Petition for Writ of Certiorari — Smith v. Al-Amin (No. 07-1485)

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Supreme Court, U.S.

FILED

O No. 07. W) 071485 MAY 27 2008

OFFICE OF THE CLERK

Iu The

Supreme Court of the United States

WARDEN HUGH SMITH and

SANCHE MARTIN,

Petitioners,

JAMIL AL-AMIN,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

~ For The Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

THURBERT E. BAKER

Attorney General

KATHLEEN PACIOUS

Deputy Attorney General

DEVON ORLAND

Senior Assistant Attorney General

Counsel of Record

40 Capitol Square

Atlanta, Georgia 30334

(404) 463-8850

Attorneys for Petitioners

COCKLE “AW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

ht at wantin, «9 eo oe ee

QUESTIONS PRESENTED

1. Whether prison officials violate the First Amend-

ment rights of a convicted felon when they open — but

do not read — his legal mail outside of his presence.

2. Whether it was clearly established in the Elev-

enth Circuit, for qualified immunity purposes, that

prison officials violate the First Amendment rights of

a convicted felon when they open — but do not read —

his legal mail outside of his presence.

PARTIES TO THE PROCEEDINGS

The parties are as shown in the caption of the

case.

Petitioners before this Court and Appellants/

Defendants below are: Sanche Jackson, Administra-

‘tive Assistant at Georgia State Prison and Hugh

Smith, Warden at Georgia State Prison;

Respondent before this Court and Appellee/

Plaintiff below is Jamil Al-Amin.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........c.cccsssssesseseesees i

PARTIES TO THE PROCEEDINGS .................... il

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STATEMENT OF JURISDICTION .............00...... 1

STATUTES INVOLVED: RELEVANT PROVISIONS

ED vndasiciintsinsviginsstincctiaeseceecevedianmveaes 2

Fe IIIT cick Anokibusspusemssa cvgdcunianiieatiadsserebenienas 2

1. District Court Proceedings......................+ 3

2. Court of Appeals Proceedings.................... 5

REASONS FOR GRANTING THE PETITION... 7

I. CERTIORARI SHOULD BE GRANTED TO

REVIEW THE ELEVENTH CIRCUITS

HOLDING THAT INMATES HAVE A FIRST

AMENDMENT “FREE SPEECH” RIGHT

TO HAVE THEIR LEGAL MAIL OPENED

ONLY IN THEIR PRESENCE ..................... 8

A. The Courts of Appeals Are Deeply

Divided On The Issue......... heqenenaaienias 10

B. The Eleventh Circuit’s Decision Con-

flicts With Decisions of This Court....... 12

C. The Eleventh Circuit’s Decision Im-

pedes The Safe and Secure Operation

OE INE vost esicdcts sakcwcctuscincaacmiesens

TABLE OF CONTENTS - Continued

Page

If. THE ELEVENTH CIRCUIT DECISION

IS CONTRARY TO THIS COURT’S

QUALIFIED IMMUNITY PRECEDENT.... 16

A. The Opinion Below Misreads Lewis v.

B. The Law Regarding Al-Amin’s Free

Speech Rights Was Not Clearly

PR ctiredises secineiiselcecobitbbceisbecans 19

ee il al fas eis chedads sac vnconicciiiovancenion’ 22

APPENDIX

January 7, 2008 Opinion of the Court of Ap-

peals for the Eleventh Circuit .....................000 App. l

August 23, 2006 District Court Order Denying

SHURE FUMING nies csccsncicnssciecesdcsecovoessecs App. 42

September 19, 2006 District Court Order

Denying Motion for Reconsideration of De-

nial of Summary Judgment............ ee App. 56

February 27, 2008 Eleventh Circuit Order

Denying Petition for Rehearing.................... App. 63

TABLE OF AUTHORITIES

Page

CASES

Al-Amin v. Wetherington, 165 Fed. Appx. 733

a ea ME Pic csn sscesthnatunsceaieiestaicas ddaiian adahdarinuibabansonccniis rs)

Bieregu v. Reno, 59 F.3d 1445 (3rd Cir. 1995) ........... 11

Bounds v. Smith, 430 U.S. 817 (1997).............0... ee. 19

Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993)....10, 21

Davis v. Goord, 320 F.3d 346 (2nd Cir. 20038)............ 1l

Felton v. Lincoln, 429 F.Supp. 2d 226 (D.

BN: TEE oss vi sicsoetacichorcch cates Sueatanaaetitasaensees 15

Guajardo v. Estelle, 580 F.2d 748 (5th Cir.

PR sisctntniatpiipinecdadsnuda pial sediments. passim

Harper v. Beard, 2:05CV01803, 2007 U.S. Dist.

LEXIS 55044 (D. Pa. April 23, 2007) ...............0..... 15

Hunter v. Bryant, 502 U.S. 224 (1991)... ee. 22

Jones v. Brown, 461 F.3d 353 (3rd Cir. 2006)............ 11

Lewis v. Casey, 518 U.S. 343 (1996)................... passim

Lewis v. Cook County Bd. of Commissioners, 6

Fed. Annsc426 (7th Cir, 2061). ....cc.cccccssensesscoroscasess 10

Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir.

PD chiikns ccstinueriecttccuszuiteeds an ee care 11,12

Pell v. Procunier, 417 U.S. 817 (1974) ....................0.. 20

Powell v. Kelley, 782 F.2d 1043 (6th Cir. 1985) ......... 12

Procunier v. Martinez, 416 U.S. 396 (1974).....00.0.00... 8

Shaw v. Murphy, 532 U.S. 223 (2001)........... <iy Ady 0

TABLE OF AUTHORITIES — Continued

Page

Taylor v. Sterrett, 582 F.2d 462 (5th Cir. 1976) .....passim

Thornburgh v. Abbott, 490 U.S. 401 (1989).........0.00... 8

Turner v. Safley, 482 U.S. 78 (1987) ..............0 passim

United States v. Patane, 542 U.S. 630 (2004)............ 14

United States v. Young, 146 Fed. Appx. 824 (6th

a sale aa isis Dacia daidesabaliidnibwenednbes 15

Vasquez v. Raemisch, 480 F. Supp. 2d 1120 (D.

NI ohn eee a dd panageaabbookes 11

Wolff v. McDonnell, 418 U.S. 539 (1974)........0.0.c. 8,9

CONSTITUTIONAL PROVISIONS

Bde NIRS CAINE, Bas ssicsiéacissscasvccessceesesvensarennonace passim

ee I I PE od ssc nsicavacdncevudancnevéuenaesaceioun neal 15

STATUTES

I ot seb i Bubb eeianeocmeled 2

PETITION FORA WRIT OF CERTIORARI

Petitioners Warden Hugh Smith and Sanche

Jackson respectfully petition for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

511 F.3d 1317 (11th Cir. 2008), and is further repro-

duced in the Appendix to this Petition (“Pet. App.”) 1.

The order of the Court of Appeals denying the peti-

tion for rehearing en banc is not reported but is

reproduced in Pet. App. 63. Neither the district court

order denying the motion for summary judgment nor

the order denying the motion for reconsideration are

reported, but they are reproduced in Pet. App. 56 and

Pet. App. 42.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was en-

tered on January 7, 2008. Pet. App. 1. A timely filed

motion for rehearing en banc was denied on February

27, 2008. Pet. App. 63.

STATUTES INVOLVED:

RELEVANT PROVISIONS INVOLVED

Respondent Jamil Al-Amin seeks damages for an

alleged violation of his First Amendment rights

pursuant to 42 U.S.C. § 1983. The First Amendment

to the United States Constitution provides that

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assem-

ble, and petition the Government for a redress of

grievances.” U.S. Const. amend. [.

STATEMENT

This case presents the issue of whether the mere

opening, but not reading, of legal mail outside the

presence of an inmate violates the inmate’s First

Amendment rights. The Eleventh Circuit held that

it does — even though the court acknowledged that

doing so does not violate the inmate’s right to access-

to-courts, even though no other category of mail must

be opened in the inmate’s presence, and even though

this Court held in Shaw v. Murphy, 532 U.S. 223

(2001), that prison officials do not need to carve out

content-based exceptions to their general rules re-

garding prison communications. In so holding, the

Eleventh Circuit also expanded an existing circuit

split on the issue.

This case also presents an important issue re-

garding the scope of the qualified immunity defense.

The Eleventh Circuit held that petitioners are not

entitled to qualified immunity on respondent’s free

speech claim because a prior ruling of the court held

that opening inmates’ mail outside their presence

violates their right to access-to-courts. Moreover, the

court relied on its earlier access-to-courts ruling even

though it acknowledged that this Court’s decision in

Lewis v. Casey, 518 U.S. 343 (1996), meant that

prisoners cannot make out access-to-courts claims

based on mail being opened outside their presence.

All told, the Eleventh Circuit’s decision constitutes a

dramatic shrinking of state officials’ qualified immu-

nity.

1. District Court Proceedings

Jamil Al-Amin, formerly known as H. Rap

Brown, is serving a life sentence for the shooting of

two and killing of one law enforcement officer.’ He

filed suit, pro se, in the United States District Court

for the Southern District of Georgia claiming that the

Warden and Administrative Assistant (hereinafter

petitioners) at the maximum security prison in which

he was housed violated his right to access-to-courts

and his First Amendment right to free speech by

" See Al-Amin v. Wetherington, 165 Fed. Appx. 733 (11th Cir.

2006).

opening letters from his counsel outside of his pres-

ence.’ Al-Amin asserted that petitioners opened legal

mail from his attorney and wife, Karima Al-Amin.

(R1-1).

Upon realizing that Ms. Al-Amin’s letters came

from a law office, the Warden asked Al-Amin to

identify his attorneys. Al-Amin did so but did not

include the name of his wife on the list. (R2-19, Ex. B,

C, and D). As a result, petitioners treated Ms. Al-

Amin’s mail as non-legal mail. Jd. Al-Amin alleges

that, after he complained that his wife’s mail should

be treated as legal mail, petitioners continued to open

his mail from his wife. (R1-1-4-5, Ex. A-E). While Al-

Amin offered evidence that the envelopes containing

the correspondence had been opened outside his

presence, he never offered any evidence as to the

contents of the envelopes and made no showing that

the envelopes actually contained privileged materials.

Id.

Petitioners filed a motion for summary judgment

and argued, among other things, that even if Al-

Amin’s mail had been opened, there was no showing

of harm or a breach of privilege as a result of their

alleged conduct and thus no constitutional violation

occurred. (R1-17). Alternatively, the petitioners

* Initially Al-Amin alleged that prison officials read his mail

but this claim was abandoned on appeal. For purposes of the

proceedings in this Court, petitioners do not dispute that Ms. Al

Amin was acting as her husband’s attorney.

argued that they were entitled to qualified immunity

because it was not clearly established that their

conduct amounted to a constitutional violation. Jd.

The district court disagreed and found that the

opening of legal mail outside of the presence of the

inmate constituted a denial of access to the courts

and a violation of the First Amendment.’ Pet. App. 42.

The district court further found that petitioners were

not entitled to qualified immunity because it was

clearly established that prison officials could not open

legal mai! outside the presence of the inmate. Jd.

Petitioners filed a motion for reconsideration which

was denied. R2-28; Pet. App. 52. Petitioners filed an

interlocutory appeal on the denial of qualified immu-

nity.

2. Court of Appeals Proceedings

The Eleventh Circuit appointed counsel and the

parties agreed that the sole issue for appeal was the

opening of Al-Amin’s legal mail after prison officials

were notified by Al-Amin that his legal mail was

being opened. Pet. App. 10 n.13. In its decision, the

Court of Appeals reversed the district court on Al-

Amin’s access-to-courts claim. The Court of Appeals

noted that in Taylor v. Sterrett, 532 F.2d 462 (5th Cir.

1976), and Guajardo v. Estelle, 580 F.2d 748 (5th Cir.

* The parties consented to transfer the case to a magistrate

judge for disposition. In order to be consistent with references by

the court of appeals, petitioners will use the term “district

court.”

1978), the pre-1981 Fifth Circuit (whose decisions are

binding precedent in the Eleventh Circuit) held that

opening legal mail outside an inmate’s presence

violates the inmate’s access-to-courts right. The

Eleventh Circuit then analyzed whether Taylor and

Guajardo controlled in light of this Court’s interven-

ing decisions in Turner v. Safley, 482 U.S. 78 (1987),

and Lewis v. Casey, 518 U.S. 343 (1996). The court

concluded that Taylor and Guajardo survive Turner,

but that Aj-Amin’s access-to-courts claim must fail

under Casey. In Casey, this Court held that a consti-

tutional claim for a violation of the right to access-to-

courts requires evidence of actual harm to a non-

frivolous lawsuit. The Eleventh Circuit ruled that,

because Al-Amin failed to allege or present evidence

of actual] injury or damage to any case, his access-to-

courts claim must fail. Pet. App. 33.

The Eleventh Circuit, however, affirmed the

district court’s ruling that petitioners violated Al-

Amin’s free speech rights. In so doing, the court

specifically held that “(1) Al-Amin’s free speech claim

is distinct from his access-to-courts claim; (2) [peti-

tioners’| conduct violated his right to free speech; and

(3) [Al-Amin] need not show any actual injury beyond

the free speech violation itself to state a constitu-

tional claim.” Pet. App. 33. In making its decision, the

Court of Appeals relied on the principle that the use

of mail is a protected free speech right and that

inmates retain that right. Pet. App. 33. The court

ruled that opening incoming privileged mail “inter-

fere[d]” with Al-Amin’s ability to communicate with

his attorney and thus constituted a violation of his

right to free speech, even absent a showing of actual

harm to any case. Pet. App. 33. °

Finally, the Eleventh Circuit held that petition-

ers were not entitled to qualified immunity because

Taylor and Guajardo put them on notice that their

actions violated clearly established law. Pet. App. 38.

Fven though the Court of Appeals found no access-to-

courts violation, the court concluded that Taylor and

Guajardo (which were access-to-court cases) “clearly

establish[ | that a prison official violates an inmate’s

constitutional rights when the official opens attorney

mail outside the inmate’s presence.” Pet. App. 38-41.

And as to petitioners’ assertion that prior precedent

regarding access-to-courts claims does not clearly

establish the law with respect to inmates’ free speech

rights, the court ruled that “[wJe have never required

that, in order for an official to know that his conduct

is unlawful, a reasonable official must be able to cite

by chapter and verse all of the constitutional bases

that make his conduct unlawful.” Pet. App. 39. It is

fromm this decision that the prison officials seek certio-

rari.

REASONS FOR GRANTING THE PETITION

A writ of certiorari is warranted because the

Eleventh Circuit’s decision expands a split among the

circuits that have considered the underlying constitu-

tional question of whether the opening, but not

reading, of an inmate’s legal mail amounts to a First

Amendment violation separate and distinct from an

access-to-courts claim. Moreover, the holding wrongly

creates a new prophylactic legal rule whose very

premise is that prison officials are unwilling to abide

by the Constitution. The Eleventh Circuit’s qualified

immunity holding also warrants this Court’s review.

Its conclusion that prior circuit precedent on the right

to access-to-courts provided “fair notice” that peti-

tioners were violating respondent’s free speech rights

dramatically shrinks the protections qualified immu-

nity is intended to provide state officials.

I. CERTIORARI SHOULD BE GRANTED TO

REVIEW THE ELEVENTH CIRCUIT’S

HOLDING THAT INMATES HAVE A FIRST

AMENDMENT “FREE SPEECH” RIGHT TO

HAVE THEIR LEGAL MAIL OPENED ONLY

IN THEIR PRESENCE.

This Court conclusively decided that inmates

have a right to receive and send mail. Thornburgh v.

Abbott, 490 U.S. 401, 412 (1989); Procunier v. Marti-

nez, 416 U.S. 396, 413-414 (1974). The Court has

repeatedly clarified, however, that this right is not

absolute and that prison officials may subject in-

mates’ mail to inspection or perusal. Id.; Turner uv.

Safley, 482 U.S. 78 (1987). And the Court has specifi-

cally held that prison officials may inspect iegal mail

when opened in the presence of the inmate. Wolff v.

McDonnell, 418 U.S. 539, 577 (1974). In Wolff, the

Court ruled that, by opening legal mail in the presence

of the inmate, prison officials “have done ali, and

perhaps even more than the constitution requires.”

Id. at 577. The Court thereby left open the question

whether the Constitution permits prison officials to

open and inspect an inmate’s legal mail outs.we the

presence of the inmate.

After Wolff, many Courts found that the opening

of legal mail outside an inmate’s presence constituted

a violation of the inmate’s right to access to the

courts. This Court discredited these holdings in Lewis

v. Casey, 518 U.S. 343, 349 (1996), when it ruled that

an inmate cannot establish an access-to-courts claim

absent a showing of actual harm to a specific case. It

is difficult to imagine a prisoner making that showing

based on the mere opening of his legal mail by prison

officials. That did not resolve the opening-legal-mail

issue once and for all, however, because prisoners

separately asserted that opening legal mail outside

their presence violated their free speech rights. Many

lower courts have addressed that issue, and they

have reached conflicting results. In holding that

prison officials are constitutionally barred from

opening inmates’ legal mail outside their presence,

the Eleventh Circuit not only deepened that conflict,

but failed to abide by this Court’s precedents, and

diminished prison officials’ ability to manage their

institutions.

A. The Courts of Appeals Are Deeply Di-

vided On The Issue.

The Eleventh Circuit’s decision creates a 4-2 split

on whether opening inmates’ legal mail outside their

presence violates their free speech rights. The Elev-

enth Circuit decision directly conflicts with a materi-

ally indistinguishable Fifth Circuit decision. In

Brewer v. Wilkinson, 3 F.3d 816 (5th Cir. 1993), the

Fifth Circuit held that prison officials did not violate

an inmate’s right to access-to-courts or his rights

under the First Amendment when the prison officials

opened — but did not read — the inmate’s legal mail

outside of his presence. In overturning its decisions in

Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976), and

Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978), the

court found that where the inmate did not “allege

that [his] mail has been censored,” the violation of the

legal mail policy did not state a cognizable constitu-

tional claim. Brewer, 3 F.3d at 825. The Fifth Circuit

specifically relied upon this Court’s reasoning in

Turner v. Safely and acknowledged that while prison-

ers have a right to receive mail, that right did not

extend freedom from inspection. Jd.

The Seventh Circuit reached the same conclusion

in an unpublished decision. In Lewis v. Cook County

Bd. of Commissioners, 6 Fed. Appx. 428 (7th Cir.

2001), the court found that where prison officials

opened an inmate’s legal mail outside of his presence

his First Amendment rights were not violated. Spe-

cifically the Court found that, although the inmate

claimed that the opening of his legal mail had a

“chilling effect” on his speech, absent either an alle-

gation of a content-based prison practice or an allega-

tion that the legal mail was lost or delayed, he failed

to state a valid claim under the First Amendment. /d.

at 430. See also Vasquez v. Raemisch, 480 F. Supp. 2d

1120 (D. WI 2007) (attorney-client privilege is not a

constitutional right and thus opening of legal mail

does not amount to a constitutional violation subject

to the Turner v. Safley reasonableness analysis).

In contrast, the Second, ‘Third, Sixth, and Elev-

enth Circuits have held that prisoners have a First

Amendment right to have their legal mail opened in

their presence. In Davis v. Goord, 320 F.3d 346 (2nd

Cir. 2003), the Second Circuit held that the opening of

an inmate’s legal mail outside of his presence impli-

cates both his right to access to the courts and his

right to free speech. In doing so, the Court limited its

holding by noting that “an isolated incident” would

not support a claim. /d. at 351.

Likewise, in Jones v. Brown, 461 F.3d 353 (3rd

Cir. 2006), the Third Circuit determined that the

Department policy requiring that mail be opened off

site to avoid potential contamination from anthrax

was an unconstitutional infringement of the inmates’

First Amendment rights. In so finding, the court

found that the prison failed to show any evidence of a

connection between the mail policy and the threat of

an anthrax attack on New Jersey’s prisons. Id. at 364.

See also Bieregu v. Reno, 59 F.3d 1445 (3rd Cir. 1995).

And in Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir.

1994), the Sixth Circuit held that a policy of opening

legal mail from the Office of the Attorney General

outside his presence constituted a violation of the

inmate’s right to free speech. The court reasoned that,

even though there was no privileged communication

in the opened letters, the inmate’s First Amendment

rights were violated because of the potential chilling

effect on the inmate’s free speech. Jd. at 1083; see also

Powell v. Kelley, 782 F.2d 1043 (6th Cir. 1985).

OGnly this Court can resolve the circuit split and

ensure that constitutional limits on prison officials’

authority are uniform throughout the country. There

is no reason to believe that the conflict will disappear.

The Court’s decisions in Lewis v. Casey and (as dis-

cussed below) Shaw v. Murphy, 532 U.S. 223 (2001),

should have led the lower courts to agree with the

Fifth Circuit. Instead, the conflict is only increasing

as courts such as the Eleventh Circuit continue to

hamstring prison officials unnecessarily.

B. The Eleventh Circuit’s Decision Con-

flicts With Decisions of This Court.

In reaching its decision the Eleventh Circuit

relied on precedent that predated this Court’s deci-

sions in Turner v. Safley, 482 U.S. 78 (1987), and

Shaw v. Murphy, 532 U.S. 223 (2001). It is undis-

puted that prison officials may open prisoners’ mail

outside of their presence to inspect for contraband. Id.

This Court in Shaw rejected the idea that district

courts can carve out content-based exceptions in

applying the Turner test, and specifically rejected

carving out an exception for legal advice (there,

provided from one inmate to another). The Court held

that courts are not “permitted to enhance constitu-

tional protection based on their assessments of the

content of particular communications” and that the

“Turner test, by its terms, simply does not accommo-

date valuations of content.” Shaw, 532 U.S. at 228.

The decision of the Eleventh Circuit conflicts with

this holding by awarding “enhance[d] constitutional

protection” based on the presumed legal content of

the mail.

In addition, the Eleventh Circuit’s decision

allows prisoners to avoid the “actual injury” limita-

tion outlined in Casey by simply reclassifying the

claim as one under the First Amendment. The Court

found that the opening of Al-Amin’s legal mail

“chilled” his speech. The court made no finding that

the “chilled” speech would have related to a particu-

lar case or that Al-Amin was otherwise unable to

communicate with his coursel. To the contrary, the

Court specifically acknowledged that the evidence

provided by Al-Amin did not show an injury to “spe-

cific cases or claims being pursued, nor any deadlines

missed.” Courts have consistently held that mail can

be opened and searched. The alleged “injury” of

chilled speech exists as to all mail, not just legal mail;

absent evidence (not alleged here) that the right to

counsel or access to the courts has been impeded,

there is basis in the Constitution to treat legai mail

any differently than reguiar mail.

Finally, even assuming that the “chilling of

speech” in this context amounts to a constitutional

violation, it is the reading of mail not the opening of

the mail that creates the chilling effect. The Eleventh

Circuit’s ruling imposes, as a constitutional require-

ment, a prophylactic measure designed to avoid that

effect. Even in the cri‘ninal context where the accused

is clearly entitled to greater protection, the failure to

provide prophylactic protection, such as Miranda

warnings, does not in and of itself amount to a consti-

tutional claim. See United States v. Patane, 542 U.S.

630, 641 (2004). The claim from the failure to provide

a prophylactic measure arises only when the constitu-

tional violation occurs, not from the failure to prop-

erly administer the protection. Since Al-Amin and

other inmates suffer from no actual harm from the

simple opening of their legal mail, they do not state a

valid claim absent some prejudice to an existing

constitutional right such as the right to counsel or

access to the courts. In finding to the contrary, the

Eleventh Circuit improperly created a new constitu-

tional right without the requisite showing of injury.

C. The Eleventh Circuit’s Decision Im-

pedes The Safe and Secure Operation of

Prisons.

Neither the Eleventh Circuit decision nor Al-

Amin suggests that a prison does not have a right to

open and search non-legal mail outside of the in-

mate’s presence. Rather, the court adopted the prem-

ise that there is a right to have legal mail treated

differently. Once the Court accepted that there were

valid security reasons to search mail, the inquiry

should have stopped there. The question is not, “Is it

better to search legal mail in the presence of the

inmate,” but rather is it constitutionally required to

treat legal mail differently than other mail outside of

the context of the Sixth Amendment and the right to

access to the Courts. Since there is no such constitu-

tional right, the test for mail should be equally ap-

plied.

The distinction drawn by the Eleventh Circuit is

based upon the unrealistic belief that mail that

appears to be from an attorney is somehow less likely

to be forged or contain contraband and thus requires

a different application of the Turner analysis. First, in

this era of computer graphics, color copiers and

printers, the ingenuity of those seeking to circumvent

prison mail procedures should not be underestimated.

Moreover, just because an item is marked as legal

mail and is arguably from a legitimate source does

not necessarily mean that it is devoid of contraband.

See United States v. Young, 146 Fed. Appx. 824 (6th

Cir. 2005) (inmates planned to smuggle hacksaw

blade into institution under guise of legal mail);

Felton v. Lincoln, 429 F. Supp. 2d 226 (D. Mass. 2006)

(inmate bragged that he had fraudulently communi-

cated with friends who sent letters in phony attorney

envelopes); Harper v. Beard, 2:05CV01803, 2007 U.S.

Dist. LEXIS 55044 (D. Pa. April 23, 2007) (noting that

escape attempt was facilitated through use of mail

marked as legal mail). To presume that every letter

that appears to be from a lawyer warrants constitu-

tional protection beyond that applied to other mail

expands the protections afforded by the Constitution

and in doing so jeopardizes the safety of the prisons.

Il. THE ELEVENTH CIRCUIT DECISION IS

CONTRARY TO THIS COURT’S QUALIFIED

IMMUNITY PRECEDENT

The lower court’s decision is contrary to this

Court’s qualified immunity precedent. The Eleventh

_ Circuit found that the law was clearly established

despite the existence of intervening Supreme Court

precedent that overrules or diminishes the circuit

court authorities that purportedly “clearly estab-

lished” the law. In addition, the Eleventh Circuit

mistakenly held that the law regarding a specific

constitutional right, in this case an inmate’s right to

access-to-courts, can “clearly establish” the law of a

separate and distinct constitutional right, in this case

the First Amendment right to free speech.

In so holding, the Eleventh Circuit reasoned as

follows: “[O]ur precedent... clearly establishes that a

prison official violates an inmate’s constitutional

rights when the official opens attorney mail outside

the inmate’s presence. See Taylor, 522 F.2d at 462;

Guajardo, 580 F.2d at 748. Thus, we conclude that

defendants had fair and clear notice that opening Al-

Amin’s attorney mail outside his presence was unlaw-

ful and violated the Constitution.” Slip Op. 37. It does

not matter, held the Eleventh Circuit, that Taylor and

Guajardo involved access-to-court claims, while Al-

Amin’s only surviving claim is based on the Free

Speech Clause. The court stated, “We have never

required that, in order for an official to know his

conduct is unlawful, a reasonable official must be able

to cite by chapter and verse all of the constitutional

bases that make his conduct unlawful.” Slip Op. 37.

That reasoning misreads Lewis v. Casey, wrongly

conflates access-to-court claims and free speech

claims, ignores the Fifth Circuit’s rejection of Taylor

and Guajardo, and dilutes the fair notice require-

ment. Prior to the Eleventh Circuit’s decision, the law

in the Eleventh Circuit did not clearly establish that

prison officials violate the Free Speech Clause when

they open a prisoner’s legal mail outside his presence.

The Eleventh Circuit’s holding to the contrary over-

deters prison officials and merits this Court’s review.

A. The Opinion Below Misreads Lewis v.

Casey.

The Eleventh Circuit’s reasoning is premised on

the notion that petitioners did, in fact, violate Al-

Amin’s clearly established constitutional right of

access-to-courts. In the Court of Appeals’ view, Al-

Amin may lack standing under Lewis v. Casey to

assert that constitutional violation, but this does not

negate the fact that petitioners had “‘fair warning’

..,. that that their precise conduct (opening an in-

mate’s attorney mail outside his presence) is unlawful

and a constitutional violation.” Slip Op. 36. That

reasoning fundamentally misconstrues the holding of

Lewis v. Casey.

In Casey, this Court clarified that the right

protected by the access-to-courts doctrine is not “the

right to a law library or to legal assistance,” but

rather is the “right of access to the courts.” 518 U.S. at

350 (emphasis in original). A prisoner who cannot

show that prison officials “hindered his efforts to

pursue a legal claim,” Jd. at 351, has failed to estab-

lish an essential element of his access-to-courts claim.

Casey thereby instructed prison officials throughout

the country that they do not violate the Constitution

when they impede access to legal assistance in a

manner that does not “hinder[ ]” a prisoner’s “efforts

to pursue a legal claim.” It follows that petitioners

were not given “fair notice” that their practice of

opening Al-Amin’s legal mail outside his presence —

which undisputedly did not impede his access-to-

courts — violated the Constitution.

To be sure, the Court in Casey described the

“actual injury” requirement as being related to the

standing doctrine. See id. at 349. Any assessment of

that requirement, however, required a precise defini-

tion of the right in question. As the Court observed, if

“the right at issue — the right to which the actual or

threatened harm must pertain — were the right to a

law library or to legal assistance,” a mere claim that the

prison law library was inadequate would state a claim.

Id. at 350. But, as noted, the Court held that “the right

at issue” was far narrower and requires a showing that

prison officials were blocking a prisoner’s “efforts to

pursue a legal claim.” When prison officials do not

“hinder[]” a prisoner’s “efforts to pursue a legal

claim,” they do not violate the constitutional right of

access-to-courts. It is undisputed that Al-Amin has

not made that showing here. The Eleventh Circuit

was therefore wide of the mark when it concluded

that, even though petitioners did not violate Al-

Amin’s right to access-to-courts, they had “fair warn-

ing” that opening Al-Amin’s legal mail outside his

presence somehow still violated the Constitution.

B. The Law Regarding Al-Amin’s Free

Speech Rights Was Not Clearly Estab-

lished.

1. The Eleventh Circuit’s next erroneous leap of

logic was to assume that, because (in the court’s view)

xTaylor and Guajardo clearly established that peti-

tioners’ conduct violated Al-Amin’s right of access-to-

courts, it necessarily follows that they had clear

notice their actions violated Al-Amin’s free speech

rights. That reasoning incorrectly assumes that

prisoners’ right of access-to-courts is coterminous

with their free speech right. In fact, many access-to-

court claims do not state First Amendment claims

and vice versa. Clear notice concerning the access-to-

court doctrine (even were that present here) does not

provide clear notice of what conduct violates prison-

ers’ First Amendment rights.

At its most basic, the right to access guarantees

meaningful access to the courts. Bounds v. Smith, 430

U.S. 817, 823 (1997). As clarified in Casey, it is the

right to bring a grievance to court. Casey, 518 U.S. at

354. The right is not unlimited, and extends only to

providing the tools needed for inmates to attack their

sentences and challenge their conditions of confine-

ment. Jd. at 355. Casey recognized that all “other

litigating capacity” is incidental to the consequences

of conviction and incarceration. Jd. Thus, as it relates

to prison officials, the right to access-to-courts pro-

tects only against interference with inmates’ attempts

to prepare and file legal documents. Jd. at 350.

The contours of inmates’ right to free speech are

very different. Inmates retain only those free speech

rights that are “not inconsistent with [their] status as

prisoner[s] or with the legitimate penological objec-

tives of the corrections system.” Pell v. Procunier, 417

U.S. 817, 822 (1974). Inmates’ speech may be curbed

if the restriction is related to a legitimate penological

objective. Turner, 482 U.S. at 89. Turner’s fact-based

four-part test is used to determine reasonableness,

and looks to the relationships between restriction, the

governmental interest, the right being exercised, the

impact on the allocation of prison resources, and the

existence of alternative. Jd. at 89-90.

Thus, there are substantial differences between

the standards that govern these separate and distinct

constitutional rights. The analysis for the right to

access-to-courts looks to the narrow issue of whether

there is interference with attempts to prepare and file

legal documents, while the free speech analysis

engages in the highly-fact-intensive Turner balancing

test that incorporates several different factors. Given

these differences, reasonable prison officials would

not know that a violation of the access-to-courts

doctrine necessarily means a violation of free speech.

2. The Fifth Circuit’s ruling in Brewer v. Wilkin-

son further undermines the Eleventh Circuit’s con-

clusion that petitioners were on “fair notice” that

their opening of Al-Amin’s mail violated the First

Amendment. As discussed earlier, in Brewer the Fifth

Circuit concluded that Turner v. Safley undermined

its earlier rulings in Taylor and Guajardo. Brewer, 3

F.3d at 823-24. The Fifth Circuit therefore overruled

Taylor and Guajardo, and held that neither the right

of access-to-courts nor the First Amendment is vio-

lated when prison officiais open prisoners’ legal mail

outside their presence. /d.

Prison officials in the Eleventh Circuit surveying

the legal landscape between 2003 and 2005 would

have had good reason to believe that Taylor and

Guajardo no longer controlled. As even the Eleventh

Circuit recognized here, Lewis v. Casey undercut

those cases’ access-to-courts holdings. And the other

circuit covered by Taylor and Guajardo repudiated

those decisions. The state of the law with respect to

where prisoners’ legal mail may be opened was any-

thing but clear.

In this case the Eleventh Circuit relied on case

law that has been called into serious doubt as a result

of intervening Supreme Court case law. As a result,

prison officials could not possibly have been put on

notice that their conduct was unconstitutional. Nor

could prison officials have had notice that case law

discussing inmates’ constitutional rights to access-to-

courts clearly established inmates’ constitutional

rights to free speech. The decision of the lower court

puts the law in flux. Prison officials will be hesitant

to act in any situation for fear that their conduct may

later be found to violate an as yet undefined constitu-

tional right. Such a finding conflicts with the basic

purpose of qualified immunity. As stated by this

Court, “‘officials should not err always on the side of

caution’ because they fear being sued.” Hunter v.

Bryant, 502 U.S. 224, 229 (1991).

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

DEVON ORLAND |

Counsel of Record

40 Capitol Square

Atlanta, Georgia 30334

(404) 463-8850

Attorney for Petitioners

App. l

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 06-15248

D. C. Docket No. 05-00025-CV-6

JAMIL AL-AMIN,

Plaintiff-Appellee,

versus

WARDEN HUGH SMITH,

ADMIN. ASST. SANCHE M. MARTIN,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Georgia

(Filed January 7, 2008)

Before TJOFLAT, HULL and WILSON, Circuit

Judges.

HULL, Circuit Judge:

In this 42 U.S.C. § 1983 action, plaintiff-appellee,

a state prisoner, alleges that defendants-appellants

repeatedly opened his privileged attorney mail out-

side of his presence and thereby violated his constitu-

tional rights to access to the courts and free speech.

App. 2

Defendants appeal the denial of their motion for

summary judgment on qualified immunity grounds.

After review and oral argument, we reverse the

district court’s qualified immunity ruling as to plain-

tiff’s access-to-courts claim but affirm as to plain-

tiff’s free speech claim.’

I. BACKGROUND

From 2002 to 2007, plaintiff Jamil Al-Amin was a

prisoner at Georgia State Prison (“GSP”), operated by

Georgia’s Department of Corrections (“DOC”).’ De-

fendants are Hugh Smith, GSP warden, and Sanche

Martin, his assistant.

A. DOC’s Mail Policy

The DOC policy known as “SOP I[IB04-0001”

provides certain mail privileges to inmates at Georgia

prisons. Specifically, SOP IJB04-0001 provides that

correspondence between inmates and their attorneys

is “privileged mail.” An inmate’s attorney includes

“any attorney with whom the inmate has had, or is

attempting to establish, an attorney client relation-

ship” and who is licensed to practice in state or

' The parties consented to transfer the case to a magistrate

judge, but, for simplicity, we use the term “district court.”

> Al-Amin entered the DOC on March 23, 2002. In August

2007, the state transferred Al-Amin to a federal prison, citing

security concerns. Al-Amin is still serving a state life sentence

but is housed in a federal facility.

App. 3

federal courts. The policy provides for external inspec-

tion of privileged mail “by fluoroscope, metal detect-

ing device, or manual inspection for the purpose of

detecting contraband.”

Folicwing an external inspection, “an appropri-

ately designated staff member may open and inspect

(but not read) all privileged mail in the presence of the

inmate/probationer to whom ?t is addressed.” Thus,

under DOC’s own policy, GSP may not read Al-Amin’s

attorney mail and may open it only in his presence."

B. Mail from Al-Amin’s Wife

In 2002, plaintiff’s wife, Karima Al-Amin (“Karima”)

began sending legal correspondence mnarked “legal

mail” to him. Karima is a licensed attorney practic-

ing in Atlanta, Georgia.

. From April 13, 1999 to August 1, 2004, defendant

Martin oversaw the daily operations of the prison

mailroom.’ Martin admits that, in April 2002, she

accidentally opened a letter from Karima. As Martin

* The DOC policy also states that incoming privileged mail

“shall be treated as privileged only if the name and official

status of the sender appears commercially printed on the

envelope.” Incoming privileged mail may be held for two days to

allow officials to verify the privileged status of the sender.

‘In this opinion we use the terms “privileged mail” and

“attorney mail” interchangeably.

* During the Christmas holidays in 2004 and 2005, Martin

also worked in the mailroom but did not supervise any mail staff

at that time.

App. 4

resealed the letter, she saw that Karima was an

attorney and that. the letter came from Karima’s law

office. Martin informed Warden Smith that Al-Amin

had received “mail of a personal nature” from his

attorney-wife.

In May 2002, Warden Smith asked Al-Amin for a

list of his attorneys of record. Smith asked for the list

because Al-Amin had a number of attorneys and

Smith did not want mailroom staff opening Al-Amin’s

legal mail outside Al-Amin’s presence. Al-Amin gave

Smith the names of five attorneys, but did not include

Karima.” Because Al-Amin did not identify Karima as

one of his attorneys, Smith informed Martin and

other mailroom staff that Karima’s letters should be

treated as regular mail. According to Smith and

Martin, Al-Amin and Karima never informed them

that Karima was representing Al-Amin.

C. August 2003 Grievance

In 2003, Officer James Jones, who brings legal

mail to inmates, told Al-Amin that Martin was open-

ing legal mail from Karima. Al-Amii then filed an

August 2003 grievance alleging that Martin had

“knowingly[,] ignoring and disregarding D.O.C. Policy,

* The attorney list is contained in a memorandum from

Warden Smith to the inmate file, which states that Al-Amin

“submitted the below list” to Lt. Larry Brewton. While Al-Amin

does not remember submitting a list in May 2002, he does not

deny that this occurred.

App. 5

instructed that my Legal Mail is to be opened.” Al-

Amin’s grievance listed his nine attorneys, including

his wife. Al-Amin requested that his privileged mail

be treated as such.

On September 19, 2003, Warden Smith denied

the grievance, stating that “[n]o evidence was found

to support the allegations you made against Ms.

Martin. Mail is processed within established guide-

lines.” On September 25, 2003, Al-Amin filed a griev-

ance appeal, repeating his allegations and stating

that “[m]y wife is one of my lawyers and should be

shown the respect of any attorney.”

On November 13, 2003, as part of the grievance

investigation, Theresa Jarriel submitted a sworn

statement based on a telephone interview with Mar-

tin. Martin told Jarrie! that: (1) when Al-Amin came

to GSP, he received legal mail in envelopes with

preprinted business labels from his wife; (2) “a lot of

the privileged mail had personal letters in it although

some of the envelopes contained legal transcripts and

such”; and (3) because Al-Amin was asked to list his

attorneys and Karima was not included, Warden

Smith instructed mailroom staff to open all mail

received from Karima, whether privileged or not,

before taking it over to Al-Amin’s building.

On November 14, 2003, Warden Smith submitted

a sworn statement that “Al-Amin’s legal mail received

from any attorney of record is opened in his presence

as established in policy. Mail received from his wife

who I am told is an attorney or legal representative

App. 6

has been opened outside of inmate Al-Amin’s pres-

ence.” On November 18, 2003, Smith sent a memo-

randum to the DOC’s Assistant Regional Director and

the lead investigator for Inmate Affairs and Appeals

stating that mail arriving for Al-Amin would be

processed as privileged mail as long as it met. the

criteria under the mail policy.

D. November 25, 2003 Grievance Response

On November 25, 2003, Raymond Head, manager

of the Inmate Affairs Unit, issued a grievance re-

sponse. According to Head’s response, Al-Amin’s

allegation was “referred to the appropriate staff for

appropriate action to ensure this does not occur again

in the future.” Warden Smith received Head’s griev- |

ance response and instructed Martin to now treat all

mail from Karima as legal, privileged mail and to

open it in Al-Amin’s presence. Martin, in turn, in-

structed the mailroom staff to treat mail from Karima

as legal mail.

In her affidavit, Martin states that after Novem-

ber 25, 2003, she treated all of Karima’s mail as legal

mail and she never opened any of it outside Al-Amin’s

presence.’ Martin avers that she never instructed or

" Prison records indicate that the only time that Al-Amin’s

privileged mail was opened outside of his presence was Decem-

ber 31, 2002, when a letter from Associated Legal Services was

opened by mistake. However, we note that Martin herself admits

opening a letter from Karima’s law office in Apri] 2002. Also,

Warden Smith admits that in 2002 he informed Martin and the

(Continued on following page)

App. 7

permitted any individuals to inspect Al-Amin’s privi-

leged mail.* If any of Karima’s mail was opened

outside Al-Amin’s presence after November 25, 2003,

Martin states, “it was inadvertently done by the mail

room sorter.”

According to Warden Smith’s affidavit, he was

not aware that any of Karima’s mail was treated as

non-privileged after November 25, 2003. Had Smith

known that mailroom employees were treating

Karima’s mail as non-privileged, he would have

corrected the situation.

In contrast, Al-Amin testified that legal mail

from Karima continued to be opened outside his

presence even after Head’s November 25, 2003 griev-

ance response. Al-Amin points to thirteen envelopes

(attached to his complaint) mailed between June 28,

2004 and February 8, 2005 as legal mail opened

outside his presence.’ Further, in 2005, Karima

mailroom staff that letters from Karima should be treated as

regular mail.

* As the warden’s designee under the mail policy, Martin

was permitted to inspect Al-Amin’s nonprivileged mail outside

his presence.

* Al-Amin’s complaint describes a second grievance (“No.

517-04-2332”), filed on October 14, 2004, which alleged that his

privileged mail was still being opened and read outside of his

presence. Warden Smith denied the grievance, and Al-Amin

appealed. On December 1, 2004, Head informed Al-Amin that

every effort was being made by mailroom staff to ensure that all

legal mail was opened in the presence of the prisoner to whom it

(Continued on following page)

App. 8

questioned Warden Smith about the continual open-

ing of Al-Amin’s legal mail. Smith replied that the

opened mail from Karima was mail from her home of

a personal nature. Karima informed Smith that all

communications had been duly marked as “legal

mail” and that she had not sent any mail from her

home.

E. Al-Amin’s Complaint

On March 21, 2005, Al-Amin filed a § 1983 com-

plaint against Warden Smith and Martin in their

individual capacities.” Attached to the complaint are

photocopies of the thirteen envelopes between June

28, 2004 and February 8, 2005, which he alleges were

improperly opened before reaching him.” The return

address on each envelope is Karima’s law office

address and each is marked “legal mail.” Four of the

envelopes are also marked “attorney-client privilege.”

was addressed. The record contains no other evidence of this

grievance.

° Al-Amin also sued defendants in their official capacities.

In a July 18, 2005 order, the district court dismissed the official

capacity claims as barred by the Eleventh Amendment. A]-Amin

did not appeal this ruling, and thus we do not address his

official capacity claims.

' Although there are fourteen envelopes, the parties refer

to thirteen envelopes and we assume that they are dropping the

one that is not legible.

. App. 9

Al-Amin’s lawsuit seeks damages for only these

thirteen letters.”

However, as background, Al-Amin’s complaint

stresses that during 2003 defendants had previously

opened and read his attorney mail and been told to

stop. According to Al-Amin’s complaint, during 2003,

Martin knowingly violated the DOC policy by in-

structing mailroom staff to open and read his legal

mail outside his presence and GSP staff continued to

do so even after Head’s November 25, 2003 directive

to treat Al-Amin’s legal mail as privileged.

Al-Amin’s complaint further alleges that Martin’s

authorizing of GSP mailroom staff to continue to open

and read all of Al-Amin’s privileged mail from Karima

violated not only the DOC mail policy but also his

constitutional rights. As to Warden Smith, the com-

plaint alleges that, after Al-Amin’s grievance was

sustained, Smith knowingly failed to take corrective

actions to ensure that Al-Amin’s legal mail was not

opened and read outside Al-Amin’s presence, thereby

violating his constitutional rights.

Al-Amin requests: (1) a declaratory judgment

that defendants violated his constitutional rights; (2)

” At his deposition, Al-Amin testified that after his com-

plaint was filed, he received a piece of “legal” mail that was

opened. On August 23, 2005, Officer Oliver took a letter from

Karima to Al-Amin and stated that “it’s already been opened.”

There is no testimony about what was on the front of the

envelope, and Al-Amin has not filed this envelope in the record.

App. 10

a permanent injunction ordering defendants to open

his attorney mail only in his presence; (3) nominal

and punitive damages; and (4) attorney’s fees.”

F. Cross Motions for Summary Judgment

Defendants’ motion for summary judgment

argued that Al-Amin had shown no constitutional

violation because Al-Amin: (1) did not list his wife on

his attorney-of-record list and therefore his wife's

mail was not privileged; and (2) did not articulate any

actual injury caused by his alleged denial of court

access. Defendants also argued that they were enti-

tled to qualified immunity because they had no fair

warning that their actions were unconstitutional.

In response, Al-Amin moved for summary judg-

ment, arguing that: (1) defendants knew that Karima’s

'’ Although Al-Amin initially alleged that GSP staff read his

attorney mail, Al-Amin also claimed that even if his mail was

not read, he has a constitutional right to have his properly

marked attorney mail opened only in his presence, apart from his

right to receive unread attorney mail. The district court’s orders

on appeal addressed only Al-Amin’s “mail opening” claim and its

limiting its orders to Al-Amin’s “mail opening” claim is not

challenged before this Court.

Indeed, defendants do not contend that they are entitled to

read Al-Amin’s attorney mail. Nor do defendants deny that the

law is well established that Al-Amin has a constitutional right

that precludes them from reading Al-Amin’s attorney mail.

Instead, defendants contend that there was no well-established

constitutional right requiring them to open attorney mail only in

Al-Amin’s presence. For these reasons, we address only Al-

Amin’s “mail opening” claim.

App. 1l

letters were privileged attorney mail from the enve-

lopes themselves, which bore her law firm address

and were labeled “legal mail”; (2) the DOC mail policy

did not require Al-Amin to list his attorneys; and (3)

even after Head’s November 25, 2003 instruction not

to open legal mail from Karima outside Al-Amin’s

presence, defendants continued to do so.

G. District Court’s Two Orders

In an August 23, 2006 order, the district court

denied the parties’ cross motions for summary judg-

ment as to Al-Amin’s attorney mail claim. The

district court concluded the law was clearly estab-

lished in 2003-04 that prison officials violate an

inmate’s First Amendment rights by opening properly

marked legal mail outside the inmate’s presence.”

However, the district court determined that material

'* Al-Amin’s complaint also contains a retaliation claim,

which the district court dismissed without prejudice due to Al-

Amin’s failure to exhaust his administrative remedies on that

claim. This appeal does not involve Al-Amin’s retaliation claim.

’’ The district court noted that for mai. to be treated as

privileged legal mail, the state may require: (1) that legal mail

be specially marked as originating from an attorney with the

attorney's name and address; and (2) that an attorney desiring

to communicate with a prisoner first identify herself and her

client to prison officials to assure that letters marked privileged

are actually from members of the bar. See Wolff v. McDonnell,

418 U.S. 539, 576-77, 94 S. Ct. 2963, 2985 (1974). The district

court observed that DOC’s SOP IIB04-0001 required that

attorney mail be specially marked, but did not require an

attorney to first identify herself and her client to prison officials.

App. 12

fact issues existed as to whether the mail in question

met the standards for privileged mail, whether prison

officials required Al-Amin to list his attorneys, and

whether Al-Amin suffered actual injury.

The district court’s September 19, 2006 order

denied defendants’ motion for reconsideration, con-

cluding that Al-Amin’s complaint stated claims for

violations of his rights to access to the courts and free

speech. Defendants appeal both orders.

II. QUALIFIED IMMUNITY

On appeal, Al-Amin does not challenge the DOC

policy that permits GSP employees to open incoming

attorney mail in his presence. Rather, Al-Amin’s

claims are that defendants, in repeatedly opening his

attorney mail outside his presence, violated not only

that prison policy but also his constitutional rights to

access to the courts and free speech. In this interlocu-

tory appeal, the sole question is whether defendants

are entitled to qualified immunity on Al-Amin’s

access-to-courts and free speech claims.

“Qualified immunity offers complete protection

for government officials sued in their individual

capacities if their conduct ‘does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.’” Vinyard v.

Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (citation

omitted). To receive qualified immunity, a govern-

ment official must first establish that he was acting

within his discretionary authority. McClish v. Nugent,

App. 13

483 F.3d 1231, 1237 (11th Cir. 2007); Vinyard, 311

F.3d at 1346. Here, Warden Smith and Martin were

acting within their discretionary authority as to

inmates’ mail,

Once a government official establishes that he

was acting within the scope of his discretionary

authority, the burden shifts to the plaintiff. McClish,

483 F.3d at 1237; Vinyard, 311 F.3d at 1346. The

Supreme Court has set forth a two-part test for

qualified immunity. Vinyard, 311 F.3d at 1346 (citing

Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508 (2002)).

First, a court must undertake the threshold inquiry of

whether the plaintiff’s allegations, if true, establish a

constitutional violation. Jd. If a constitutional right

would have been violated under the plaintiff’s ver-

sion of the facts, the next question is whether the

constitutional right was clearly established. Id. The

right must have been clearly established at the time

of the alleged violation. Jd. at 1349. Further, “(t]he

relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be

clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v.

Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001).

Stated another way, “the salient question ... is

whether the state of the law [at the time of the events

in question] gave respondents fair warning that their

alleged treatment of [the plaintiff! was unconstitu-

tional.” Hope, 536 U.S. at 741, 122 S. Ct. at 2516.

We first analyze whether Al-Amin’s claims estab-

lish any constitutional violations.

App. 14

Ill, AL-AMIN’S ACCESS-TO-COURTS CLAIM

A. Al-Amin’s Version of Facts

Defendants argue that even if opening attorney

mail outside an inmate’s presence violates the Consti-

tution, Al-Amin has not shown a constitutional viola-

tion because he never listed Karima as one of his

attorneys and there was no evidence that Karima was

Al-Amin’s attorney. The problem for defendants is

that in qualified immunity cases on interlocutory

appeal, we accept the plaintiff’s version of the facts

and resolve only legal questions. See Andujar uv.

Rodriguez, 486 F.3d 1199, 1202 (11th Cir.), cert.

denied, 128 S. Ct. 385 (2007); Robinson v. Arrugueta,

415 F.3d 1252, 1257 (11th Cir. 2005); Vinyard, 311

F.3d at 1346 n.7.

Al-Amin testified that Karima was his attorney.

All thirteen enveiopes in issue were sent after Head’s

November 15, 2003 response sustaining Al-Amin’s

grievance about GSP improperly opening his attorney

mail from Karima. Although Karima was not on the

May 2002 list, defendants knew, at least by Novem-

ber 25, 2003, that Karima was Al-Amin’s attorney

and that her properly marked attorney mail should

be opened only in Al-Amin’s presence. After receiving

Head’s response, defendants even gave instructions

that Karima’s legal mail should be opened only in Al-

Amin’s presence. The thirteen envelopes were all

marked “legal mail” with Karima’s full name and

law office address on them, but were opened before

App. 15

reaching Al-Amin.” Accordingly, we reject defendants’

argument that Al-Amin has not shown constitutional

violations on this basis.

B. Clearly Established Law

Defendants alternatively argue that the law was

not clearly established that opening attorney mail

outside an inmate’s presence violates his constitu-

tional right to access to the courts.

The Supreme Court has long held that “prisoners

have a constitutional right of access to the courts.”

Bounds v. Smith, 430 U.f 817, 821, 97 S. Ct. 1491,

1494 (1977)." Further, unde> our binding precedent, a

prisoner’s constitutional right of access to the courts

requires that incoming legal mail from his attorneys,

'* While Martin contends that the envelopes may have been

opened by “a mail sorter,” the envelopes were undisputedly

opened before reaching Al-Amin. Martin’s affidavit uses the

term “mail sorter” without explanation of whether that is a

person or a machine. In either event, Al-Amin claims that his

attorney mail was illegally opened outside his presence even

after his grievance was sustained and defendants were in-

structed not to do so.

" The majority opinion in Bounds did not identify the

constitutional provision underlying that right. See Bounds, 430

U.S. at 833-34, 97 S. Ct. at 1501 (“The [majority opinion] leaves

us unenlightened as to the source of the ‘right of access to the

courts.’”) (Burger, C.J., dissenting). Recently we indicated that

the constitutional right of access to the courts is “grounded in

the First Amendment, the Article IV Privileges and Immunities

Clause, the Fifth Amendment, and/or the Fourteenth Amend-

ment.” Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003).

App. 16

properly marked as such, may lve opened only in the

inmate’s presence and only to inspect for contraband.

See Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976);

Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978).”°

Defendants argue that Taylor and Guajardo are

no longer good law due to the Supreme Court’s inter-

vening decision in Turner v. Safley, 482 U.S. 78, 107

S. Ct. 2254 (1987). Defendants point out that the

Fift:: Circuit, post-Turner, rejected the holdings of

Taylor and Guajardo and argue that we should do the

same. See Brewer v. Wilkinson, 3 F.3d 816 (5th Cir.

1993). Al-Amin responds that post-7urner, several

other circuits have concluded that inmates have

constitutionally protected rights to have properly

marked attorney mail opened only in their presence.

We review these cases in detail in order to explain

why Taylor and Guajardo’s holdings — that a prisoner

has constitutional rights to have his attorney mail

opened only in his presence — are not changed by

Turner, and remain well-established law in this

circuit. We begin with Taylor and Guajardo.

* See also Barlow v. Amiss, 477 F.2d 896, 898 (5th Cir.

1973) (stating that “[wJhile the control of prison mail is a matter

of internal prison administration with which the federal courts

are loath to interfere, the denial of free and unfettered commu-

nication between inmates ... and attorneys may constitute a

denial of federal constitutional rights”) (citations omitted). In

Bonner v. City of Prichard, 661 F.2d 1206, 1208 (11th Cir. 1981)

(en banc), this Court adopted as binding precedent all decisions

of the former Fifth Circuit handed down prior to close of busi-

ness on September 30, 1981.

App. 17

C. Taylor and Guajardo

In Taylor, prison officials challenged a restriction,

imposed by a district court order, forbidding them

from opening an inmate’s attorney mail except in that

inmate’s presence. Taylor, 532 F.2d at 464. The Taylor

Court concluded that an inmate’s constitutional right

of access to the courts “supports that portion of the

district court’s order requiring that incoming prisoner

mail from ... attorneys ... be opened only in the

presence of the inmate.” Jd. at 475.”

In reaching this result, the Taylor Court weighed

“the burden on the prisoner’s access to the courts

against the legitimate governmental interest of

prison security.” Id. at 472. The Court noted that

“(blefore procedures that impede a prisoner’s access

* Although Taylor also addressed other types of mail be-

tween inmates and prosecuting attorneys, courts, and probation/

parole officers, we focus on only attorney mail in this case.

Additionally, prison officials in Taylor challenged the

district court’s ruling that attorney mail could not be opened,

even in an inmete’s presence, unless “there is a reasonable

possibility that contraband is included in the mail.... ” Jd. at

464. We upheld the requirement of opening only in the inmate’s

presence as constitutionally compelled, but rejected the addi-

tional restriction that there must be a “reasonable possibility” of

contraband before opening the mail to check for contraband. Id.

at 469. The Taylor Court noted, however, that “[t]his inspection

is limited to locating contraband. It does not entail reading an

enclosed letter. It should be emphasized that this requirement

does not preclude a ‘probable cause’ search or seizure of the

envelope and its contents in the appropriate circumstances.” Jd.

at 475.

App. 18

to the courts may be constitutionally validated, it

must be clear that the state’s substantial interests

cannot be protected by less restrictive means.” Id.

The government interest was “jail security as affected

by the introduction of contraband into the jail and by

the communication of escape plans or other . . . crimi-

nal activities.” Id. at 473. The Court :dentified the

“basic prisoner interest” in “uninhibited communica-

tion with attorneys.” Id. at 475.

The Taylor Court concluded that “[a]llowing the

inspection of incoming inmate mail from [attorneys]

only in the presence of the inmate accomplishes a

compromise of [those] two important interests with-

out sacrificing either of them.” Jd. at 477.” “Prisoners

are not inhibited in using this traditional communica-

tion medium to pursue their defense or to present

their legal grievance. And jail officials are not denied

” The Taylor Court looked to the Supreme Court’s guidance

from Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963 (1974).

However, because of the procedural posture in Wolff, the Su-

preme Court did not actually decide the issue of whether

opening a prisoner’s legal mail in the prisoner’s presence was

constitutionally required. Instead, in Wolff, the petitioner-prison

officials agreed that they could not open and read incoming legal

mail but argued that they “may open all letters from attorneys

as long as it is done in the presence of the prisoners.” Wolff, 418

U.S. at 575, 94 S. Ct. at 2984. In agreeing that opening legal

mail in a prisoner’s presence was permissible, the Supreme

Court concluded that “petitioners, by acceding to a rule whereby

the inmate is present when mail from attorneys is inspected,

have done all, and perhaps even more, than the Constitution

requires.” Id. at 577, 94S. Ct. at 2985.

App. 19

the use of any mai} procedure shown to be essential to

jail security.” Jd. In other words, the inmate’s pres-

ence insures that attorney mail will not be read and

prison officials are assured that the mail contains no

contraband.”

Similarly, in Guajardo, prison officials appealed

a district court’s ruling that incoming attorney mail

could be opened and inspected for contraband only in

the inmate’s presence. Guajardo, 580 F.2d at 757.

The Guajardo Court followed Taylor’s holding that

“incoming [legal] mail could be opened only to in-

spect for contraband and in the presence of the

inmate recipient.” Jd. at 758. The Court noted that

Taylor’s requirement “derived from the nature of the

correspondence involved” and that “(t]he protection

afforded extends only to attorneys representing or

being asked to represent an inmate in either a crimi-

nal or civil matter.” Id. at 758. The Court dismissed

concerns about inmates using attorneys to violate

prison rules because attorneys are bound by profes-

sional standards and would face criminal sanctions.

* The Taylor Court, in holding that legal mail must be

opened in the presence of the inmate, stated that “[clonsistent

with [Wolff], we think it permissible that prison officials require

attorneys wishing to correspond confidencially with prisoners

first to identify themselves by means of a signed letter.” Jd. at

475 n.20. The Court identified a procedure ordered by a district

court as “one approach to this problen.. There, an attorney was

required to enclose confidential writings in a sealed envelope to

be mailed to the prison inside a larger envelope containing a

signed ietter.” Jd. (discussing Marsh v. Moore, 325 F. Supp. 392

(D. Mass. 1971)).

App. 20

Id. at 758-59. The Court concluded that “(t]he danger

to prison security, order and rehabilitation does not

outweigh the right of access to the courts.” Id. at 759.

D. Turner v. Safley

We would end our clearly established law analy-

sis with Taylor and Guajardo but for the intervening

Supreme Court decision in Turner, which adopted

a more deferential, “reasonably related” test for

determining whether prison practices impermissibly

burden inmates’ constitutional rights.

Although the prison regulations at issue in

Turner involved inmate-to-inmate correspondence

and inmate marriages, Turner is important because it

held that “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89, 107 S. Ct. at 2261; .

see Van Poyck v. Singletary, 106 F.3d 1558, 1560 (11th

Cir. 1997) (stating Turner allows “prison rules to

burden inmates’ constitutional rights when reasona-

bly related to a legitimate penological interest”).”

The Turner Court identified four factors in de-

termining the reasonableness of a prison regulation:

(1) a “‘valid, rational connection’ between the prison

“ The Supreme Court upheld the restrictions on inmate-to-

inmate correspondence, but invalidated the restrictions on

inmate marriages. Jd. at 91, 107 S. Ct. at 2262-63.

App. 21

regulation and the legitimate governmental interest”;

(2) “whether there are alternative means of exercising

the right that remain open to prison inmates”; (3) the

impact that accommodation of the asserted constitu-

tional right will have on guards, inmates, and the

allocation of prison resources; and (4) the “absence of

ready alternatives” to the regulation. Jd. at 89-90, 107

S. Ct. at 2262.

Post-Turner, this Court has accorded “wide-

ranging” and “substantial” deference to prisoner

administrators in their execution of policies and

practices that they consider necessary to preserve

internal order and discipline and to maintain institu-

tional security. See Bass v. Perrin, 170 F.3d 1312,

1319 (11th Cir. 1999); Lawson v. Singletary, 85 F.3d

502, 509-10 (11th Cir. 1996). Such deference is justi-

fied because of “the complexity of prison manage-

ment, the fact that responsibility therefor is

necessarily vested in prison officials, arid the fact that

courts are ill-equipped to deal with such problems.”

Lawson, 85 F.3d at 510. Before we apply Turner’s

factors to the mail-opening issue here, we review the

post-Turner split in other circuits about this issue.

E. Other Circuits Post-Turner

Subsequent to Turner, the Fifth Circuit reconsid-

ered Taylor and Guajardo and rejected their holdings

under Turner’s “reasonably related” test. See Brewer,

3 F.3d at 825. The plaintiff-inmates in Brewer com-

plained that their legal mail was opened outside their

App. 22

presence, despite a prison policy requiring other-

wise.” Brewer involved broad “legal mail” which the

Fifth Circuit described as “legal mail from various

courts, attorneys, and government officials.” Jd. at

818.

The Fifth Circuit acknowledged prisoners’ “con-

stitutionally protected right of access to the courts”

but concluded that “what we once recognized in

[Taylor] as being ‘compelled’ by prisoners’ constitu-

tional rights — ie., that a prisoner’s incoming legal

mail be opened and inspected only in the prisoner’s

presence — is no longer the case in light of Turner and

Thornburgh.”“ Id. at 820, 825 (citation omitted). The

Fifth Circuit stated that Taylor’s requirements of the

least restrictive means and a substantial or impor-

tant government interest “appear[ed] to have been

modified” by Turner’s “instruction that when a prison

practice impinges on inmates’ constitutional rights,

whatever those rights might be, such a practice is

valid if it is ‘reasonably related to legitimate pe-

nological interests.’” Jd. at 823-25. The Fifth Circuit

* The Texas Department of Criminal Justice had a policy

whereby “Incoming Special Correspondence from a specific

named official will be delivered to the inmate sealed and unin-

spected. Incoming Special Correspondence not from a specific

named official may be opened and inspected for contraband only.

The inspection shall be in the inmate’s presence.” Jd. at 818 n.2.

“In Thornburgh v. Abbott, the Supreme Court applied

Turner to a prison’s regulation of incoming mail in the form of

subscription publications. 490 U.S. 401, 407-19, 109 S. Ct. 1874,

1878-85 (1989).

App. 23

noted that the prisoners did not allege “that their

mail has been censored” and “they concede that such

mail was opened and inspected for the ‘legitimate

penological objective’ of prison security, i.e., to detect

contraband.” Jd. at 825. The Fifth Circuit concluded

that “the violation of the prison regulation requiring

that a prisoner be present when his incoming legal

mail is opened and inspected is not a violation of a

prisoner’s constitutional rights.” Jd. at 825.

In contrast, several other circuits post-Turner

have concluded that opening properly marked attor-

ney mail outside a prisoner’s presence infringes the

constitutional right to access to the courts. See Sallier

v. Brooks, 343 F.3d 868, 877-78 (6th Cir. 2003) (con-

cluding that no penological interest or security con-

cern justifies opening attorney mail outside prisoner’s

presence when prisoner requested otherwise); Bieregu

v. Reno, 59 F.3d 1445, 1458 (3d Cir. 1995) (disagreeing

with Fifth Circuit’s Brewer, and concluding the pattern

and practice of opening inmate’s properly marked

incoming “court mail” outside his presence fails the

Turner reasonableness standard anc violates inmate’s

rights to free speech and access to courts) (abrogated

in part on other grounds by Lewis v. Casey, 518 U.S.

343, 116 S.Ct. 2174 (1996));” see also Kaufman v.

” In Bieregu, “court mail” was described as “correspondence

between an inmate and a state or federal judge, clerk’s office, or

other courthouse address.” 59 F.3d at 1449.

** See infra notes 32-33. Bieregu’s holding that a prisoner is

not required to show actual injury in an access-to-courts claim

(Continued on following page)

App. 24

McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005) (stat-

ing, “when a prison receives a letter for an inmate

that is marked with an attorney’s name and a warn-

ing that the letter is legal mail, officials potentially

violate the inmate’s rights if they open the letter

outside of the inmate’s presence”); Davis v. Goord,

320 F.3d 346, 351-52 (2d Cir. 2003) (noting,

“{iJnterference with legal mail implicates a prison

inmate’s rights to access to the courts” but concluding

two incidents of mail interference “are insufficient to

state a claim for denial of access to the courts because

[the inmate] has not alleged that the interference

with his mail either constituted an ongoing practice

of unjustified censorship or caused him to miss court

deadlines or in any way prejudiced his legal actions”);

Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d

711, 712 (8th Cir. 1999) (concluding inmate stated

constitutional claim based on officers opening legal

mail when he was not present).”

was later overruled by Casey. See Oliver v. Fauver, 118 F.3d 175,

177-78 (3d Cir. 1997). However, the Third Circuit in Jones v.

Brown expressly reaffirmed Bieregu’s holding that a pattern and

practice of opening an inmate’s legal mail outside his presence

violates his constitutional rights. See Jones, 461 F.3d 353, 358-

59 (3d Cir. 2006), cert. denied, 127 S. Ct. 1822 (2007).

” Pre-Turner, several circuits concludec. that inmates have

constitutionally protected rights to have properly marked

attorney mail opened only in their presence. See Washington v.

James, 782 F.2d 1134, 1139-40 (2d Cir. 1986) (concluding that

allegation that prison officials repeatedly opened outgoing

attorney mail states a First Amendment claim); Jensen uv.

Klecker, 648 F.2d 1179, 1182-83 (8th Cir. 1981) (concluding that

(Continued on following page)

App. 25

The Third Circuit in Bieregu noted that although

reading legal mail would infringe the right of access

more than simply opening and inspecting it, “the only

way to ensure that mail is not read when opened, and

thus to vindicate the right to access, is to require that

it be done in the presence of the inmate to whom it is

addressed.” 59 F.3d at 1456 (citing Wolff v. McDon-

nell, 418 U.S. 589, 576-77, 94 S. Ct. 2963, 2984-85

(1974)). Although Bieregu involved court mail, the

Third Circuit emphasized that “interference with

attorney mail probably infringes the right of court

access even more than interference with court

mail... . Of all communications, attorney mail is the

most sacrosanct.” /d. The Third Circuit pointed out

that providing inmates with confidential reliable

means of communication with their attorneys about

allegation that prison officials deliberately and repeatedly

opened attorney mail outside prisoner’s presence defeated

defendants’ motion for summary judgment); Ramos v. Lamm,

639 F.2d 559, 582 (10th Cir. 1980) (opening outgoing attorney

mail outside inmate’s presence violates First Amendment);

Smith v. Robbins, 454 F.2d 696, 697 (1st Cir. 1972) (affirming

district court order that attorney mail may not be opened in

prisoner’s absence because “[i]f the prisoner is present, he can

see that the letter is not being read” and noting that otherwise,

the resulting fear that mail will be read “may chill communica-

tions between the prisoner and his counsel”); cf Smith v.

Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (concluding that

where defendants opened one piece of prisoner’s constitutionally

protected legal mail by accident, “(s]uch an isolated incident,

without any evidence of improper motive or resulting interfer-

ence with Smith’s right to counsel or to access to the courts, does

not give rise to a constitutional violation”).

App. 26

grievances “releases tension in the prisons and itself

advances the state interest in maintaining institu-

tional order and security.” Id. at 1457. The benefits of

such a “safety valve” advances, rather than frus-

trates, state interests.

The Third Circuit also concluded that opening

legal mail in an inmate’s presence “places no burden

at all on guards, prisoners, and the allocation of

prison resources: it is what the [prison] regulations

have required since 1985.” Jd. at 1458. When opening

mail in the prisoner’s presence, the prison can check

for contraband then, which satisfies the state’s secu-

rity interest. The Third Circuit, however, was “careful

to distinguish between a single, inadvertent opening

of properly marked legal mail outside an inmate’s

presence and a pattern or practice of such actions.”

Id. “The former may not infringe a prisoner’s right to

free speech, nor his right to court access absent a

showing of actual injury.” Jd.”

The Sixth Circuit also recently concluded that no

penological interest or security concern justifies

opening attorney mail outside a prisoner’s presence

when the prisoner specifically requested otherwise,

and that the practice violates the prisoner’s First

“The Third Circuit acknowledged that its conclusion .

differed from the Fifth Circuit’s Brewer decision, but that its

own conclusion “comports with the results reached by the

majority of courts of appeals to consider these precise or similar

issues.” Bieregu, 59 F.3d at 1458.

App. 27

Amendment rights.” See Sallier, 343 F.3d at 877-78.”

Although not explicitly citing Turner itself, the Sixth

Circuit articulated Turner’s reasonably related stan-

dard and cited to Muhammad v. Pitcher, 35 F.3d 1081

(6th Cir. 1994), which did use the Turner factors.

Sallier, 343 F.3d at 873, 877; see Muhammad, 35 F.3d

at 1084-86 (analyzing procedure of opening inmate’s

incoming mail from state attorney general outside of

his presence and concluding, “[aJll four of the Turner

factors indicate that the policy does not pass muster”

under the First Amendment right).

F. Turner Did Not Change Our Well-Established

Law

Applying Turner’s factors to this case, we conclude

that our well-established law ‘n Taylor and Guajardo —

that inmates have a constitutionally protected right to

have their properly marked attorney mail opened in

* The Sixth Circuit noted that “(njot all mail that a pris-

oner receives from a legal source will implicate constitutionally

protected legal mail rights,” but when it does, “we must balance

the interest of prison security against the possibility of tamper-

ing that could unjustifiably chill the prisoner’: right of access to

the courts or impair the right to be represented by counsel.”

Sallier, 343 F.3d at 874.

*” In Sallier, the prison system’s policy required that a

prisoner make a written request that his legal mail be opened

only in his presence. Jd. at 874-75. The Sixth Circuit had

previously found that this opt-in policy was sound. Id. at 874

(citing Knop v. Johnson, 977 F.2d 996, 1012 (6th Cir. 1992)). Al-

Amin made such a request.

App. 28

their presence ~ is not changed by Turner and re-

mains valid, well-established law. As to the first

Turner factor, a “valid, rationa! connection” between

the prison practice and a legitimate governmental

interest, we fully recognize that the government has a

strong interest in prison security. However, defen-

dants do not dispute that attcrneys are unlikely to

send contraband, nor have they articulated a legiti-

mate security interest in opening properly marked

attorney mail outside Al-Amin’s presence. Indeed,

defendants can readily check for contraband if attor-

ney mail is opened in the inmate’s presence, and the

DOC’s own policy prevides for opening attorney mail

in the inmate’s presence. Assuring the inmate of the

confidentiality of inmate-attorney mail by opening

~ such mail only in the inmate’s presence actually

advances the state’s interest in promoting institu-

tional order and security. See Bieregu, 59 F.3d at

1457. The first Turner factor thus favors Al-Amin.

As to the second Turner factor, Al-Amin has no

other means of exercising his access-to-courts right

where that access depends on confidentially commu-

nicating with his attorneys. Even if prison officials

vow to open but not read attorney mail, courts have

noted the inmates’ lack of trust in that vow and fear

that their attorney mail will be read. Opening attor-

ney mail only in the inmate’s presence ensures that

the inmate’s correspondence with his attorney is not

inhibited or chilled by his fear that this correspon-

dence may be read by prison officials. See, e.g., Taylor,

532 F.2d at 476 (citing Robbins, 454 F.2d at 697).

App. 29

As to the third factor, there is no showing that

opening attorney mail in an inmate’s presence bur-

dens guards, prisoners, or the allocation of prison

resources; as noted above, DOC policy already re-

quires opening attorney mail in an inmate’s presence.

While opening all prison mail in an inmate’s presence

would pose an impermissible burden, we conclude

properly marked attorney mail does not. As to the

fourth factor, opening an inmate’s attorney mail in

his presence itself is the easy alternative; it “fully

accommodates the prisoner’s rights at de minimis

cost to valid penological interests.” Turner, 482 U.S.

at 91, 107 S. Ct. at 2262. Thus, all four Turner factors

weigh in Al-Amin’s favor and Turner does not under-

mine Taylor's or 'suajardo’s holding.

Both parties cite our post-7Turner decision in

Lemon v. Dugger, 931 F.2d 1465 (11th Cir. 1991), but

Lemon was a reading-attorney-mail case.’ In con-

trast, Al-Amin claims a constitutional right to receive

attorney mail unopened or to have attorney mail

opened only in his presence, apart from his constitu-

tional right to receive unread attorney mail. Thus,

Taylor and Guajardo, binding precedent from our

“In Lemon, defendant-prison officials did not contest the

prisoner’s constitutional right not to have his mail read, but

claimed that they had probable cause to read the mail and that

this probable cause trumped Lemon’s constitutional right not to

have his mail read. Jd. at 1468. In rejecting this claim, Lemon

relied on Taylor’s holding “that it was a violation of an inmate’s

constitutional rights for the prison officials to read legal mail.”

Id. at 1467 (emphasis added).

App. 30

predecessor court, speak more directly to the mail-

opening issue. Nonetheless, Lemon’s reasoning does

support our conclusion that the Turner factors favor

Al-Amin. Although not discussing Turner, the Lemon

Court stressed that “‘[t]he basic prisoner interest is

an uninhibited communication with attorneys’” and

that “‘[p]risoners have a vital need to communicate

effectively with [their attorneys].’” Id. at 1467 (quot-

ing Taylor, 532 F.2d at 475) (third alteration in origi-

nal). The Lemen Court shared Taylor’s concern that

“the essential role of postal communication cannot be

ignored” because the fact of incarceration sharply

restricts an inmate’s means of communication with

his attorney. Jd. The Court noted that opening mail in

an inmate’s presence “insures that prisor officials

will not read the mail” and thus does not chill attor-

ney-inmate communication. Jd. (quoting Wolff, 418

U.S. at 577, 94S. Ct. at 2985).

Given this Court’s precedent in Taylor, Guajardo,

and Lemon, we conclude that: (1) a reasenable official

would have known in 2004-05 that opening properly

marked, incoming attorney mail outside the inmate's

presence is unlawful and unconstitutional; and (2)

Turner did not change our well-established law in

that regard. Al-Amin would be home free on his

access-to-courts claim but for the Supreme Court’s

actual injury decision in Casey.

App. 31

G. Actual Injury Requirement

Subsequent to Taylor, Guajardo, and Lemon, the

Supreme Court clarified that “actual injury” is a

constitutional prerequisite to an inmate’s access-to-

courts claim. See Casey, 518 U.S. 343, at 349, 116

S. Ct. 2174, 2179; Barbour v. Haley, 471 F.3d 1222,

1225 (11th Cir. 2006) (citing Casey and stating, “in

order to assert a claim arising from the denial of

meaningful access to the courts, an inmate must first

establish an actual injury”), cert. denied, 127 S. Ct.

2996 (2007);” Perrin, 170 F.3d at 1320 n.13; Wilson v.

Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998);

Bass v. Singletary, 143 F.3d 1442, 1445 (llth Cir.

1998). “[P]rison officials’ actions that allegedly violate

an inmate’s right of access to the courts must have

impeded the inmate’s pursuit of a nonfrivolous, post-

conviction claim or civil rights action.” Wilson, 163

“ The Supreme Court in Casey explained that the actual

injury requirement in access-to-courts cases “derives ultimately

from the doctrine of standing, a constitutional principle that

prevents courts of law from undertaking tasks assigned to the

political branches.” Casey, 518 U.S. at 349, 116 S. Ct. at 2179.

The Supreme Court explained that “(i]t is the role of courts to

provide relief to claimants ... who have suffered, or will immi-

nently suffer, actual harm; it is not the role of courts, but that of

the political branches, to shape the institutions of government in

such fashion as to comply with the laws and the Constitution.”

Id. The Supreme Court added that “the distinction between the

two roles would be obliterated if, to invoke intervention of the

courts, no actua) or imminent harm were needed, but merely the

status of being subject to a governmental institution that was

not organized or managed properly.” Jd. at 350, 116 S. Ct. at

2179.

App. 32

F.3d at 1290; accord Singletary, 143 F.3d at 1445

(identifying the limited types of legal claims protected

by the access-to-courts right as nonfrivolous appeals

from a conviction, habeas petitions, or civil rights

suits).””

In order to show actual injury, “a plaintiff must

provide evidence of such deterrence, such as a denial

or dismissal of a direct appeal, habeas petition, or

civil rights case that results from actions of prison

officials.” Wilson, 163 F.3d <i 1290-91; see also Perrin,

170 F.3d at 1320 n.13 (stating in an access-to-courts

claim, “plaintiffs must show ‘actual injury’ — in other

words, the plaintiffs must demonstrate that they had

a legitimate claim that they were unable to pursue

due to the prison’s restrictions”).

Here, Al-Amin has not alleged the requisite

actual injury. Al-Amin stated that his wife handled all

his cases, including a lawsuit, a habeas corpus peti-

tion (not yet filed), and the appeal of his criminal

conviction. However, Al-Amin’s testimony contains

only a conclusory allegation that the mail opening

* Other circuits also require actual injury to pursue a legal

mail access-to-courts claim as a constitutional prerequisite

under Casey. See, ey., Kaufman, 419 F.3d at 686; Simkins v.

Bruce, 406 F.3d 1239, 1243-44 (10th Cir. 2005); Oliver, 118 F.3d

at 177-78. In Bieregu, 59 F.3d at 1455, the Third Circuit had

held that a showing of actual injury was not required but in

Oliver, it concluded that the Supreme Court’s decision in Casey

“hal[d] effectively overruled Bieregu” in that regard and that

access-to-courts claims require a showing of actual injury. Oliver,

118 F.3d at 177-78.

App. 33

compromised his cases and does not identify how any

legal matters specifically were damaged. At most,

Karima’s affidavit states conclusorily that “(tlhe

violation of opening legal mail from my office over

more than a three-year period has caused harm to the

client/attorney privilege, confidentiality of legal

matters, and in satisfying deadlines.” Her affidavit

provides no specific cases or claims being pursued,

nor any deadlines missed, nor any effect on Al-Amin’s

legal claims. Because Al-Amin has not shown the

requisite actual injury, the district court erred in

denying defendants qualified immunity on Al-Amin’s

access-to-courts claim.

IV. FREE SPEECH CLAIM

A. Constitutional Violation

Al-Amin also contends that defendants’ conduct —

repeatedly opening his attorney mail outside his

presence — inhibited, chilled, and interfered with his

communication with his attorney and consequently

violated his constitutional right to free speech. After

review, we agree with the district court’s conclusions

that (1) Al-Amin’s free speech claim is distinct from

his access-to-courts claim; (2) defendants’ conduct

violated his right to free speech; and (3) he need not

show any actual injury beyond the free speech viola-

tion itself to state a constitutional claim.

The First Amendment, as incorporated by the

Fourteenth Amendment, prohibits states from

“abridging the freedom of speech.” U.S. Const. amend.

App. 34

I. Mail is one medium of free speech, and the right to

send and receive mail exists under the First Amend-

ment. See City of Cincinnati v. Discovery Network,

Inc., 507 U.S. 410, 427, 113 S. Ct. 1505, 1515-1516

(1993) (“A prohibition on the use of the mails is a

significant restriction of First Amendment rights. We

have noted that the United States may give up the

Post Office when it sees fit, but while it carries it on

the use of the mails is as much a part of free speech

as the right to use our tongues.”) (quoting Blount v.

Rizzi, 400 U.S. 410, 416, 91 S. Ct. 423, 428 (1971))

(alteration and quotation marks omitted).

Further, it is well established that a prison

inmate “retains those First Amendment rights that

are not inconsistent with his status as a prisoner or

with the legitimate penological objectives of the

sorrections system.” Pell v. Procunier, 417 U.S. 817,

822, 94 S. Ct. 2800, 2804 (1974); see Turner, 482 U.S.

at 95, 107 S. Ct. at 2265 (quoting this proposition

from Pell); Hudson v. Palmer, 468 U.S. 517, 523, 104

S. Ct. 3194, 3198 (1984) (same); Lawson, 85 F.3d at

509 (same). As explained earlier, Al-Amin’s use of the

mail to communicsts confidentially with attorneys

about his cases is not inconsistent with his prisoner

status or witn legitimate penological objectives, but

promotes the state’s interest in institutional order

and security. Indeed, given their incarceration and

often distance from their attorneys, prisoners’ use of

the mail to communicate with their attorneys about

their criminal cases may frequently be a more impor-

tant free speech right than the use of their tongues.

App. 35

Thus, we conclude that Al-Amin has a First Amend-

ment free speech right to communicate with his

attorneys by mail, separate and apart from his consti-

tutional right to access to the courts.

The closer question here is whether defendants’

conduct violated that constitutional right to free

speech. This is not a case where defendants censored

inmates’ mail or refused to deliver mail. Instead,

defendants opened Al-Amin’s attorney mail outside

his presence before delivering it to him. The issue

thus is whether defendants’ pattern and practice of

opening (but not reading) Al-Amin’s clearly marked

attorney mail outside his presence sufficiently chills,

inhibits, or interferes with Al-Amin’s ability to speak,

protest, and complain openly to his attorney so as to

infringe his right to free speech.

In answering this question, we are persuaded by

the Third Circuit’s decision in Jones v. Brown, which

concluded that a state prison’s “pattern and practice”

of opening attorney mail outside the inmate’s pres-

enee “interferes with protected communications,

strips those protected communications of their confi-

dentiality, and accordingly impinges upon the in-

mate’s right to freedom of speech.” Jones, 461 F.3d at

359." The Third Circuit in Jones reasoned that the

“ Jones examined New Jersey’s prison policy allowing it to

open incoming “legal correspondence” outside the prisoners’

presence in order to protect the safety and security of its prisons

by reducing the risk of anthrax contamination. 461 F.3d at 356.

The Third Circuit concluded that, three years after September

(Continued on following page)

App. 36

practice of opening attorney mail outside the inmate’s

presence “deprives the expression of confidentiality

and chills the inmates’ protected expression, regard-

less of the state’s good-faith protestations that it does

not, and will not, read the content of the communica-

tions.” Jd. The Third Circuit explained that “[t]his 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. (quoting Bieregu, 59 F.3d at 1456 (citing Wolff, 418

U.S. at 576-77, 94 S. Ct. at 2984-85)); see also Davis,

320 F.3d at 351 (“Interference with legal mail impli-

cates a prison inmate’s rights to access to the courts

and free speech as guaranteed by the First and

Fourteenth Amendments to the U.S. Constitution.”).

We also agree with the Third Circuit that the

actual injury requirement applies to access-to-courts

claims but not to free speech claims. See Jones, 461

F.3d at 359-60. Because the Supreme Court’s Casey

decision concerned an access-to-courts claim, the Third

Circuit determined that “nothing in the reasoning of

11 and the anthrax letters sent in October 2001, “there [wa]s no

reasonable connection” between the opening policy and the

asserted state interest, and, thus, the policy “dlid] not withstand

constitutional scrutiny” under the Turner factors. Id. at 356,

363-64.

The “legal correspondence” in Jones included correspon-

dence from courts and third parties, in addition to inmates’

attorneys. Nothing herein rules as to legal mail in general

because our case involves only attorney-client mail and our

decision is necessarily limited to attorney-client mail only.

App. 37

Casey ... suggests that a prisoner... need allege any

consequential injury stemming from [an alleged First

Amendment] violation, aside from the violation

itself.” Id. at 359. The Third Circuit explained that

while the provision of legal services and law libraries

are means to ensure reasonable access to present

constitutional claims to the courts, “protection of an

inmate’s freedom to engage in protected communica-

tions is a constitutional end in itself.” Jd. at 359-60.

In a similar vein, we have stated that “‘[njominal

damages are appropriate if a plaintiff establishes a

violation of a fundamental constitutional right, even

if he cannot prove actual injury sufficient to entitle

him to compensatory damages.” KH Outdoor, LLC uv.

City of Trussville, 465 F.3d 1256, 1260 (llth Cir.

2006) (quoting Hughes v. Lott, 350 F.3d 1157, 1162

(11th Cir. 2003)); see also Carey v. Piphus, 435 U.S.

247, 266-67, 98 S. Ct. 1042, 1053-54 (1978) (conclud-

ing that plaintiff could be compensated with nominal

damages for procedural due process violations even

absent proof of actual injury). We also have said that

“nominal damages are ... appropriate in the context

of a First Amendment violation.” KH Outdoor, 465

F.3d at 1261; see also McNamara v. Moody, 606 F.2d

621, 622, 625-26 (5th Cir. 1979) (affirming nominal

damages award to prisoner whose freedom of speech

right was violated when officials refused to mail

letter to his girlfriend). Our precedent thus recognizes

the award of nominal damages for violations of the

App. 38

fundamental constitutional right to free speech

absent any actual injury.”

Because Al-Amin has stated a free speech viola-

tion and because actual injury is not a constitutional

prerequisite to a free speech claim, the only remain-

ing question is whether Al-Amin’s free speech right to

have his attorney mail opened only in his presence

was clearly established at the time of defendants’

conduct.

B. Clearly Established Law

Defendants argue that they did not have “fair

warning” that opening mail from Karima outside

Al-Amin’s presence was a free speech violation and

that, therefore, they are entitled to qualified immu-

nity on Al-Amin’s free speech claim.” Defendants

stress that our binding precedent in Zaylor, Guajardo,

* Because our interlocutory jurisdiction extends only to

qualified immunity legal issues, we do not address defendants’

claim, made in the district court, that the Prison Litigation

Reform Act bars Al-Amin from seeking nominal and punitive

damages. See discussion of these issues in Smith v. Allen, 502

F.3d 1255 (11th Cir. 2007).

* Defendants’ argument relies in part on their contention

that Karima’s mail, although showing her law office address and

marked “privileged, legal mail,” was not attorney mail. As we

have already explained, accepting the version of the facts most

favorable to Al-Amin, by November 25, 2003, defendants knew

that Karima was Al-Amin’s attorney and that Karima’s properly

marked attorney mail should not be opened outside Al-Amin’s

presence.

App. 39

and Lemon was based on the constitutional right to

access the courts, not the right to free speech, and

thus Al-Amin’s free speech right was not clearly

established. The question becomes whether, for

qualified immunity purposes, defendants have “fair

warning” when reasonable officials know that their

precise conduct (opening an inmate’s attorney mail

outside his presence) is unlawful and a constitutional

violation, but they do not know that it violates not

only one constitutional right (the right to court ac-

cess), but also a second constitutional right (the right

to free speech).

The problem with defendants’ argument is that

the “clearly established” inquiry for qualified immu-

nity focuses on the defendant’s conduct aid whether

given a particular factual situation, a reasonable

official would know his conduct was unlawful and

unconstitutional. See Hope, 536 U.S. at 741, 122

S. Ct. at 2516; Saucier, 533 U.S. at 202, 121 S. Ct. at

2156. We have never required that, in order for an

official to know his conduct is unlawful, a reasonable

official must be able to cite by chapter and verse all of

the constitutional bases that make his conduct

unlawful. Rather, what courts have said is that a high

degree of factual similarity with conduct previously

held unlawful and unconstitutional is required to give

a reasonable official fair and clear warning (or notice)

that his particular conduct is unlawful and unconsti-

tutional. See, e.g., Hope, 536 U.S. at 740-41, 122 S. Ct.

at 2515-16; Vinyard, 311 F.3d at 1353.

App. 40

In this case, exact factual identity exists between

prior case law and defendants’ factual conduct. Spe-

cifically, our precedent, as discussed above, clearly

establishes that a prison official violates an inmate's

constitutional rights when the official opens attorney

mail outside the inmate’s presence. See Taylor, 532

F.2d at 462; Guajardo, 580 F.2d at 748.” Thus, we

conclude that defendants had fair and clear notice

that opening Al-Amin’s attorney mail outside his

presence was unlawful and violated the Constitution.

See Vinyard, 311 F.3d at 1350 (“‘{I]f the law did not

put the officer on notice that his conduct would be

clearly unlawful, summary judgment based on quali-

fied immunity is appropriate.’” (quoting Saucier, 533

U.S. at 202, 121 S. Ct. at 2156-57)). Accordingly, we

affirm the district court’s denial of qualified immu-

nity on the free speech claim.”

* In addition to our prior case law, the GSP’s own regula-

tions provide that an inmate’s incoming attorney mail should be

opened in the inmate’s presence. While the regulations them-

selves do not constitute constitutional law, they further under-

mine any claim by defendants that they were unaware of their

legal obligations in handling Al-Amin’s mail.

* In their reply brief, defendants raise two additional

arguments: (1) even if Al-Amin suffered constitutional viola-

tions, they still cannot be held liable because they did not

personally participate in the illegal conduct that gave rise to the

constitutional violations; and (2) there is insufficient evidence of

a pattern, practice, or policy of opening attorney mail to estab-

lish supervisory liability. However, defendants neglected to

make these arguments in their initial brief on appeal, and our

precedent unambiguously provides that “[ilssues that are not

clearly outlined in an appellant’s initial brief are deemed

(Continued on following page)

App. 41

V. CONCLUSION

For these reasons, we reverse the district court’s

denial of qualified immunity on Al-Amin’s access-to-

courts claim and affirm on his free speech claim.

AFFIRMED IN PART AND REVERSED IN

PART.

abandoned.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317

n.17 (11th Cir. 1999); see also United States v. Levy, 416 F.3d

1273, 1276 n.3 (11th Cir. 2005) (collecting cases and observing

this Court “declines to consider issues raised for the first time in

an appellant’s reply brief”).

App. 42

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

JAMIL AL-AMIN,

Plaintiff,

Ss. :

bg ‘ CIVIL ACTION NO.:

HUGH SMITH, Warden, * Cvy605-025

and SANCHE MARTIN-

JACKSON, individually,

Defendants.

ORDER

(Filed Aug. 23, 2006)

Plaintiff, an inmate currently incarcerated at

Georgia State Prison in Reidsville, Georgia, filed an

action pursuant to 42 U.S.C. § 1983 contesting cer-

tain conditions of his confinement. Defendants filed a

Motion for Summary Judgment, and Plaintiff filed a

Response and Motion for Summary Judgment. De-

fendants have responded. For the following reasons,

Defendants’ Motion for Summary Judgment is

GRANTED in part and DENIED in part. Pilaintiff’s

Motion for Summary Judgment is DENIED.

STATEMENT OF THE CASE

Plaintiff asserts that Defendants Jackson and

Smith repeatedly opened privileged legal mail from

his attorney outside of his presence. Plaintiff also

App. 43

asserts that Defendants restricted his visitation and

phone privileges in retaliation for his having filed

grievances and a separate civil action against prison

officials. |

Defendants contend that the mail in question

was not privileged legal mail under Standard Operat-

ing Procedure I[B04-0001 and assert that Plaintiff

suffered no actual injury resulting from opening of his

mail. Defendants also contend that Plaintiff’s retalia-

tion claim is barred by Plaintiff’s failure to exhaust

available administrative remedies. Further, Defen-

dant Jackson alleges that she has never taken any

action to restrict Plaintiff’s visitation or telephone

privileges and that she lacked any authority to do so.

Defendants aver that they are entitled to qualified

immunity. Finally, Defendants contend that some of

Plaintiff’s claims are barred because Plaintiff cannot

show that he suffered any physical injury.

STANDARD OF DETERMINATION

Summary judgment should be granted if “the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any

material fact and that the moving part[ies are] enti-

tled to judgment as a matter of law.” Fed. R. Civ. P.

56(c); Midrash Sephardi, Inc. v. Town of Surfside, 366

F.3d 1214, 1223 (11th Cir. 2004). An issue of fact is

“material” if it might affect the outcome of the case,

and an issue of fact is “genuine” when it could cause a

App. 44

rational trier of fact to find in favor of the nonmoving

party. Hickson Corp. v. Northern Crossarm Co., Inc.,

357 1256, 1259-60 (11th Cir. 2004). The court must

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail

as a matter of law.” Jd. at 1260 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 91 L. Ed. 2d 202 (1986)).

The moving parties bear the burden of establish-

ing that there is no genuine issue of material fact and

that they are entitled to judgment as a matter of law.

Williamson Oil Co., Inc. v. Philip Morris USA, 346

F.3d 1287, 1298 (llth Cir. 2003). Specifically, the

moving parties must identify the portions of the

record which establish that there are no genuine

issues of material fact. Hickson, 357 F.3d at 1260

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). When the non-

moving party would have the burden of proof at trial,

the moving parties may discharge their burden by

showing that the record lacks evidence to support the

nonmoving party’s case or that the nonmoving party

would be unable to prove his case at trial. Jd. In

determining whether a summary judgment motion

should be granted, a court must view the record and

all reasonable inferences that can be drawn from the

record in a light most favorable to the nonmoving

party. Acevado v. First Nat'l Bank, 357 F. 3d 1244,

1247 (11th Cir. 2004).

App. 45

DISCUSSION AND CITATION

TO AUTHORITY

Defendants move for summary judgment based

on four grounds. They assert that the mail in ques-

tion was not privileged legal mail and that Plaintiff

suffered no actual injury resulting from the opening

of his mail. Defendants also allege that Plaintiff’s

retaliation claim fails because Plaintiff failed to

exhaust his administrative remedies. Defendants

further contend that they are entitled to qualified

immunity. Finally, Defendants assert that some of

Plaintiff’s claims fail because Plaintiff cannot show

any physical injury. Plaintiff also moves for summary

judgment, refuting Defendants’ allegations and

incorporating all documents and factual allegations

against Defendants that he has made throughout the

course of this litigation.

I. Plaintiff’s Legal Mail Claim

Defendants assert that Plaintiff’s legal mail

claim is without merit and that they are therefore

entitled to summary judgment on that claim. Defen-

dants allege that because the plaintiff’s wife and

attorney, Karima Al-Amin, was not previously listed

with prison officials as an attorney for the plaintiff on

any matters, and because the mail in question was

allegedly personal in nature, the mail was not privi-

leged legal mail subject to special requirements

governing such mail.

App. 46

Plaintiff contends that he was never asked by

Defendants to list any attorneys of record. Plaintiff

further contends that Standard Operating Procedure

IIB04-0001 does not require such disclosure as a

prerequisite to mail being deemed privileged legal

mail. Plaintiff alleges that all communications from

his wife have been clearly marked as “legal mail” and

have been sent from her law office.

It is a violation of an inmate’s First Amendment

rights for prison officials to open privileged legal mail

outside of the inmate’s presence. Lemon v. Dugger,

931 F.2d 1465, 1467 (11th Cir. 1991). The rationale

behind this constitutional requirement was noted by

the Eleventh Circuit in Lemon, where the Court of

Appeals stated that:

The basic prisoner interest is an uninhibited

communication with attorneys. Prisoners

have a vital need to communicate effectively

with [their attorneys]. This is to insure ulti-

mately that the judicial proceedings brought

against or initiated by prisoners are con-

ducted fairly. Since the prisoner’s means of

communicating with these parties are re-

stricted sharply by the fact of incarceration,

the essential role of postal communication

cannot be ignored.

Lemon at 467, citing Taylor v. Sterrett, 532 F.2d 462

(5th Cir. 1976) at 475.

It is permissible for a state to require that legal

mail be specially marked as originating from an

attorney with the attorney’s name and address given

App. 47

if it is to be treated as privileged mail. Wolff v.

McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 41

L. Ed. 2d 935 (1974). Additionally, a state may re-

quire that an attorney identify herself and her client

to the prison officials. Id.

Here, however, the Standard Operating Proce-

dure does not require that an attorney identify her-

self and her client to the prison officials, but merely

that legal mail be specially marked as such. Standard

Operating Procedure IIJB04-0001 defines “inmate’s

attorney” as including “any attorney with whom the

inmate has had, or is attempting to establish, an

attorney client relationship ... ” and states that

“Gincoming priviieged correspondence shall be

treated as privileged only if the name and official

status of the sender appears commercially printed on

the envelope.” The evidence submitted by the Plain-

tiff creates a genuine issue of material fact regarding

whether the mail in question met the standards

required for mail to be privileged and, additionally,

whether Plaintiff was required by prison officials to

list his attorneys of record. This factual dispute is

sufficient to defeat Plaintiff’s Motion for Summary

Judgment and Defendants’ Motion for Summary

Judgment on this issue. Therefore, neither Plaintiff

nor Defendants are entitled to summary judgment on

this issue.

Defendant also assert that Plaintiff has failed to

articulate an actual injury as a result of his alleged

constitutional violations and that they are entitled to

summary judgment for that reason. The Supreme

App. 48

Court has held that a claim for the denial of access to

the court must have actually frustrated or impeded

the inmate’s efforts to pursue a nonfrivolous claim.

Lewis v. Casey, 518 U.S. 343, 350, 116 S. Ct. 2174,

2179, 1385 L. Ed. 2d 606 (1996). However, Plaintiff

asserts that the alleged improper opening of Plain-

tiff’s legal mail has caused harm to the attorney/

client privilege, the confidentiality of legal matters,

and in satisfying deadlines (Karima Al-Amin Affida-

vit, para. 8). Plaintiff has created a genuine issue of

material fact as to whether actual injury exists. This

factual dispute is sufficient to defeat Plaintiff’s

Motion for Summary Judgment and Defendants’

Motion for Summary Judgment on this issue. There-

fore, neither Plaintiff nor Defendants are entitled to

summary judgment on this claim.

Il. Failure to Exhaust

Defendants allege that Plaintiff did not exhaust

his available administrative remedies with regard to

his retaliation claim. Title 42, United States Code,

Section 1997e(a), as amended by Section 803 of the

Prison Litigation Reform Act of 1995 (“PLRA”), sets

forth the procedures a prisoner must follow to access

the courts. Section 1997e(a) provides:

No action shall be brought with respect to

prison conditions under section 1983 of this

title, cr any other Federal law by a prisoner

confined in any jail, prison, or other correc-

tional facility until such administrative

remedies as are available are exhausted.

App. 49

In Porter v. Nussie, 534 U.S. 516, 122 S. Ct. 983, 152

L. Ed. 2d 12 (2002), The United States Supreme

Court held that exhaustion of available administra-

tive remedies is mandatory. Porter, 534 U.S. at 523,

122 S. Ct. at 987. Thus, even when the prisoner is

seeking relief not provided for under the grievance

process, exhaustion is still a prerequisite to his filing

suit. Id. at 524, 122 S. Ct. at 988; Booth v. Churner,

582 U.S. 731, 7382, 121 S.Ct. 1819, 1821, 149

L. Ed. 2d 958 (2001). It is not the role of the court to

consider the adequacy or futility of the administrative

remedies afforded to the inmate. Higginbottom uv.

Carter, 223 F.3d 1259, 1261 (11th Cir. 1998)). The

court’s focus should be on what remedies are avail-

able and whether the inmate pursued these remedies

prior to filing suit. See id.

Defendants allege that the Georgia Department

of Corrections adopted a three-step grievance process

as outlined in Standard Operating Procedure IIB05-

001. The first step requires an inmate to file an

informal grievance, and these forms are available in

the prison control rooms or from a counselor or officer

on duty for those inmates in the Special Management

Unit. If dissatisfied with the Warden’s response to

the informal grievance, an inmate can file a formal

grievance. If the inmate is still dissatisfied with the

response, he can file an appeal with the Central

Office.

Plaintiff generally contends that he did exhaust

his remedies by filing grievances. Plaintiff filed an

informal grievance on February 9, 2005 concerning

App. 50

his claim that certain telephone and visitation privi-

leges were restricted in retaliation for his having filed

a civil action against officials in the past. (Doc. No.

19, Ex. 1). He filed a formal grievance on February

22, 2005. Plaintiff appealed the Warden’s response on

April 7, 2005 and received a response to his appeal

from the Central Office on April 19, 2005. However,

Plaintiff filed his Complaint in this case on March 21,

2005, before receiving a final response from the

Central Office regarding his appeal. Thus, Plaintiff

failed to exhaust his available administrative reme-

dies regarding his retaliation claim prior to filing this

suit and the retaliation claim should be dismissed

without prejudice as a result.

Ill. Qualified Immunity

Defendants contend that Plaintiff cannot show

that they had “fair warning” that the specific actions

alleged by Plaintiff were unconstitutional. Defen-

dants assert that, as a result, they are entitled to the

defense of qualified immunity.

The law governing whether a government official

is entitled to qualified immunity is well-established

in the Eleventh Circuit. Qualified immunity protects

governmental officials performing discretionary func-

tions from suit in their individual capacities, so long as

their conduct does not violate “clearly established

statutory or constitutional rights of which a reason-

able person would have known.” Gonzalez v. Reno,

325 F.3d 1228, 1232 (11th Cir. 2003) (quoting Hope v.

App. 51

Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515, 153

L. Ed. 2d 666 (2002)). A government official must first

prove that he was acting within his discretionary

authority. Jd. at 1233; Ray v. Foltz, 370 F.3d 1079,

1081-82 (11th Cir. 2004). “A government official acts

within his or her discretionary authority if objective

circumstances compel the conclusion that challenged

actions occurred in the performance of the official’s

duties and within the scope of this authority.” Hill v.

DeKalb Reg’l Youth Detention Ctr., 40 F.3d 1176,

1184 n.17 (llth Cir. 1994). Once the government

official has shown he was acting within his discre-

tionary authority, the burden shifts to the Plaintiff to

show that the Defendant is not entitled to qualified

immunity. The Supreme Court has established a two-

part test to determine the applicability of qualified

immunity. First, the court must determine whether

plaintiff’s allegations, taken as true, establish a

constitutional violation. Hope, 536 U.S. at 736, 122

S.Ct. At 2513. If, under the plaintiff’s allegations,

the defendants would have violated a constitutional

right, the next step is to ask whether the right was

one that was clearly established under the law.

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,

2156, 150 L. Ed. 2d 272 (2001); Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.

2004).

At the time of the events in question, it was

clearly established law that prisoners retain First

Amendment rights. Thomburgh v. Abbott, 490 U.S.

401, 407, 109 S. Ct. 1874, 1878, 104 L. Ed. 2d 459

App. 52

(1989) (quoting Turner v. Safley, 482 U.S. 78, 84, 109

S. Ct. 2254, 2259, 96 L. Ed. 2d 64 (1987)) “[p]rison

walls do not form a barrier separating prison inmates

from the protections of the Constitution”). It was

clearly established law that prison officials could not

open correspondence addressed to an inmate which

was legal in nature as determined from the envelope.

Lemon v. Dugger, 931 F.2d 1465, 1467-68 (11th Cir.

1991). It was also clearly established law that legal

correspondence must have been opened in the pres-

ence of the inmate. Wolff v. McDonnell, 418 U.S. 539,

576-77, 94 S. Ct. 2963, 2984-2985, 41 L. Ed. 2d 935

(1974)). Therefore, Defendants are not entitled to

summary judgment based on qualified immunity.

IV. Physical Injury Requirement

Defendants assert that Plaintiff should not be

able to recover punitive damages for his First

Amendment claims because he did not suffer a physi-

ca] injury. The Prison Litigation Reform Act provides

in part that

No Federal civil action may be brought by a

prisoner confined in a jail, prison, or other

correctional facility, for mental or emotional

injury suffered while in custody without a

prior showing of physical injury.

42 U.S.C. § 1997e(e). The purpose of this statute is “to

reduce the number of frivolous cases filed by impris-

oned plaintiffs, who have little to lose and excessive

amounts of free time with which to pursue their

App. 53

complaints.” Napier v. Preslicka, 314 F.3d 528, 531

(llth Cir. 2002) (citing Harris v. Garner, 216 F.3d

970, 976-79 (11th Cir. 2000)). “Tracking the language

of [this] statute, § 1997e(e) applies only to lawsuits

involving (1) Federal civil actions (2) brought by a

prisoner (3) for mental or emotional injury (4) suf-

fered while in custody.” Jd. at 532. A cause of action

barred by this statute “is barred only during the

imprisonment of the plaintiff; therefore, such action

should be dismissed without prejudice[.]” Jd. in order

to satisfy Section 1997e(e), a prisoner must allege

more than a de minimis physical injury. Harris v.

Garner, 190 F.3d 1279, 1286-87 (11th Cir. 1999).

The Eleventh Circuit has yet to decide whether

Section 1997e(e) precludes claims for nominal and

punitive damages along with compensatory damages.

Boxer X v. Donald, 169 Fed. Appx. 555, 558-59, 558

n.1 (11th Cir. 2006). Nominal damages are appropri-

ate in a Section 1983 case if the plaintiff establishes a

violation of a fundamental constitutional right, even

if he cannot prove actual injury sufficient to entitle

him to compensatory damages. Carey v. Piphus, 435

U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed. 2d 252

(1978). Punitive damages may be imposed under

Section 1983 with the specific purpose of deterring

or punishing violations of constitutional rights. /d.

at 257 n.11. Although the Eleventh Circuit has yet

to decide whether Section 1997e(e) precludes a

prisoner from seeking nominal or punitive damages,

the Court of Appeals has noted that the Second,

Third Seventh, Ninth and Tenth Circuits have

App. 54

concluded that Section 1997e(e) does not preclude a

prisoner from seeking nominal damages, Boxer X v.

Donald, 169 Fed. Appx. at 558-59, and that circuits

elsewhere are split on the issue of punitive damages

under Section 1997e(e). 7d. at 558 n.1.

Defendants assert that Plaintiff has suffered no

physical injury and thus his claims for punitive

damages are barred. However, the absence of a

physical injury means only that Plaintiff cannot

recover compensatory damages for any mental or

emotional injury; it merely limits the nature of Plain-

tiff’s damages. Id. at 558. Plaintiff is not precluded

from bringing claims for other types of monetary

relief without a showing of physical injury. Id. Ac-

cordingly, Defendants are not entitled to summary

judgment on this point.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion for

Summary Judgment (Doc. No. 24) is DENIED.

Defendant’s Motion for Summary Judgment (Doc. No.

17) is GRANTED in part. Plaintiff’s retaliation claim

is dismissed without prejudice. Defendant’s Motion

for Summary Judgment is DENIED in part. Plain-

tiff’s legal mail claim remains pending at this time.

App. 55

SO ORDERED this 23rd day of August, 2006.

/s/ James E. Graham

JAMES E. GRAHAM

UNITED STATES

MAGISTRATE JUDGE

App. 56

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

JAMIL AL-AMIN,

Plaintiff,

ae . CIVIL ACTION NO.:

HUGH SMITH, Warden, . CV605-025

and SANCHE MARTIN-

JACKSON, individually,

Defendants.

ORDER

(Filed Sep. 19, 2006)

Defendants have filed a Motion for Reconsidera-

tion (Doc. No. 28) of the Courts Order dated August

23, 2006 (Doc. No. 27). In that Order, the Court

granted Defendants’ Motion for Summary Judgment

with respect to Plaintiff’s retaliation claims, but

denied Defendants’ Motion for Summary Judgment

with respect to Plaintiff’s legal mail claims. Defen-

dants request that the Court reconsider its denial of

summary judgment on Plaintiff’s claim that prison

officials interfered with his privileged legal mail.

In their Motion for Reconsideration, Defendants

contend that there is no genuine issue of material fact

as to whether an actual injury exists to support

Plaintiff’s legal mail claim. Defendants assert that

Plaintiff has failed to provide adequate evidence of

actual harm sufficient to afford relief on an access to

App. 57

courts claim. Defendants cite Plaintiff’s deposition,

and contend that “Plaintiff failed on a number of

occasions to articulate any actual harm.” (Doc. No. 28,

p. 2-3). Defendants further contend that the affidavit

submitted by Plaintiff’s wife and lawyer, Karima AlI-

Amin, does not allege actual injury and that, regard-

less, her affidavit should be considered suspect in

light of Plaintiff’s conflicting testimony. (Doc. No. 28,

p. 5). Additionally, Defendants again allege that they

are entitled to qualified immunity on Plaintiff’s legal

mail claim.

The exact sources of the rights at issue in a legal

mail claim are somewhat vague. In the Eleventh

Circuit’s seminal case on the issue, however, the

Court explained that the opening of a prisoner’s

privileged legal mail is “a violation of an inmate’s

constitutional rights.” The court elaborated:

The basic prisoner interest is an uninhibited

communication with attorneys. ... [P]risoners

have a vital need to communicate effectively

with [their attorneys]. This is to insure ulti-

mately that the judicial proceedings brought

against or initiated by prisoners are con-

ducted fairly. Since the prisoner’s means of

communicating with these parties are re-

stricted sharply by the fact of incarceration,

the essential role of postal communication

cannot be ignored.

Lemon v. Dugger, 931 F.2d 1465, 1467 (11th Cir. 1991)

(quoting Taylor v. Sterrett, 532 F.2d 462, 475 (5th

1976)).

App. 58

Construing the Complaint liberally, Plaintiff has

stated a claim that the alleged interference with his

legal mail violated both his right of access to the

courts and his First Amendment right of free speech.

Though these are two distinct claims, the jurispru-

dence on these issues has become “inextricably inter-

twined,” so that a discussion must involve cases that

address both. See Brewer v. Wilkinson, 3 F.3d 816, 821

(5th Cir. 1993).

I. Access to Courts

It is clear that prisoners have a constitutionally

protected right of access to the courts. Bounds v.

Smith, 430 U.S. 817, 821, $97 S.Ct. 1491, 1494, 52

L. Ed. 2d 72 (1997). Most often this right has been

asserted to require that prisons undertake affirma-

tive obligations to assure that inmates have meaning-

ful access to the courts.’ Some courts have read the

right of an inmate not to have privileged legal mail

read outside his presence as emanating from this

right of access to courts. See, e.g., Boswell v. Mayer,

169 F.3d 384, 387 (6th Cir. 1999); Cody v. Weber, 256

F.3d 764, 767 (8th Cir. 2001). It is clear that under an

access to courts claim, a plaintiff must satisfy the

' See, e.g., Bass v. Singletary, 143 F.3d 1442 (11th Cir.

1998); Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998).

Indeed, it is these cases, as opposed to any case with facts

involving a legal mail claim, that Defendants cite and read as

requiring certain very particular showings to constitute “actual

injury.”

App. 59

requirement that there be an “actual injury” resulting

from the actions of prisons officials violating the right

of access to the courts. Lewis v. Casey, 518 U.S. 343,

349, 116 S. Ct. 2174, 2179, 185 L Li. 2d 606 (1996);

Wilson v. Blankenship, 163 F.3d 1284, 1290-1291

(11th Cir. 1998).

Accordingly, as far as Plaintiff’s legal mail con-

tentions state an access to courts claim, he must

demonstrate some impediment to his efforts to pur-

sue a nonfrivolous legal claim that is either an appeal

from a conviction, a habeas petition, or a civil rights

action. Lewis, 518 U.S. at 352-54, 116 S. Ct. at 2181-

2182. The Eleventh Circuit has required in certain

access to courts claims involving law libraries or

other means of legal assistance that the plaintiff

provide evidence of a missed deadline or a prevention

from raising a claim. See, e.g., Wilson, 163 F.3d at

1290, n. 10 (citing Lewis, 518 U.S. at 348, 116 S. Ct.

at 2178). Defendants point out that Plaintiff has not

alleged any specific deadline that has been missed as

a result of the alleged interference with his legal

mail.

However, Plaintiff does allege that his claims,

including a civil rights action and a habeas petition,

were compromised by the alleged opening of his mail.

He states that he “wouldn't know as to how many

other people were privy to the strategies and the law

that we were using at that particular time, if my mail

was being opened outside of my presence” and that

interference with his privileged mail “compromises

my case, which compromises my ability to obtain

App. 60

justice in any court.” (Pl.’s Dep., p. 29-30). First, this

Court will not overlook the fact that a prison’s prac-

tice of opening legal has a chilling effect on a pris-

oner’s «bility to correspond confidentially with his

attorney. As other courts have noted, “a prisoner who

suspects that a grievance may not remain confiden-

tial may fear retaliation by a corrections officer.”

Muhammad v. Pitcher, 35 F.3d 1081, 1083 (6th Cir.

1994). Plaintiff asserts that he had claims pending

against prison officials at the time his legal mail was

being opened outside of his presence. Accordingly,

Plaintiff’s “actual injury” may very well be that

Defendants have potentially obtained an unfair

advantage in defending themselves against his claims

of separate constitutional violations by reading his

legal mail. See Cody v. Weber, 256 F.3d 764, 767 (8th

Cir. 2001). In light of this allegation, the Court finds

that Plaintiff has indeed created a genuine issue of

material fact as to whether any actual injury exists.

As previously stated by this Court, there exists a

factual dispute sufficient to defeat Plaintiff’s Motion

for Summary Judgment on Plaintiff's access to

courts/legal mail claim.

II. First Amendment Freedom of Speech

Separate from his access to courts claim, Plaintiff

asserts a First Amendment freedom of speech claim.

There is a distinction between the standing that is

required to assert direct constitutional rights, such as

the right to free speech, and the standing that is

required to assert claims that are derivative of those

rights. Law libraries and legal assistance programs

App. 61

do not represent constitutional rights in and of them-

selves; they are merely means for ensuring ‘a rea-

sonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the

courts.’” Benjamin v. Fraser, 264 F.3d 175, 185 (2nd

Cir. 2001) (quoting Lewis, 518 U.S. at 351, 116 S. Ct

at 2174); Jones v., Brown, 2006 WL 2441412, *4 (3rd

Cir. 2006) (quoting Lewis, 518 U.S. at 351, 116 S. Ct

at 2174). in these “derivative rights” cases, Lewis

requires that an “actual injury” be shown to establish

standing. Benjamin, 264 F.3d at 185. Conversely,

where the right invoked is provided for directly by the

Constitution, a prisoner has standing simply by

showing a violation of that right. Jd.

The right of access and the right of free speech

are of course related, since the exercise of free speech

can be a means of accessing the courts. However, the

two rights are not the same, and they are not mutu-

ally exclusive. Jd. Nothing in the reasoning of Lewis

suggests that a prisoner alleging a legal mail claim in

violation of his right to free speech need allege any

consequential injury beyond the violation itself. Jones

uv. Brown, 2006 WL 2441412, *4 (3rd Cir. 2006). A

prison’s practice of interfering with privileged com-

munications strips such communications of their

confidentiality and impinges on the First Amend-

ment’s guarantee of freedom of speech. Jd.

Accordingly, Plaintiff asserts two distinct claims:

that interference with his legal mail violated his right

of access to courts, and that interference with his

legal mail violated his right to free speech. Regarding

the former, Plaintiff has created a genuine issue of

App. 62

material fact as to whether actual injury exists. As to

the latter, Plaintiff has created a genuine issue of

material fact as to whether his legal mail was inter-

fered with in violation of his mght to free speech.

Consequently, Defendants are entitled to summary

judgment on neither issue.

Ill. Qualified Immunity

Furthermore, Defendants are not entitled to

summary judgment based upon qualified immunity.

At the time of this incident, it was clearly established

that prison officials were not to open privileged legal

mail as determined from the envelope outside of the

presence of the inmate. Wolff v. McDonnell, 418 U.S.

539, 576-77, 94, S. Ct. 2963, 2984-2985, 41 L. Ed. 2d

(1974); Lemon v. Dugger, 931 F.2d 1465, 1467-68 (11th

Cir. 1991). Whether Defendants did in fact open mail

that was privileged in violation of Plaintiff’s constitu-

tional rights is an issue that should be determined by

the trier of fact.

For the foregoing reasons, Defendants’ Motion for

Reconsideration is DENIED.

SO ORDERED this 19th day of September,

2006.

/s/ James E. Graham

JAMES E. GRAHAM

UNITED STATES

MAGISTRATE JUDGE

App. 63

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUI™

No. 06-15248-BB

JAMIL AL-AMIN,

Plaintiff-Appellee,

versus

WARDEN HUGH SMITH,

ADMIN. ASST. SANCHE M. MARTIN,

Defendants-Appellants.

-——-e we we ween nenenenenneneaeew se «=

On Appeal from the United States District Court

for the Southern District of Georgia

(Filed Feb. 27, 2008)

ON _PETITION(S) FOR REHEARING AND PETI-

TION(S) FOR REHEARING EN BANC

Betore: TJOFLAT, HULL and WILSON, Circuit

Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en

App. 64

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Frank M Hull

UNITED STATES CIRCUIT JUDGE

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