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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1522%3A2. Public record. Not legal advice.