation has a valid, rational connection to a legitimate governmental interest; (2) whether alternative means of exercising the inmate’s right remain open to the inmate; (3) the impact that the accommodation of the inmate’s right will have on guards, other inmates and the allocation of prison resources; and (4) whether there exists an alternative that fully accommodates the inmate’s right at a de minimis cost to valid penological interests. Turner .

I. Valid, Rational Connection

In addressing whether the DOC’s control number policy has a valid, rational connection with preventing contraband from entering prisons, the district court stated:

The [DOC’s] policy and its purported rationale overlook the obvious. 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 [the mail is inspected] — in the mail room if there is no control number, or on the housing units if there is a control number. In either event, a proper inspection is conducted. The risk of any dangerous contraband, such as escape tools or drugs, eluding the inspection process is minimal compared to the significant infringement of the inmate’s constitutional rights resulting from opening the inmate’s mail elsewhere.

Fontroy, 485 F.Supp.2d at 598 . In other words, the control number policy does not prevent contraband from entering prisons; the control number only establishes where the staff inspects mail for contraband.

II. Alternative Means Open to Inmate

Regarding whether inmates have an alternative means for exercising their right to privileged legal communications, the district court stated that the only alternative is for inmates to request that their attorneys and courts obtain and use control numbers; however, the DOC’s policy does not permit inmates to demand or require such action.

If the inmate requests and the attorney fails or refuses to apply for a control number, it is not the attorney who is affected[ 1 ] It is the inmate whose constitutional right is infringed through nothing he has or has not done. This method is not a reasonable alternative to opening the mail in the inmate’s presence.

If someone working in an attorney’s office or a court was determined to use the guise of legal or court mail to introduce contraband into the prison, the control number procedure would not be an impediment. That person has access *324 to the employer’s control number and could use it on legitimate legal or court envelopes. Thus, even at the cost of infringing inmates’ constitutional rights, the regulation would not accomplish its stated goals of preventing the attempted introduction of contraband into the prisons.

Fontroy, 485 F.Supp.2d at 599-600 .

III. Impact of Accommodation

As to the impact that accommodation of an inmate’s right will have on guards, other inmates and the allocation of prison resources, the district court stated that the “burden of prison staff hand delivering each piece of legal mail to the inmate and then opening it in his presence is insubstantial.” Fontroy, 485 F.Supp.2d at 600 .

Mail room staff now must check the control number on the envelope against a master list to verify authenticity — a step that is unnecessary when all legal mail is opened in the inmate’s presence ....

Any cost involved in opening the mad in the inmate’s presence is de minimis .... [I]t takes fifteen seconds to open a piece of mail, fan through the pages, reinsert it in the envelope and reseal the envelope. There is no reallocation of personnel and financial resources required. Correctional officers are opening mail on housing units now. Hence, there is no real impact on other inmates and staff by accommodating the inmates’ First Amendment rights.

Fontroy, 485 F.Supp.2d at 600 (footnote omitted).

IV. Alternative Means to Fully Accommodate

Finally, as to whether there exists an alternative means that would fully accommodate the rights of inmates at a de min-imis cost to valid penological interests, the district court suggests that the DOC need only reinstate its pre-2002 policy by opening an inmate’s legal and court mail in the presence of the inmate to whom it is addressed.

Having considered the district court’s reasoning in Fontroy , and the majority’s failure to discuss or refute that reasoning, I would deny the DOC’s motion for summary judgment. In my view, the DOC’s right to relief is not clear.

. Without considering that an attorney might not apply for a control number, the majority states that the control number procedure will "ensure that privileged communications are opened only in the presence of the inmate.” (Majority op. at 322) (emphasis added). However, because the control number procedure does not require that the attorney or court obtain and use a control number when asked, the procedure cannot ensure the inmate’s constitutional right.