Opposition Brief — Smith v. Al-Amin (No. 07-1485)

No. 07-1485

IN THE

Supreme Court of the

WARDEN HUGH SMITH and SANCHE MARTIN,

Petitioners,

v.

JAMIL AL-AMIN,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED StaTeEs Court oF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

ALLISON M. ZIEVE A. STEPHENS CLay

PUBLIC CITIZEN LITIGATION GROUP Counsel of Record

1600 20th Street NW RONALD L. RAIDER

Washington, DC 20009 C. ALLEN GARRETT JR.

(202) 588-1000 KILPATRICK STOCKTON LLP

1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309

(404) 815-6500

Counsel for Respondent

217298 g

COUNSEL PRESS

(8CO) 274-3321 + (800) 359-6859

1

QUESTIONS PRESENTED

1. Whether allegations that prison officials

repeatedly opened incoming mail from an inmate’s

attorney outside of his presence, in violation of the

prison’s own regulations and without a legitimate

penological purposé, state a claim for violation of the

inmate’s free speech rights.

2. Whether, for purposes of qualified immunity,

Eleventh Circuit law clearly established that an inmate

has aright not to have attorney mail opened outside his

presence without a legitimate penological purpose.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ................

TABLE OF CONTENTS .............-..5545

TABLE OF CITED AUTHORITIES .........

INTRODUCTION ......... Es Ay an ee

STATEMENT OF THE CASE ...............

REASONS FOR DENYING THE PETITION

ese eee eevee eeeeeeeeeneeseseeeeereeveeeeeeeeeeneneee

I. THIS CASE PRESENTS A POOR

VEHICLE FOR CONSIDERING THE

QUESTIONS PRESENTED...........

II. THE FIRST QUESTION PRESENTED

BY THE PETITION DOES NOT

WARRANT CERTIORARI REVIEW. ..

III. PETITIONERS HAVE IDENTIFIED

NO CIRCUIT SPLIT OR OTHER

BASIS FOR REVIEW OF THE

SECOND QUESTION PRESENTED. .

6 a rr

13

17

iil

TABLE OF CITED AUTHORITIES

Page

Cases:

Antonelli v. Sheahan,

Si Fed 1422 Cita Clr. 1985)... ccc ccescces 14

Brewer v. Wilkinson,

3 F.3d 816 (5th Cir. 1998) ............ 5, 15, 18, 19

Brosseau v. Haugen,

a Ge SP Db a.h iw nie dc dod caaeueses 18

Castillo v. Cook County Mail Room Dep't,

S00 Fie OO4 Cite Cir, 1986) nc ccc cc scvenss 14

Davis v. Goord,

320 F.3d 346 (2d Cir. 2008) ........ccccccees 13

Guajardo v. Estelle,

580 F.2d 748 (5th Cir. 1978) ............. 5,12, 18

Hope v. Pelzer,

ee Se, PD vo Ww enc i'vc chs newebcexs 18

Jones v. Brown, 461 F.3d 353 (8d Cir. 2006),

cert. denied, 127 S. Ct. 1822 (2007) ....... passim

Kaufman v. Karlen,

No. 07-2712 2008 WL 744140

CTE ae, WE Ts no oo beckons ucnves 14

iv

Cited Authorities

Page

Kaufman v. McCaughtry,

419 F.3d 678 (Tth Cir. 2005) .......ccccccees 14

Lemon v. Dugger,

931 F.2d 1465 (11th Cir. 1991) ............. 3, 7,9

Lewis v. Casey,

ek Be fe, a reer 4, 16,17

Lewis v. Cook County Board of Commissioners,

6 Fed. Appx. 428 (7th Cir. 2001) ............ 14

Mitchell v. Forsyth,

eee ES Sk vena voce veencsences 11

Muhammad v. Pitcher,

35 F.3d 1061 (6th Cir. 1004) .........ccceeee 9,13

Powells v. Minnehaha County Sheriff Dept.,

196 Fiod 711 (Sth Cir. 1990) ..... ce scenccss 13

Rowe v. Shake,

196 F:3d 778 (7th Cir. 1909) .........000. a

Sallier v. Brooks,

343 F.3d 868 (6th Cir. 2003) ............eee 9, 19

Shaw v. Murphy,

ee eh OE ean nee hee eseeuseewees 16

Vv

Cited Authorities

Page

Taylor v. Sterrett,

532 F.2d 462 (5th Cir. 1976) .......... 5, 12, 17, 18

Turner v. Safley,

ee Ss PE vnc vacaceedesavecaneeus passim

United States v. Blanton,

793 F.2d 1553 (11th Cir. 1986) .............. 19

Wolff v. McDonnell,

le Se NOTE bv vicuhae cis eoeweewaaes 3

Statutes:

ee eho icin oo Xs d 005 bebe 3, 4, 16

Rules and Regulations:

28 C.F.R. §540.18(a); U.S. Bureau of Prisons,

Mail Management Manual §§ 305-06

(Program Statement 5800.10) (1998) ........ 1]

, gk 5 ef err rer rn 14

Ga. Dep’t of Corrections, SOP I1B04-0001 ..... 11

Other Authorities:

Kugene Gressman, et al., Supreme Court

Practice § 4.18 (9th ed. 2007). .............. 10-11

1

INTRODUCTION

Petitioners seek review of an interlocutory decision

refusing to extend qualified immunity to prison officials’

opening of legal mail outside of an inmate’s presence. This

issue will not resolve this case, because Mr. Al-Amin also

alleges that Petitioners “read” his legal mail. Because the

district court ruled in Mr. Al-Amin’s favor on the mail

“opening” issue, it did not reach the “reading” claim. In

these circumstances, where further proceedings involving

the same facts and the same defendants will be necessary

in any event, review of this case in the present interlocutory

posture would be especially unwarranted.

Petitioners and state amici assert that various

penological interests might justify opening legal mail

outside an inmate’s presence. This claim was not raised

below, and no evidence has been presented to establish

any legitimate penological interests. To the contrary,

Petitioners’ conduct directly violated Georgia prison

regulations mandating that legal mail be opened only in

the inmate’s presence. Thus, this case is a particularly poor

vehicle for the Court to address the First Amendment

question presented.

Where the prison has not claimed or established

legitimate penological interests supporting the opening

of legal mail outside an inmate’s presence, the courts of

appeals uniformly have allowed the constitutional claim.

The one published decision cited by Petitioners as being

to the contrary involved pro se inmate litigants who

conceded the prison had a legitimate penological interest

in opening legal mail outside of their presence. Accordingly,

there is not, as Petitioners assert, a conflict in the circuits

on this issue.

2

Petitioners identify no circuit conflict on the second

question presented. Both the district court and the court

of appeals found that Petitioners had explicit notice that

the precise factual conduct at issue was prohibited.

Accordingly, the petition for writ of certiorari should

be denied.

STATEMENT OF THE CASE

Throughout his incarceration, Respondent Jamil

Al-Amin has received legal mail from Karima Al-Amin,

Esq., his lawyer and wife. In accordance with the

procedures governing legal mail at the Georgia State

Prison in Reidsville, Georgia (where Mr. Al-Amin was

housed at the time of the events giving rise to this

dispute), Ms. Al-Amin labeled her mail “Legal Mail” and

identified herself as an “Attorney at Law.” Pet. App.

2-3.

Under the prison’s regulations, legal mail may be

externally inspected for contraband, may not be read,

and may be opened only in the presence of the inmate.

Id. at 6. After numerous letters from Ms. Al-Amin

were opened outside his presence in 2002 and 2003,

Mr. Al-Amin filed an administrative grievance. /d. at 4.

During the investigation of that grievance, one of

the Petitioners acknowledged that she had read

Ms. Al-Amin’s mail, describing it as being “of a personal

nature.” /d.

Ultimately, Mr. Al-Amin’s grievance was upheld, and

Petitioners were directed to cease opening legal mail

from Ms. Al-Amin outside of his presence. 7d. at 6.

3

Petitioners, however, continued to open properly

marked legal mail from Ms. Al-Amin outside Mr. Al-

Amin’s presence, resulting in a second grievance and a

second recognition by the prison grievance appeal

officer that the prison regulations precluded such

opening. /d. at 7-8 n.9.

After the initial grievance ruling in Mr. Al-Amin’s

favor on November 25, 2008, at least thirteen additional

legal mail letters from Ms. Al-Amin were opened outside

of Mr. Al-Amin’s presence. Jd. at 7. Mr. Al-Amin then

filed this suit pro se under 42 U.S.C..§ 1983, alleging

that Petitioners continued “to open and read all of Al-

Amin’s privileged mail” outside of his presence, in

violation of the prison regulations and his “constitutional

rights.” Id. at 9. Mr. Al-Amin sought, inter alia, a

permanent injunction against Petitioners’ continuing

violations. Jd. at 9-10.

Petitioners moved for summary judgment on

multiple grounds, including qualified immunity.

Id. at 10-11. The district court denied the motion,

rejecting Petitioners’ factual challenge to Ms. Al-Amin’s

status as one of Mr. Al-Amin’s lawyers and further

finding that Mr. Al-Amin had created a genuine issue of

fact as to whether he suffered actual injury as a result

of Petitioners’ conduct. Jd. at 45-48. With respect to

qualified immunity, the district court found that an

inmate’s right to have legal mail opened only in his or

her presence was clearly established. /d. at 52 (citing

Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974), and

Lemon v. Dugger, 931 F.2d 1465, 1467-68 (11th Cir. 1991)).

4

Petitioners moved for reconsideration, challenging

the court’s finding that Mr. Al-Amin had presented

sufficient evidence of “actual injury” to withstand

summary judgment. Pet. App. 56-57. In denying that

motion, the court discussed two separate bases for an

inmate’s right to receive unopened and unread legal

mail: (1) the right of meaningful access to the courts,

and (2) the First Amendment right to freedom of speech.

Id. at 58. First addressing the right of access to courts,

the court agreed with Petitioners that “actual injury”

was required under Lewis v. Casey, 518 U.S. 348, 349

(1996). The court noted that Mr. Al-Amin had identified

two distinct actual injuries: a “chilling effect” on his

ability to correspond with and be advised by his

lawyer, and the “unfair advantage” resulting from

prison officials’ access to Mr. Al-Amin’s attorneys’

communications and work product in connection with a

separate § 1983 action. /d.

The court also found that Petitioners’ conduct

violated Mr. Al-Amin’s right of free speech, a right

“provided for directly by the Constitution” and therefore

actionable without the need for showing “any

consequential injury beyond the violation itself.”

Id. at 61 (citing Jones v. Brown, 461 F.3d 353, 359-60 (3d

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

Petitioners’ practice of “interfering with privileged

communications strips such communications of their

confidentiality and impinges on the First Amendment’s

guarantee of freedom of speech.” /d.

The court further found that Petitioners were not

entitled to qualified immunity: “At the time of this

incident, it was clearly established that prison officials

5

were not to open privileged legal mail as determined

from the envelope outside of the presence of the inmate.”

Id. at 62.

Petitioners immediately appealed the interlocutory

denial of qualified immunity to the Eleventh Circuit,

which appointed counsel for Mr. Al-Amin. Pet. 5. The

court of appeals affirmed in part (on the free speech

ciaim) and reversed in part (on the court access claim).

Pet. App. 1-41. In its decision, the court of appeals

emphasized that Mr. Al-Amin was not challenging the

prison’s regulations governing legal mail. /d. 12. Rather,

Mr. Al-Amin’s claim was that Petitioners, “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.” Jd.

Turning to Petitioners’ legal contentions, the court

of appeals addressed the claim that the binding

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

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

1978) - which prohibited prison officials from opening

marked legal mail outside of an inmate’s presence — were

“no longer good law” due to this Court’s ruling in

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

Addressing the single appellate decision finding such

a change in the law, Brewer v. Wilkinson, 3 F.3d 816

(5th Cir. 1993), the court of appeals emphasized several

key concessions by the pro se inmates in that case, most

notably that the prison had a “legitimate penological

objective” in opening their mail. 7d. at 23. The court

also noted that post-7urner decisions from the Second,

Third, Sixth, Seventh, and Eighth Circuits “have

6

concluded that opening properly marked legal attorney

mail outside a prisoner’s presence infringes the

constitutional right of access to the courts.” /d. at 23-27

& nn.25-30.

The Eleventh Circuit then analyzed the Turner

factors and agreed that inmates retained the right not

to have properly marked legal mail opened outside of

their presence. Pet. App. 27-28. As for the “valid,

rational connection” between the prison practice (here,

a practice that violated the prison’s own regulations),

and a “legitimate governmental interest,” the court

observed that Petitioners had not attempted to

articulate “a legitimate security interest in opening

properly marked legal mail outside Al-Amin’s presence.”

Id. at 28.

The second 7'urner factor — the availability of other

means to protect Mr. Al-Amin’s constitutional right -

likewise favored Mr. Al-Amin, because opening attorney

mail in the inmate’s presence “ensures that the inmate’s

correspondence with his attorney is not inhibited or

chilled by his fear that this correspondence may be read

by prison officials.” /d.

The court noted that Petitioners offered no evidence

relative to the third Turner factor, i.e., that opening mail

in the inmate’s presence unduly burdens prison

resources. Jd. at 29. To the contrary, Georgia’s own

prison policy “already requires opening attorney mail

in an inmate’s presence.” /d. Finally, the Eleventh

Circuit held that opening legal mail in the inmate’s

presence balances the inmate’s rights and the prison’s

interests and “fully accommodates the prisoner’s rights

7

as de minimis cost to valid penological interests.” /d.

(citing Turner, 482 U.S. at 91). Thus, the court concluded

that all four Turner factors weighed in Mr. Al-Amin’s

favor.'

Nevertheless, the Eleventh Circuit rejected Mr. Al-

Amin’s court access claim, on the ground that he had

not established the “actual injury” required to pursue

a claim for interference with his right of access to the

courts. /d. at 31-33. The court of appeals disagreed with

the district court’s finding that Mr. Al-Amin had

presented sufficient evidence of “actual injury” to his

other pending cases as a result of Petitioners’ violations.

See Pet. App. 47-48, 59-60.

The court of appeals unanimously agreed, however,

with the district court’s ruling that Petitioners’ conduct

constituted a violation of Mr. Al-Amin’s free speech

rights, id. at 36, and that Mr. Al-Amin need not show

further consequential injury to proceed on this claim.

Id. at 38. The court followed the Third Circuit’s

reasoning in Jones v. Brown, 461 F.3d 353, 359-60 (8d

Cir. 2006), cert. denied, 127 S. Ct. 1822 (2007), which

held that “the practice of opening attorney mail outside

of the inmate’s presence ‘deprives the expression of

confidentiality and chills the inmate’s protected

expression, regardless of the state’s good-faith

protestations that it does not, and will not, read the

1. The court of appeals buttressed its conclusion by citing

Lemon v. Dugger, 931 F.2d 1465 (11th Cir. 1991), a post-T'urner

decision which noted that opening mail in an inmate’s presence

“insures that prison officials will not read the mail’ and thus

does not chill attorney-inmate communications.” Pet. App. 30

(quoting 931 F.2d at 1367 (quoting Wolff, 418 U.S. at 577)).

8

content of the communications.” /d. at 35-36. This 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.’” /d. at

36 (quoting Jones, 461 F.3d at 359). Thus, Mr. Al-Amin

could pursue a claim for violation of the “fundamental

constitutional right” of free speech without establishing

further consequential injury, because “protection of an

inmate’s freedom to engage in protected communication

is a constitutional end in itself.” Jd. at 37 (quoting Jones,

461 F.3d at 359-60).

The court of appeals rejected Petitioners’ argument

that the prohibition on their conduct was not “clearly

established.” Pet. App. 38-40. The court found the proper

inq” iry to be whether the conduct at issue shares a “high

degree of factual similarity with conduct previously held

unlawful and unconstitutional.” 7d. As “exact factual

identity exists between prior case law and defendants’

factual conduct,” Petitioners had “fair and clear notice

that opening Al-Amin’s attorney mail outside his

presence was unlawful and violated the Constitution.”

Id. at 40. Accordingly, the court remanded for further

proceedings on the free speech claim.

9

REASONS FOR DENYING THE PETITION

I. THIS CASE PRESENTS A POOR VEHICLE FOR

CONSIDERING THE QUESTIONS PRESENTED.

A. An inmate’s right not to have legal mail opened

and read outside his presence has long been clearly

established. See Sallier v. Brooks, 3438 F.3d 868, 873-74,

877, 879 (6th Cir. 2003) (citing Muhammad v. Pitcher,

35 F-3d 1081 (6th Cir. 1994)); Lemon v. Dugger, 931 F.2d

1465, 1467 (11th Cir. 1991). Petitioners “do not contend

that they are entitled to read Al-Amin’s attorney mail.

Nor do [they] deny that the law is well established that

Al-Amin has a constitutional right that precludes them

from reading Al-Amin’s attorney mail.” Pet. App. 10 n.13.

Petitioners’ assertion that this case involves

“opening, but not reading, of legal mail outside the

presence of an inmate” (Pet. 2) is not an accurate

description of the record and proceedings below. Mr. Al-

Amin’s Complaint alleges repeatedly that his attorney

mail was opened and read outside his presence.’ In

rejecting Petitioners’ summary judgment motion, the

2. See Compl. (R1-1) 19 4, 5, 9, 10, 14, 15, 16, 17, 19, 21, 22;

Pet. App. 10 n.13. Mr. Al-Amin’s deposition testimony likewise

described the factual bases for his claim that prison officials

were “opening and reading” his legal mail, which he asserted

was retaliatory. See, e.g., R2-19-Ex. F, at 15. In denying

Petitioner’s motion for reconsideration, the district court

referred to Petitioners as having “potentially obtained an unfair

advantage in defending themselves against his claims of

separate constitutional violations by reading his legal mail.”

Pet. App. 60.

10

district court found the “opening” of the legal mail

outside Mr. Al-Amin’s presence sufficient to establish a

constitutional violation, without having to determine

whether Petitioners read the mail. Pet. App. 46-48, 52,

60-62.

Having prevailed before the district court, Mr. Al-

Amin had no basis to appeal the trial court’s failure to

reach the reading issue. Thus, there is no basis for

Petitioners’ assertion that Mr. Al-Amin’s reading claim

was “abandoned on appeal.” Pet. 4 n,2.*

Before the court of appeals, Petitioners challenged

only the “opening” ruling and the denial of qualified

immunity for that claim. /d. The Eleventh Circuit and

the parties addressed the purely legal issue raised by

the qualified immunity challenge and focused their

arguments and decision on (a) the constitutional grounds

for the right of an inmate to receive unopened jegal mail

and (b) whether this right was so clearly established the

petitioners could not avoid liability under a qualified

immunity defense.

No matter the answers to those questions,

resolution of the “opening and reading” claim will

require district court litigation over the same facts and

against the same defendants involved in the

interlocutory ruling at issue here. See generally Eugene

3. There likewise is no basis for Petitioners’ assertion that

“the parties agreed that the sole issue for appeal was the opening

of Al-Amin’s legal mail.” Jd. at 5. No such “agreement” was

pronosed by Petitioners or entered by the parties at any time

du*ing the proceedings below, nor was such an agreement

acknowledged or relied upon by the court of appeals.

11

Gressman, et al., Supreme Court Practice § 4.18 (9th

ed. 2007) (noting that, ordinarily, certiorari should not

be granted to review decisions on appeal from an

interlocutory order). In these circumstances — where the

action will proceed without regard to any ruling by this

Court concerning the more limited “opening mail” claim

— this consideration has special force, because it serves

little purpose to determine either the merits or the

qualified immunity issue with respect to only one aspect

of the claims at issue when the remainder will be subject

to further proceedings in any event. Cf Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985) (qualified immunity is

“an entitlement not to stand trial or face the other

burdens of litigation”).

B. The Petition briefly notes, and the amicus brief

asserts in detail, security risks allegedly presented by

requiring legal mail to be opened in the presence of an

inmate. Pet. 14-16; Amici Br. 1-3, 4-9, 16-18. In this case,

however, there is no evidence of such security concerns

or other governmental interests. In fact, it is undisputed

that Petitioners’ actions violated the applicable prison

regulations, which mandate that properly marked legal

mail be opened only in the presence of the inmate. See

Ga. Dep’t of Corrections, SOP IIB04-0001 (quoted in

Pet. App. 3-4). Given that Georgia’s own regulations

accept that legal mail must be opened in the inmate’s

4, The Federal Bureau of Prisons has a similar regulation.

See 28 C.F-R. § 540.18(a); U.S. Bureau of Prisons, Mail Management

Manual §§ 305-06 (Program Statement 5800.10) (1998), available

at www.bop.gov/DataSource/execute/dsPolicyLoe (“Staff shall

open inmate special riail [including legal mail] in the inmate’s

presence.”); States’ Amicus Br. 14 (“Such policies, like Georgia’s in

this case, are now widespread.”).

12

presence, and given that the state amici rest their

arguments on security interests not advanced by

Georgia, this case is a poor vehicle for weighing prison

security interests against an inmate’s free speech rights.

Moreover, Georgia’s regulations accord with binding

precedent disapproving the conduct at issue here. See

Guajardo, 580 F.2d 748; Taylor, 582 F.2d 462. The

Petition identifies no security breach resulting from

these precedents during the many years in which they

have governed the benavior of prison officials in the

Eleventh Circuit. Likewise, post-Turner appellate

decisions in other circuits over the past 15 years state

the same holding as the decision below, see infra at 13-

14, and Petitioners offer no evidence to suggest that

these decisions have led to any interference with the

operation of prisons in those jurisdictions.

The States’ amicus brief (at 4-8) argues that there

may be legitimate reasons to open mail, including legal

mail, outside the presence of the inmate. The decision

below does not preclude prison systems from

promulgating regulations attempting to authorize such

conduct in the context of a specific “penological

interest.” No such regulations, however, are at issue

here. Likewise, the States’ concern (Amici Br. 8) about

what types of mail, other than attorney-client mail, must

be opened in the inmate’s presence is not presented

here.

Indeed, the States’ amicus brief indicates that

Pennsylvania has enacted a more restrictive legal mail

regulation, with district courts reaching different

decisions as to its constitutionality. Amici Br. 6-7 & n.3.

13

These decisions currently are on appeal to the Third

Circuit. See id. In such a case, the evidence supporting

the government’s security assertions would have been

subject to lower court factual review before they came

to this Court. In this case, in contrast, there is no

evidentiary record whatsoever on which the Court could

determine whether penological interests ever justify

opening legal mail outside the inmate’s presence. Thus,

in the event the Court wishes to review the First

Amendment question raised here, the Third Circuit’s

forthcoming decision would provide a far superior

vehicle than the present case.

II. THE FIRST QUESTION PRESENTED BY THE

PETITION DOES NOT WARRANT CERTIORARI

REVIEW.

A. The Petition acknowledges that the Eleventh

Circuit joined the Second, Third, and Sixth Circuits in

holding that inmates have a First Amendment free

speech right to communicate with their attorneys by

mail and that opening attorney mail outside the inmates’

presence infringes that right. See Jones v. Brown, 461

F:3d 358, 359 (8d Cir. 2006), cert. denied, 127 S. Ct. 1822

(2007); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003);

Muhammad v. Pitcher, 35 F:3d 1081 (6th Cir. 1994). As

noted by the court of appeals, the Eighth Circuit also

recognizes a constitutional claim based on the opening

of inmate legal mail outside of his presence. Pet. App.

24 (citing Powells v. Minnehaha County Sheriff Dept.,

198 F3d 711, 712 (8th Cir. 1999)).

As further noted by the court below, the Seventh

Circuit agrees with these circuits. Pet. App. 23-24 (citing

14

Kaufman v. McCaughtry, 419 F-3d 678, 686 (7th Cir.

2005) (“Inmates have a First Amendment right both to

send and receive mail,” and “when a prison receives a

letter for an inmate that is marked with an attorney’s

name and a warning that the letter is legal mail, officials

potentially violate the inmate’s rights if they open the

letter outside of the inmate’s presence.”)); see also

Antonelli v. Sheahan, 81 F.3d 1422, 1482 (7th Cir. 1995)

(allegations that legal mail was opened, that mail was

delayed, and that mail was stolen stated First

Amendment claim); Castillo v. Cook County Mail Room

Dep’t, 990 F.2d 304, 305-06 (7th Cir. 1993); cf Rowe v.

Shake, 196 F.3d 778, 782 (7th Cir. 1999) (distinguishing

case involving opening of non-legal mail from Antonelli

and Castillo, which “held that prisoners had stated a

cause of action. under the First Amendment”).

Arguing that Seventh Circuit law does not recognize

a First Amendment claim, Petitioners cite Lewrs v. Cook

County Board of Commissioners, 6 Fed. Appx. 428 (7th

Cir. 2001). That unpublished decision relied on Rowe,

which addressed non-iegal mail, to hold that the

plaintiff’s allegation that his legal mail was opened

outside his presence was insufficient, without more, to

state a First Amendment claim. Unlike Kaufman v.

McCaughtry, Antonelli, and Castillo, the unpublished

decision in Lewis v. Cook County has no precedential

value in the Seventh Circuit. See 7th Cir. R. 32.1.°

5. The States’ amicus brief cites an additional unpublished

opinion, Kaufman v. Karlen, No. 07-2712, 2008 WL 744140 (7th

Cir. Mar. 20, 2008). There, in a one-paragrapi discussion, the

court affirmed summary judgmient against a pro se inmate,

(Cont'd)

15

Petitioners principally rely on Brewer v. Wilkinson, 3

F'3d 816 (5th Cir. 1993), where the Fifth Circuit held that

opening incoming legal mail outside the presence of

inmates did not violate their First Amendment rights.

There, however, the two pro se inmate plaintiffs “concede[d]}

that such mail was opened and inspected for [a] ‘legitimate

penological objective.” Jd. at 825. The significance of this

concession is snown by the court’s holding with regard to

inmate Brewer’s outgoing mail claim. Finding that Brewer

had asserted a clearly established constitutional violation

based on the handling of his outgoing mail, the Fifth Circuit

stated: “Appellant Brewer has not conceded that some

legitimate penological interest justified the alleged removal

of legal material.” /d. at 826 (internal punctuation omitted).

The Fifth Circuit has not considered an incoming legal

mail claim in a case in which the plaintiffs did not concede

mail was opened to further a legitimate penological interest.

Here, Mr. Al-Amin expressly disputes that Petitioners

acted in furtherance of a legitimate penological interest

when opening his attorney mail outside his presence and

in violation of the applicable prison regulations. The

decision below expressly held that “all four Turner factors

weigh in [his] favor” on this point. Pet. App. 29.

(Cont'd)

where the inmate offered no evidence that his legal mail had

been opened intentionally and no argument that opening his

legal mail had interfered with his right to counsel or access to

courts. /d. at *4. As the States acknowledge (at 12), the opinion

“did not explicitly consider whether opening the inmate’s

incoming legal mail outside his presence could amount to a

separate free speech violation.”

16

B. Petitioners briefly argue that the decision below

is inconsistent with Shaw v. Murphy, 532 U.S. 223

(2001), and Lewis v. Casey, 518 U.S. 343 (1996).

Petitioners are incorrect. The question in Shaw was

whether inmates possess a special First Amendment

right to provide legal assistance to fellow inmates,

532 U.S. at 227, 232, and the Court held that regulations

about inmate-to-inmate communication need not take

into account the content of the communication. That

case did not address incoming attorney mail and is

inapposite here.

In Casey, this Court held that an inmate asserting a

§ 1983 claim based on denial of the constitutional right

of access-to-courts must show a consequential injury to

proceed with the claim. 518 U.S. at 349. In this case, the

court of appeals has applied that holding, rejecting

Mr. Al-Amin’s access-to-courts claim based on Casey.

See Pet. App. 31, 33.

The Eleventh Circuit did not extend Casey to free

speech claims, and no federal court of appeals appears

to have done so. The Eleventh Circuit followed the

Third Circuit’s holding that a state prison’s opening of

attorney mail outside the inmate’s presence “interferes

with protected communications, strips those

communications of their confidentiality, and accordingly

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

Pet. App. 35 (quoting Jones v. Brown, 461 F.3d at 359).

This violation of a “fundamental constitutional right” is

actionable without further consequential injury, because

“‘protection of an inmate’s freedom to engage in

protected communications is a constitutional end in

itself.”” Jd. at 37 (quoting Jones, 461 F.3d at 359-60); see

17

also Taylor v. Sterrett, 5382 F.2d 462, 476 (5th Cir. 1976)

(discussing inhibitory effect on attorney-client

communications of opening legal mail outside inmate’s

presence). This is especially so where, as here, the

inmate sought injunctive relief against further violations

as well as nominal damages. Pet. App. 9-10, 37-38.

lil. PETITIONERS HAVE IDENTIFIED NO

CIRCUIT SPLIT OR OTHER BASIS FOR

REVIEW OF THE SECOND QUESTION

PRESENTED.

Petitioners identify no circuit split with regard to

the second question concerning the Eleventh Circuit’s

qualified immunity ruling. Instead, Petitioners argue

that this Court’s decision in Casey undermines the

holding that it was “clearly established” that opening

legal mail outside the presence of the inmate was

unconstitutional. Casey, however, does not question (or

even address) an inmate’s right to have his legal mail

opened only in his presence. Rather, rejecting court-

ordered changes to provide better library access and

legal assistance to inmates throughout Arizona, Casey

clarifies that in access-to-courts cases, inmate plaintiffs

must show consequential injury to satisfy the

constitutional prerequisite of standing. See Casey, 518

U.S. at 349 & n.1, 351, 353 n.4, 356, 357, 358 (discussing

standing and constitutional prerequisite of actual

injury). This does not mean that a court-access violation

did not occur, only that a prisoner cannot challenge the

violation absent a derivative injury to his ability to

pursue separate legal matters. Further, Casey did not

address a direct violation of the fundamental

constitutional right of free speech, which is actionable

without the need to show further consequentiai injury.

18

On the qualified immunity issue presented here,

Casey has no bearing on Petitioners’ “notice” that their

specific “conduct” violated the Constitution. “[Q]ualified

immunity operates ‘to ensure that before they are

subjected to suit, officers are on notice their conduct is

unlawful.”” Hope v. Pelzer, 5386 U.S. 730, 739 (2002)

(internal quotation marks omitted); see also Brosseau

v. Haugen, 543 U.S. 194, 198 (2004) (qualified immunity

inquiry looks to whether the law “clearly establish{ed]

that the officer’s conduct would violate the

Constitution”), As the decision below explained,

Petitioners had “fair warning” that “their precise

conduct (opening an inmate’s attorney mail outside his

presence) is unlawful and a constitutional violation” at

the time they opened Mr. Al-Amin’s legal mail. Pet. App.

39, 40 (citing Gwajardo, 580 F.2d at 748, and Taylor, 532

F.2d at 462). Petitioners’ subjective understanding of

the constitutional basis for Al-Amin’s clearly established

right not to have his legal mail opened outside his

presence is not pertinent to the inquiry where

Petitioners indisputably were “on notice their conduct

[was] unlawful.” See Hope, 536 U.S. at 747 (holding

qualified immunity analysis is an “objective” test).

Petitioners cite no split among the circuits on this

question. Circling back to the Fifth Circuit decision in

Brewer, however, Petitioners contend that prison

officials in the Eleventh Circuit would not have known

whether opening legal mail outside the inmate’s

presence was a constitutional violation because the

precedent established by Taylor and Guajardo (which

applied in both the Fifth and Eleventh Circuits) was

“repudiated” by the Fifth Circuit panel in Brewer. First,

petitioners had no reason to rely on post-1981 Fifth

19

Circuit case law to determine the law of the Eleventh

Circuit, because —- regardless of subsequent development

in Fifth Circuit law — the earlier precedents remain the

law of the Eleventh Circuit unless and until the Eleventh

Circuit were to overrule them. United States v. Blanton,

793 F.2d 1553, 1559 n.6 (11th Cir. 1986) (“The current

Fifth Circuit has overruled both Brooks and Nicoll... .

When this Circuit was created, we adopted the case law

of the former Fifth Circuit as it existed on the day of

the split. ... We are not bound by the subsequent

development of the law in the new Fifth Circuit.

Accordingly, Brooks and Nicoll are still good law in the

Eleventh Circuit.”) (citation omitted).

Second, Petitioners put more weight on Brewer than

that decision can bear. Brewer held that prison officials

may open inmates’ legal mail outside their presence

when justified by a concededly “legitimate penological

objective” under T'urner’s four-part test. Thus, Brewer

gave petitioners no reason to think that they could open

Mr. Al-Amin’s mail outside his presence when doing so

was not reasonably related to a legitimate penological

purpose, but instead was done, for example, to retaliate,

as is alleged here. At the same time, the case law of every

other circuit to address the issue gave notice that an

inmate has a right to be present when his legal mail is

opened. See cases cited supra at 13-14.

In any event, the narrow question whether pre-1981

case law remained good law in the Eleventh Circuit or

whether that case law was undermined to any degree

by a post-1981 Fifth Circuit decision case law does not

warrant Supreme Court review. There is no conflict

among the circuits on that question.

20

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ALLISON M. ZIEVE A. STEPHENS CLAY

PUBLIC CITIZEN Counsel of Record

LITIGATION GROUP RonaLD L, RAIDER

1600 20th Street NW C. ALLEN GARRETT JR.

Washington, DC 20009 KILPATRICK STOCKTON LLP

(202) 588-1000 1100 Peachtree Street

Suite 2800

Atlanta, Georgia 30309

(404) 815-6500

Counsel for Respondent