                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-1995

Bieregu v Reno
Precedential or Non-Precedential:

Docket 94-5719




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Recommended Citation
"Bieregu v Reno" (1995). 1995 Decisions. Paper 184.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/184


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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT



                      No. 94-5719



                    POLYNS BIEREGU,
                              Appellant,
                           v.

    JANET RENO; L. YEARBY; G. BERMAN, All Employees
                 of Mail Room Staffs.



     Appeal from the United States District Court
            for the District of New Jersey
               (D.C. Civil No. 94-2775)



      Submitted Under Third Circuit LAR 34.1(a)
                     May 2, 1995

BEFORE:   MANSMANN, SCIRICA, and SAROKIN, Circuit Judges

                 (Filed July 11, 1995)



                  OPINION OF THE COURT




                              Polyns Bieregu, #15267-050
                              HCR-Unit
                              Fairton FCI
                              P.O. Box 420
                              Fairton, NJ 08320

                              Appellant pro se

                              Faith S. Hochberg
                              United States Attorney
                              Paul A. Blaine
                                            Assistant     United    States
                                            Attorney
                                            Mitchell H. Cohen Courthouse
                                            4th & Cooper Streets
                                            P.O. Box 1427
                                            Camden, NJ 08101

                                            Attorneys for appellees


SAROKIN, Circuit Judge:


     A    prisoner    brought   this    action      pro    se    against   prison

officials, alleging that by repeatedly opening properly marked

incoming legal mail outside of his presence, those officials had

violated his constitutional rights.1                Holding that defendants

enjoyed   qualified    immunity   because     the    law    in   this   area   was

unsettled in our circuit, the district court granted summary

judgment in favor of the officials.          Plaintiff appeals.



                                       I.

     The district court had jurisdiction pursuant to 28 U.S.C.

§1331.    Plaintiff filed a timely notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. §1291.

    1Plaintiff also named Attorney General Janet Reno as a
defendant and alleged two state law negligence claims against all
defendants. On appeal, he mentions the dismissal of neither the
state law claims nor the federal claims as to Attorney General
Reno, and hence we need not reach these issues. We note in any
event that (a) the district court held that tort claims against
federal employees may arise only under the Federal Tort Claims
Act, 28 U.S.C. §1346; and (b) to be liable for a constitutional
violation a defendant must have some causal connection to the
wrongdoing.   Mark v. Borough of Hatboro, ___ F.3d ___, 1995 WL
138433, at *18 and n.13 (3d Cir. 1995); Rizzo v. Goode, 423 U.S.
362, 377 (1976).    Plaintiff has offered no evidence that the
Attorney General in any way caused, consented to, or tacitly
approved the conduct of the prison officials herein.
         Plaintiff   Polyns     Bieregu      is    incarcerated    at    the   federal

prison in Fairton, New Jersey.                     He alleges that on numerous

occasions and outside his presence, prison mailroom employees

opened and read mail addressed to him from federal judges, in

violation of the Constitution, federal regulations, and internal

Bureau of Prisons ("BOP") guidelines.

         The federal regulatory framework for handling prisoner mail

is straightforward.           The regulations distinguish between incoming

"general mail," which the Warden must open and inspect and may

read, and incoming "special mail," which the Warden may open

"only in the presence of the inmate for inspection for physical

contraband and the qualification of any enclosures as special

mail."      28 C.F.R. §§540.14(a), 540.18(a).2             Special mail includes

incoming mail from federal and state courts.                       §540.2(c).       In

order to receive the special handling, incoming special mail must

be marked "Special Mail - Open only in the presence of the

inmate"     and    have   a    clearly       identified    sender.       §§540.2(c),

540.18(a).        According to a BOP Policy Statement, however, mail

"from the chambers of a federal judge . . . should be given

special     handling,"        even    when    it   lacks   the    precise      marking.

Federal Bureau of Prisons, Program Statement No. 5265.08 (October

1,   1985),       §13(a).            For   convenience,     we    will      refer   to

correspondence between an inmate and attorney as "attorney mail"

and to correspondence between an inmate and a state or federal


     2
     Unless otherwise noted, all subsequent references to federal
regulations are to 28 C.F.R.
judge, clerk's office, or other courthouse address as "court

mail."      We   use     the     phrase    "legal     mail"    as    a     general      term

including both attorney and court mail.

     Plaintiff       does       not   attack   the     general      BOP     scheme      for

handling mail, nor the specific authority of BOP employees to

open incoming legal mail in his presence.                        Rather, plaintiff

contends    that    in    repeatedly        opening    court     mail      outside      his

presence,     the      mailroom         employees     violated       his       rights     to

"confidential and uncensored commications" [sic] and to "access

to the court" under the First, Fourth, Sixth, and Fourteenth

Amendments.      As approved in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff sues

directly under the Constitution.

     In    response      to     defendants'    motion    for     summary        judgment,

plaintiff supplied evidence that five pieces of mail from federal

judges were opened outside his presence within a three month

period.     The mail concerned civil proceedings to which plaintiff

was a party.       Plaintiff alleges further that on another occasion,

the mailroom employees opened and damaged a scheduling order in a

civil forfeiture proceeding.                Bieregu claims that because the

order was damaged, he failed to file a timely brief and his

appeal was dismissed.

     An internal review by the prison determined that on at least

three of the five alleged occasions, mailroom employees did open

plaintiff's properly marked legal mail outside his presence.                             The

employees    claim       they     did    not   read    the    mail       and    submitted

affidavits denying they had opened it intentionally.
       The     district      court       concluded       "we   cannot      say     that    a

reasonable         trier   of     fact    would    be    compelled      to     find     that

defendants' actions were the result of mere negligence."                           Bieregu

v. Reno, No. 94-2775, slip op. (D.N.J. Nov. 4, 1994), at 5.                                It

went    on    to    conclude      that    "a    policy    or    practice     of    opening

properly      identified        legal    mail     outside      the   presence      of     the

inmate" is a constitutional violation.                    Id. at 9.      Nevertheless,

the court determined that because the law in this circuit is not

clearly established as to whether such conduct rises to the level

of a constitutional violation, the officials were entitled to

qualified immunity.

       Our review of a district court's grant of summary judgment

is plenary.         In re City of Philadelphia Litigation, ___ F.3d ___,

1995 WL 88161, *15 (3d Cir. 1995).                 We consider whether there are

genuine issues as to material facts and whether defendants are

entitled to judgment as a matter of law.                             Id.; Fed.R.Civ.P.

56(c).       See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.

1987).       In so determining, we will resolve all reasonable doubts

and draw all reasonable inferences in favor of the nonmoving

party.       Meyer v. Riegel Products Corp., 720 F.2d 303, 307, n.2
(3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984).



                                            II.

       By definition a sentence of imprisonment involves a loss of

one's    liberty,      and   by    necessity      a     substantial     loss      of   one's

privacy.       Yet confinement does not result in the forfeiture of
all constitutional rights.            Indeed, the closing of the prison

gates upon an inmate is punishment enough in most instances, and

any attempt to isolate inmates completely from the outside world

might not only violate their constitutional rights, but would

disserve the interests of a society hoping to release prisoners

to   become    law-abiding     citizens.    Thus     the      Supreme   Court has

reminded us that "[p]rison walls do not form a barrier separating

prison inmates from the protections of the Constitution."                  Turner

v. Safley, 482 U.S. 78, 84 (1987).              See also Wolff v. McDonnell,

418 U.S. 539, 555-56 (1974) ("There is no iron curtain drawn

between the Constitution and the prisons of this country").                     Nor

do   those    walls    "bar   free   citizens    from    exercising     their   own

constitutional rights by reaching out to those on the 'inside.'"

Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).

      Accordingly, the Supreme Court has recognized that persons

convicted of serious crimes and confined to penal institutions

retain the right to petition the government for the redress of

grievances, Johnson v. Avery, 393 U.S. 483 (1969); the right to

be free from racial segregation, Lee v. Washington, 390 U.S. 333

(1968); the right to due process, Wolff, supra; the right of free
speech, Abbott, 490 U.S. at 410, n.9; the right of meaningful

access to the courts, Bounds v. Smith, 430 U.S. 817, 828 (1977);

and the right to exercise substantial religious freedom, Cruz v.

Beto, 405 U.S. 319 (1972); O'Lone v. Estate of Shabazz, 482 U.S.

342, 348 (1987).

      The Court has also recognized, however, that the rights of

prisoners      "must     be    exercised    with        due    regard    for    the
'inordinately    difficult    undertaking'       that   is   modern   prison

administration."      Abbott, 490 U.S. at 407 (quoting Turner, 482

U.S. at 85).    Prison officials must weigh the need for internal

order and security against the rights of prisoners, as well as

the constitutional rights afforded "those on the 'outside' who

seek to enter that environment, in person or through the written

word."   Abbott, 490 U.S. at 407.

     Courts have been called upon to review the balance struck by

prison officials between the penal institution's need to maintain

security within its walls and the rights of prisoners and non-

prisoners.     As former Chief Judge Higginbotham has written for

our court, "'courts have learned from repeated investigation and

bitter experience that judicial intervention is indispensable if

constitutional dictates--not to mention considerations of basic

humanity--are    to   be   observed   in   the   prisons.'"    Peterkin   v.

Jeffes, 855 F.2d 1021, 1033 (3d Cir. 1988) (quoting Rhodes v.

Chapman, 452 U.S. 337, 354 (1981) (Brennan, J. concurring)).

     Against this background we turn to the conduct of defendants

regarding plaintiff's incoming court mail.



                                  III.

     The district court granted summary judgment on the grounds

that defendants enjoyed qualified immunity, but before reaching

this issue we must first determine whether plaintiff has alleged

a constitutional violation.      In re City of Philadelphia, ___ F.3d
at ___, 1995 WL 88161, at *15; Siegert v. Gilley, 500 U.S. 226,
231 (1991).     This analysis involves two steps: determining (1)
whether any of plaintiff's constitutional rights are infringed by

the     conduct    alleged      herein;      and     if    so,     (2)    whether        that

infringement rises to the level of a constitutional violation,

given    the    specialized        standard    of     review      applied       to    prison

regulations and practices.

      A number of courts of appeals have determined that opening

properly       marked     incoming     attorney       or    court       mail    outside     a

prisoner's        presence,     or     reading      such        mail,    infringes        the

Constitution.           Though finding a constitutional violation, the

Seventh, Eighth, and Eleventh Circuits identified no right in

particular.        See Castillo v. Cook County Mail Room Department,

990 F.2d 304, 307 (7th Cir. 1993) (per curiam) (allegation that

prison    officials       opened     three    pieces       of    incoming      court     mail

outside        inmate's      presence        states        "colorable          claim"     of

constitutional violation); Lemon v. Dugger, 931 F.2d 1465, 1468

(11th     Cir.      1991)      (prison        official          violated        prisoner's

"constitutional right not to have his mail read" where one piece

of incoming attorney mail opened and read in inmate's presence);

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

(allegations        that      prison     officials         had      deliberately          and

repeatedly opened incoming and outgoing attorney mail outside

prisoner's presence sufficient to defeat officials' motion for

summary judgment).          The Sixth and Tenth Circuits looked to the

First Amendment.           See Lavado v. Keohane, 992 F.2d 601, 609-10
(6th Cir. 1993) ("opening/reading" incoming court mail outside

prisoner's presence in arbitrary or capricious fashion violates

First Amendment); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir.
1980) (opening outgoing court and attorney mail outside presence

of inmate violates the First Amendment), cert. denied, 450 U.S.

1041   (1981).       The   Second      Circuit   also    relied    on    the   First

Amendment,    but    on    the    Petition     Clause    in    particular.      See

Washington    v.     James,      782    F.2d   1134,    1139    (2d     Cir.   1986)

(allegation      that   prison     officials     repeatedly     opened     outgoing

attorney mail states claim for violation of rights to petition

and to correspond with legal counsel).                 The Fifth Circuit relied

on a constitutional right of access to the courts, arising under

the Due Process Clause.            See Taylor v. Sterrett, 532 F.2d 462,

475 (5th Cir. 1976) (prisoner's right of access "requir[es] that

incoming prisoner mail from courts . . . be opened only in the

presence of the inmate").          Taylor, however, may no longer be good

law in the Fifth Circuit.              See Brewer v. Wilkinson, 3 F.3d 816,

825 (5th Cir. 1993) (opening incoming attorney or court mail

outside inmate's presence does not violate prisoner's rights to

free speech or court access), cert. denied, ___ U.S. ___, 114

S.Ct. 1081 (1994); Walker v. Navarro County Jail, 4 F.3d 410, 413

(5th Cir. 1993).        Lastly, in the Ninth Circuit, Judge Reinhardt

has argued in dissent that the right to privacy was at stake.

Stevenson    v.     Koskey,      877   F.2d    1435,    1443   (9th     Cir.   1989)

(Reinhardt, J., dissenting) ("reading legal mail is a violation

of the prisoner's privacy rights").

       Similarly, district courts in our circuit, like the one

herein, have concluded that to read legal mail or to open it

outside a prisoner's presence violates the Constitution, though

they too have not agreed as to the constitutional rights at
issue.      See Jordan v. Fauver, ___ F.Supp. ___, 1995 WL 139274, at

*4-5 (reading legal mail in presence of inmate violates his right

to   court       access)   (D.N.J.   1995);    Proudfoot     v.    Williams,     803

F.Supp. 1048, 1052 (E.D.Pa. 1992) (opening and scanning outgoing

attorney and court mail in presence of prisoner violates inmate's

rights      to    petition,   counsel,   and    court     access);    Thornley   v.

Edwards, 671 F.Supp. 339, 342 (M.D.Pa. 1987) (opening incoming

court mail outside presence of inmate violates his rights to

counsel and court access), mot. denied, summ. judg. granted, 1988

WL 188333 (M.D.Pa. 1988); Carty v. Fenton, 440 F.Supp. 1161,

1162-63      (M.D.Pa.      1977)   (opening    incoming    court     mail   outside

inmate's presence violates his right to court access).

       Only once have we confronted the question of whether opening

and reading an inmate's legal mail violates the Constitution.

See Allen v. Aytch, 535 F.2d 817 (3d Cir. 1976).                       We did not

reach the issue, however, relying instead on Justice Brandeis's

concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S.

288 (1936) to remand for consideration of a non-constitutional

argument not raised in the district court.                  Allen, 535 F.2d at

823.
       A.        Freedom of speech

       As Justice Holmes recognized years ago, "[t]he United States

may give up the Post Office when it sees fit, but while it

carries it on the use of the mails is almost as much a part of

free speech as the right to use our tongues."                  United States ex
rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255

U.S. 407, 437 (1921) (Holmes, J., dissenting).                 Thus the Supreme
Court    has        generally    treated      interference           with    the     mail    as

implicating the First Amendment right to free speech.                              See Bolger

v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 & n.18 (1983);

Blount v. Rizzi, 400 U.S. 410, 416 (1971); Lamont v. Postmaster

General, 381 U.S. 301, 307-08 (1965).

       In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme

Court invalidated California prison regulations which provided

for     the    routine     censorship         of       inmates'      outgoing        personal

correspondence, on the grounds that the regulations violated the

free speech rights of the prisoners' correspondents.                              416 U.S. at

408 ("[w]hatever the status of a prisoner's claim to uncensored

correspondence with an outsider, it is plain that the latter's

interest       is    grounded     in   the    First      Amendment's         guarantee       of

freedom of speech").            See also Wolff, 418 U.S. at 576-77.

       In the years after Procunier and Wolff, however, the Court

abandoned      the     distinction      between        the    free    speech       rights    of

inmates and their correspondents on the outside.                                 Abbott, 490

U.S. at 411, n.9 ("any attempt to forge separate standards for

cases implicating the [First Amendment] rights of outsiders [and

inmates] is out of step with the intervening decisions").

       Clearly,        then,    prisoners         do    not    forfeit           their    First

Amendment      rights     to    use    of   the    mails.         For   example,         prison

officials violate a prisoner's First Amendment rights when they

refuse to deliver incoming personal mail simply because it is

written in a language other than English.                            Ramos, 639 F.2d at
581.     Similarly, officials violate the First Amendment when they

refuse    to    deliver        mail    that   allegedly        could        be    emotionally
disturbing     to   an     inmate,    in    the    absence       of     a       psychiatric

determination that the mail would indeed be upsetting.                                 Id. at

581-82.

        The Fifth Circuit has concluded that "[t]he precise contours

of a prisoner's right to free speech are . . . obscure,"                              Brewer,

3 F.3d at 821.       However, we need not determine the exact outer

limits of a prisoner's right to free speech, for we are satisfied

that a pattern and practice of opening properly marked incoming

court mail outside an inmate's presence infringes communication

protected by the right to free speech.                    Such a practice chills

protected expression and may inhibit the inmate's ability to

speak,    protest,       and    complain    openly,       directly,         and       without

reservation with the court.

     Here,      plaintiff's       complaint       alleged        that           on    fifteen

occasions defendants opened his legal mail outside his presence.

In response to this motion, he supplied evidence documenting five

instances in which his incoming court mail was opened in a three

month    period.     Defendants       admit      that    on   three         of       the   five

occasions documented by plaintiff, they did open his incoming

court mail outside his presence.                Because we must view the facts

in the light most favorable to plaintiff, the non-moving party,

and draw all reasonable inferences therefrom, we conclude that

there    is   sufficient       evidence    in   the     record   for        a    reasonable

person to infer that there exists a pattern and practice of

opening plaintiff's incoming court mail outside his presence.

     Plaintiff also alleges that defendants censored his mail.

In the context of the First Amendment and prison mail, however,
censorship     means   altering     or     "withhold[ing]     delivery         of    a

particular letter."         Procunier, 416 at 417.       See Wolff, 418 U.S.

at 576 ("freedom from censorship is not equivalent to freedom

from inspection or perusal").             But see Taylor, 532 F.2d at 469

(opening prisoner's mail is "indirect censorship").                      Plaintiff

points to only one occasion in which his mail was damaged, namely

when the briefing schedule was cut.              We decline to hold that a

single     instance    of    damaged      mail   rises   to      the     level      of

constitutionally       impermissible       censorship,      and        hence     this

allegation cannot withstand the motion for summary judgment.
    B.      Right to meaningful court access

     The     Supreme    Court     has     held   that    "prisoners        have      a

constitutional right of access to the courts."                Bounds, 430 U.S.

at 821.    See also Johnson, 393 at 489; Wolff, 418 U.S. at 577-80.

The Court explained that the access must be "adequate, effective,

and meaningful" to comport with the Constitution.                      Bounds, 430

U.S. at 822.      Yet, as the Fifth Circuit has observed, "[p]erhaps

because their textual footing in the Constitution is not clear,

these principles [of court access] suffer for lack of internal

definition and prove far easier to state than to apply."                       Morrow
v. Harwell, 768 F.2d 619, 623 (5th Cir. 1985).
     1. Source of the right

     The Bounds decision made only one reference to a particular

constitutional     source,    describing     the   prisoners'      complaint         as

alleging a violation of their "Fourteenth Amendment rights."                        430

U.S. at 818.      Since that decision, courts have concluded that the

right    arises    under    the   First    Amendment     right    to     petition,
Proudfoot, 803 F.Supp. at 1052; Jackson v. Procunier, 789 F.2d

307, 310 (5th Cir. 1986); Nordgren v. Milliken, 762 F.2d 851, 853

(10th Cir.), cert. denied, 474 U.S. 1032 (1985); Milhouse v.

Carlson, 652 F.2d 371, 373 (3d Cir. 1981); Washington, 782 F.2d

at 1139; the Sixth Amendment right to counsel, Proudfoot, 803

F.Supp. at 1052; Thornley, 671 F.Supp. at 342; Stover v. Carlson,

413 F.Supp. 718, 722 (D.Conn. 1976); and the Due Process Clause.

Jackson, 789 F.2d at 310; Nordgren, 762 F.2d at 853.              Adding more

spice to the soup, the Supreme Court has referred to the "equal

protection guarantee of 'meaningful access.'"                Pennsylvania v.

Finley, 481 U.S. 551, 557 (1987).            There is also a theory that

meaningful court access is protected under the Privileges and

Immunities Clause.      See Nordgren, 762 F.2d at 853.                We have

previously noted the various theories, without making our own

selection.     See Peterkin, 855 F.2d at 1036, n.18.
      a. Right to petition

      The First Amendment's right to petition "has a pedigree

independent of--and substantially more ancient than--the freedoms

of speech and press."        San Filippo v. Bongiovanni, 30 F.3d 424,

443 (3d Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 735
(1995).   In colonial times, it referred primarily to the power of

the   people    to   petition   their   legislatures.            In   fact,    a

significant    amount   of   colonial   legislation        was   initiated     by

citizen   petition.     Akhil   R.   Amar,    The   Bill    of   Rights   as   a

Constitution, 100 Yale L.J. 1131, 1156 (1991).              See also Note, A
Short History of the Right to Petition Government for the Redress

of Grievances, 96 Yale L.J. 142 (1986).3

           In the modern era, the Supreme Court has held that the

Petition Clause encompasses a right of access not only to the

legislative branch, but to the courts as well.             California Motor

Transport Co. v Trucking, Unlimited, 404 U.S. 508, 510 (1972);

Bill Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731, 741 (1983)

("the right of access to the courts is an aspect of the First

Amendment right to petition").           Thus in San Filippo we treated

the filing of a lawsuit as implicating the Petition Clause.               30

F.3d at 440, n.18.         In its most recent examination of the clause,

the Supreme Court appeared to treat the right to petition as

subsumed within the broad First Amendment right to freedom of

expression.        McDonald v. Smith, 472 U.S. 479, 482 (1985) (right

to petition is merely "an assurance of a particular freedom of

expression").         In    San   Filippo,   in   the   context   of   public

employment, we nevertheless distinguished between a petition and

mere speech to hold that "filing a non-sham petition is not a

constitutionally permissible ground for discharge."               30 F.3d at

443.        We conclude that the First Amendment right to petition, as



       3
     At the founding, the Petition Clause also implied a
"congressional duty to respond." Amar, Bill of Rights, 100 Yale
L.J. at 1156.   In the Civil War era, however, Congress enacted
rules abolishing the duty to respond, a change later sanctioned
by the Supreme Court.    Note, A Short History, 96 Yale L.J. at
164; Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465
(1979) (per curiam) (constitution does not require government "to
listen [or] to respond" to citizen petition); Minnesota State Bd.
for Community Colleges v. Knight, 465 U.S. 271, 285 (1984).
currently interpreted, is a birthplace for the right of court

access.
          b. Right to counsel

          The plain language of the Sixth Amendment is limited to

criminal proceedings,4 and thus, for example, the Supreme Court

has   determined        that   the    Amendment's   guarantee    of    a    right   to

counsel does not extend to habeas corpus proceedings, which are

civil.       Finley, 481 U.S. at 555.            Moreover, in Wolff, the most

recent Supreme Court examination of the status of a prisoner's

legal mail, the Court held that "[a]s to the Sixth Amendment, its

reach is only to protect the attorney-client relationship from

intrusion in the criminal setting."                 418 U.S. at 576 (emphasis

added).       See also Taylor, 532 F.2d at 472.              Accordingly, as to

civil actions, we conclude that the Sixth Amendment is not a

promising place for genealogical research on the right of court

access.

          Here, plaintiff characterizes the five pieces of opened mail

as regarding "a civil rights action" against prison officials.

Pl.Br. at 2.            Two of the letters were apparently related to

Bieregu      v.    Reno,   No.     93-4894   (D.N.J.),   a   civil    action.       In

addition,         the   briefing     schedule   allegedly    opened   and    damaged


      4
     "In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law, and
to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence." U.S.Const., Am. VI.
concerned a civil forfeiture case.                Certainly plaintiff offered

no   evidence    in    response     to    the    motion      for    summary   judgment

indicating that the opened mail involved a criminal proceeding.

Thus    we    will    explore     plaintiff's      Sixth       Amendment      claim   no

further.
       c. Due process

       As noted, the Bounds decision characterized the plaintiffs'

allegations of a denial of court access as arising under the

Fourteenth Amendment.           430 U.S. at 818.            In Procunier, the Court

held that California's mail censorship regulations violated the

"constitutional guarantee of due process of law [which] has as a

corollary the requirement that prisoners be afforded access to

the courts in order to challenge unlawful convictions and to seek

redress for violations of their constitutional rights."                       416 U.S.

at   419.      See    also   Ex   parte   Hull,       312    U.S.   546,   549   (1941)

(invalidating prison official's refusal to mail inmate's habeas

corpus      petition); Wolff,      418    U.S.    at    576    (referring      to   "due

process claim based on access to the courts").                         Thus there is

ample authority to conclude that among the progeny of the Due

Process Clause is the right of court access.

       We    note     that    defendants        are     federal       officials,      so

plaintiff's reliance on the Fourteenth Amendment is misplaced; if

grounded in the Due Process Clause, his right of access arises

under the Fifth Amendment.          We will construe the pro se complaint
liberally, however, Todaro v. Bowman, 872 F.2d 43, 44 n.1 (3d

Cir.   1989),    and    conclude     that    it   alleges       that   the    repeated
opening   of   properly   marked   incoming   court    mail   outside   his

presence has violated his Fifth Amendment right to court access.
       2. Scope of the right

       The Supreme Court's characterization of the right to court

access as requiring "adequate, effective, and meaningful" access,

Bounds, 430 U.S. at 822, provides only limited guidance as to the

scope of the right's protection.       We have noted that "the Court

did not define the term 'adequate' with specificity,"              Abdul-

Akbar v. Watson, 4 F.3d 195, 202 (3d Cir. 1993); unfortunately,

"[o]ur own application of Bounds has contributed only slightly to

a more precise standard of 'adequacy.'"        Id.    See also Brewer, 3

F.3d at 821 ("the precise contours of a prisoner's right of

access to the courts remain somewhat obscure").

       Although our decisions have primarily concerned the adequacy

and accessibility of prison law libraries and legal staff, see

Peterkin, supra; Valentine v. Beyer, 850 F.2d 951 (3d Cir. 1988);

Abdul-Akbar, supra, a few principles emerge.          Prison measures are

to be evaluated individually and in sum.        Abdul-Akbar, 4 F.3d at

203.    A court must determine whether the means of access "give

prisoners a reasonably adequate opportunity to present claimed

violations of fundamental constitutional rights to the courts."

Bounds, 430 U.S. at 825.       "'[T]he touchstone . . . is meaningful

access to the courts.'"        Peterkin, 855 F.2d at 1037 (quoting

Bounds, 430 U.S. at 823) (internal quotation omitted).

       Relying principally on our decision in Hudson v. Robinson,

678 F.2d 462 (3d Cir. 1982), the government contends that unless

a prisoner is "actually denied" access to the courts, his right
to meaningful access has not been violated.                           Hudson, 678 F.2d at

466.    See also Proudfoot, 803 F.Supp. at 1053, n.8; Walker, 4

F.3d   at   413    (opening      incoming           legal      mail   outside    prisoner's

presence    does    not     violate         right    to       court   access    unless    "his

position as a litigant was prejudiced by the mail tampering");

Brewer, 3 F.3d at 825.

       This analysis ignores our later decision in Peterkin.                             There

we distinguished "ancillary" aspects of court access, which "may

affect merely comfort or convenience without depriving a prisoner

of access," 855 F.2d at 1041, from prison practices that are

"central, not peripheral, to the right of access to the courts."

Id.    The former require a showing of actual injury but the latter

do not.     Id. at 1041-42.

       In   Peterkin      we    characterized             as    "ancillary"      an    action

seeking     to    require      the    prison        to    supply      gratis   pads,     pens,

pencils, postage, and photocopying to prisoners who had funds in

their institutional accounts sufficient to purchase the items.

See    Peterkin,     855       F.2d    at     1041-42          (discussing     Kershner       v.

Muzurkiewicz, 670 F.2d 440 (3d Cir. 1982) (in banc)).                                 We also

described    as     ancillary         the    issue       in    Hudson   itself,       where   a

prisoner sued because he was once required to wait ten days to

have a document notarized.                  Peterkin, 855 F.2d at 1039, 1041-42

(discussing Hudson,            supra).         By    contrast,        the   adequacy     of    a

prison law library concerned issues central to the right of court

access.     Id.

       Plaintiff does allege he was injured by the damage to his

briefing schedule, but he offers no evidence to establish that
the    damage       obscured         the    dates,    nor    to    dispute       defendants'

contention that he received a separate notice from the clerk's

office pursuant to Third Circuit LAR Misc. 107.2(a), informing

him that he had fourteen days to file a brief else the appeal

would     be    dismissed.             We     conclude      that       plaintiff    has     not

demonstrated that he has suffered an actual injury regarding

court access.

       Nonetheless, and although the question is close, we conclude

that repeated violations of the confidentiality of a prisoner's

incoming court mail is more central than ancillary to the right

of    court     access,        and    thus     no    showing      of    actual     injury    is

necessary for plaintiff to establish that the right has been

infringed.          We are satisfied that a practice of opening court

mail outside an inmate's presence implicates a core aspect of the

right.     Such conduct inhibits an inmate's ability to protect his

legal rights in court and frustrates the principles of Bounds.

Unlike    free      pens     or      slight    delays       in    notarizing       documents,

interference with such mail threatens the primary, often sole

means by which a prisoner can exercise his constitutional rights.

Without    assurances          that        legal    correspondence,         including      both

attorney and court mail, is confidential and secure, court access

can hardly be effective, adequate, and meaningful.

       In so holding, we distinguish between a single, inadvertent

instance       of   an   inmate's          court    mail   being       opened    outside his

presence,       and      a     pattern        and     practice         of   such    conduct.

Notwithstanding          our    characterization           that    protection       of    court

mail is central to an inmate's right of court access, and thus no
actual injury need be shown in the face of a pattern and practice

of opening such mail outside of the inmate's presence, we do not

necessarily rule out the need to show such injury where the

opening is isolated and inadvertent.                  See Castillo, 990 F.2d at

306-07 (allegations that three pieces of incoming court mail were

opened outside inmate's presence states colorable constitutional

claim); Washington, 782 F.2d at 1139 (distinguishing allegation

that    two   pieces     of   legal   mail     were    opened   outside      inmate's

presence,      which     would      indicate     "continuing       activity"     and

therefore      constitutional         violation,       from     "single      isolated

instance," which would not).              Cf. Morgan v. Montanye, 516 F.2d

1367,    1370-72   (2d     Cir. 1975)      (single      instance   of   legal    mail

opened outside presence of inmate does not violate Constitution),

cert. denied, 424 U.S. 973 (1976); Boyd v. Petsock, 795 F.Supp.

743 (W.D.Pa. 1992) (same).

       We need not specify a minimum number of instances in which

properly      marked    legal      mail   is   opened    outside    a     prisoner's

presence      sufficient      to   eliminate    the     requirement     of   showing

actual injury.         Determining whether a prisoner has demonstrated a

custom or practice is a fact-bound inquiry.

       Lastly, we note several distinctions that may clarify our

discussion of the right of court access as applied to prison

legal mail.      First, reading legal mail would appear to infringe

the right of access even more than simply opening and inspecting

it.     Second, as the Supreme Court noted, 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.                 Wolff, 418 U.S. at 576-77.

Third, interference with attorney mail probably infringes the

right of court access even more than interference with court

mail,         whether    the    correspondence       relates       to   a    criminal

conviction, a subsequent collateral proceeding, or a civil suit

to   protect        an    inmate's       constitutional       rights.        Of     all

communications, attorney mail is the most sacrosanct.                             Thus,

although the Sixth Amendment is not recognized as the repository

for such a shield in civil matters, see Finley, supra, the right

of   court       access    guarantees      the     privacy    of    attorney-client

communications.           See John W. Palmer, Constitutional Rights of

Prisoners, 4th ed., at 40 (Anderson Publishing Co. 1991) ("A

basic corollary to the right of access to the courts is the

inmate's right to communicate with an attorney concerning the

validity of his conviction or the constitutionality of conditions

within the detention facility").

         We    conclude    that    a     pattern    and   practice      of    opening

plaintiff's        properly     marked    incoming    court    mail     outside     his

presence impinges upon his constitutional rights to free speech

and court access.5             This determination does not depend on the
     5
     We add a note about the right to privacy, because plaintiff
relies on the Fourteenth Amendment and the district court cited
the decision in which Judge Reinhardt, in dissent, stated
"reading legal mail is a violation of the prisoner's privacy
rights."   Stevenson, 877 F.2d at 1443.    The Supreme Court has
recognized that the right to privacy survives incarceration.
Turner, 482 U.S. at 95-99. See also Monmouth County Correctional
Inst. Inmates v. Lanzaro, 834 F.2d 326, 334 (3d Cir. 1987), cert.
denied, 486 U.S. 1006 (1988).    Although authorized by §540.18,
routine reading of purely personal letters from friends and
family, those daily expressions of affection and love, may
implicate an inmate's right to privacy.       Certainly personal
mere        violation   by     prison    officials        of   §540.18      and     Policy

Statement          §13(a),   which      by    itself      does      not    establish    a

constitutional violation.               Daniels v. Williams, 474 U.S. 327,

332-33 (1986); Davis v. Scherer, 468 U.S. 183, 193-94 (1984).



                                             IV.

           We turn next to the question whether a pattern and practice

of     opening      plaintiff's       properly      marked     incoming     court    mail

outside his presence, which infringes his rights to free speech

and        court   access,     rises    to    the    level     of   a     constitutional

violation.

           In several decisions the Supreme Court has struggled to

define       the    standard    for     review      of   prison     regulations      which

impinge upon the constitutional rights of inmates.                           Though the

Court announced a fairly searching standard in Procunier,6 its

later decisions in Turner and Abbott held that as to prison mail,

information in the hands of prison officials may result in
ridicule, harassment, and retaliation. If prisoners are stripped
of the right to communicate privately their love, their hopes,
and   even  their   grievances,  then   recidivism  rather   than
rehabilitation is fostered.      Similarly, opening legal mail
outside the presence of an inmate, giving rise to the reasonable
inference that such mail is read, may also implicate the right to
privacy. We do not reach this issue, however, as plaintiff has
not placed it before us.
       6
     In Procunier, the Court held that a prisoner's mail is
protected "against unjustified governmental interference."    416
U.S. at 408-09.    To justify interference, the government must
show an "important or substantial governmental interest unrelated
to the suppression of expression," id. at 413, and that the
suppression was "no greater than is necessary or essential to the
protection of the particular governmental interest involved."
Id.
the    Procunier        standard   is   "limited     to    regulations         concerning

outgoing correspondence."               Abbott, 490 U.S. at 413 (emphasis

added).

       In Turner, the Court applied a less rigorous standard for

review of incoming mail, a standard which it applied in Abbott as

well.     The Court in Turner 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.           See also Shabazz, 482 U.S.

at 349-50 (applying Turner reasonableness standard to regulations

that restrict free exercise of inmate's religion).                             The Court

then      identified         several      factors         useful       in      evaluating

reasonableness.           Id. at 89-91.    See also Abbott, 490 U.S. at 414-

18; Sturm v. Clark, 835 F.2d 1009, 1013-14 (3d                        Cir. 1987).     The

Abbott    Court         acknowledged    that   the    Turner       standard      is   more

deferential        to    prison    officials   than       that   of    Procunier,      but

embraced the new test with the caveat that "a reasonableness

standard is not toothless."              Abbott, 490 U.S. at 414.               See also

Turner, 482 U.S. at 97 (ban on inmate marriage not reasonably

related to legitimate penological interests).

       Though the case before us concerns an alleged pattern and

practice of official conduct, rather than a prison regulation,

application of the Turner standard is appropriate.                          See Brewer, 3

F.3d at 825-26 (applying Turner standard to prison practice, not

regulation).            We also note that the government does not argue

that the conduct alleged by plaintiff comports with Turner.
      The first Turner factor asks whether there is a rational

connection between the infringing prison practice and a valid

government interest.        To justify interference with prisoner mail,

officials typically invoke their interests in rehabilitation of

inmates and institutional security.             See, e.g., Abbott, 490 U.S.

at 415; Shabazz, 482 U.S. at 348.               First, in the absence of a

determination by, for example, a prison psychiatrist that receipt

of particular correspondence would disturb an inmate, we hesitate

to conclude that the government interest in rehabilitation is

served     by   opening     incoming    court    mail   outside    an   inmate's

presence.       See Ramos, 639 F.2d at 581-81.          Second, the interest

in institutional security is generally linked to mail on the

supposition that correspondence may contain plans for escape or

incite violence.       We recognize the validity of this substantial

interest, but to argue that it is served on the facts of this

case--to    suggest    that    repeatedly   opening     incoming    court   mail

outside the presence of an inmate advances a legitimate interest

in institutional security--would overreach.

      In addition, we note that prison officials themselves have

long recognized that providing a confidential, reliable means for

prisoners to communicate their grievances to impartial courts and

government officials, and to obtain a fair resolution of those

grievances, releases tension in the prisons and itself advances

the   state      interest     in   maintaining    institutional     order    and

security.       See generally Ira P. Robbins, The Prisoners' Mail Box
and the Evolution of Federal Inmate Rights, 144 F.R.D. 127 (1993)

("Prisoners' Mail Box").           In 1929, for example, Superintendent of
Prisons (and later first Director of the U.S. Bureau of Prisons)

Sanford Bates wrote to the warden of the federal jail at Fort

Leavenworth:
     It seems to me important that the inmates in your
     institution should have some reasonable and dignified method
     of making known any real or fancied grievance that they
     might have.   An institution is a good deal like a steam
     boiler, and needs a safety valve occasionally.


Prisoners' Mail Box, 144 F.R.D. at 143.               An understanding of the

benefits of such a "safety-valve" persuaded prison officials that

preserving     the   confidentiality      of   communications         with courts,

agencies,     and    legislators      advanced,      rather    than    frustrated,

important penological interests.           Id. at 148-49, 153-54.7

         Consideration of the second Turner factor, the availability

of   alternate      means   of    exercising   the    rights    at    issue,   also

indicates that defendants' practice is not reasonably related to

a legitimate interest.           Although other means of expression remain

available to prisoners even when prison officials interfere with

their general mail, Abbott, 490 U.S. at 417-18, we are not aware

of means other than by way of uninhibited use of the mail for pro

se prisoners to exercise their rights of court access.

         Finally, the third Turner factor concerns the burdens of

accommodating the exercise of prisoners' constitutional rights.

To accommodate plaintiff's rights to free speech and court access
     7
     Interestingly, though prison officials initially censored
inmate correspondence to federal judges to ensure that the
content was decent, respectful, and non-libelous, when federal
judges and even the Clerk of the U.S. Supreme Court expressed a
preference for receiving prisoner mail unopened and unexpurgated,
the Bureau of Prisons changed its procedures.     Prisoners' Mail
Box, 144 F.R.D. at 155, 159-60.
by opening his incoming court mail only in his presence places no

burden at all on guards, prisoners, and the allocation of prison

resources: it is what the regulations have required since 1985.

See 28 C.F.R. §540.18 (1994).

      We hold that the pattern and practice of opening plaintiff's

properly marked incoming court mail outside his presence fails

the Turner reasonableness standard and violates the Constitution.

We acknowledge that our conclusion differs from that of the Fifth

Circuit, see Brewer, 3 F.3d at 825, but note that it comports

with the results reached by the majority of courts of appeals to

consider these precise or similar issues, not to mention the

results reached by our own district courts.       See Lavado, 992 F.2d

at 609-10; Castillo, 990 F.2d at 307; Lemon, 931 F.2d at 1468;

Washington, 782 F.2d at 1139; Jensen, 648 F.2d at 1182-83; Ramos,

639 F.2d at 582; Jordan, ___ F.Supp. at ___, 1995 WL 139274, at

*4-5; Proudfoot, 803 F.Supp. at 1052; Carty, 440 F.Supp. at 1162-

63.

      As noted above, we are 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.

The former may not infringe a prisoner's right to free speech,

nor his right to court access absent a showing of actual injury.

The   latter,   however,   both   infringes   those   rights   and   fails

Turner.


                                   V.
     Even      where   a    plaintiff      can    establish          a    constitutional

violation, under the doctrine of qualified immunity government

officials will not be liable if "their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known."                   Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).             For a right to be clearly established,

"[t]he contours of the right must be sufficiently clear that a

reasonable      official    would       understand      that    what          he   is   doing

violates that right."            Anderson v. Creighton, 483 U.S. 635, 640

(1987).       In contrast, if "the law is not established clearly when

an official acts, he is entitled to qualified immunity because he

'could not reasonably be expected to anticipate subsequent legal

developments.'"        In re City of Philadelphia, ___ F.3d at ___,

1995 WL 88161, at * 16 (quoting Harlow, 457 U.S. at 817-19).

Though    here    again    the     question      is    close,    we       conclude      that

defendants are not entitled to qualified immunity.

     There can be no dispute that the contours of plaintiff's

rights under §540.18 and §13(a) of the Policy Statement were

sufficiently       clear    that    a    reasonable         prison       official       would

understand      that   repeatedly       opening       plaintiff's         incoming      court

mail outside his presence violates those regulations.                              Although

promulgation      of   a   regulation      will       not    constitutionalize           its

violation, §540.18 and the Policy Statement surely undermine any

claim    by    defendants    that       they   were     unaware          of   their     legal

obligations in handling plaintiff's mail.                    Thus the government's

argument is reduced to the contention that while the illegality
of their behavior was manifest, the constitutional magnitude of

their actions was murky.

      We disagree.          First, in Procunier and Wolff the Supreme

Court made clear that the treatment of a prisoner's legal mail

implicates constitutional rights to free speech and court access.

The subsequent decisions in Turner and Abbott did not question

that interference with prison mail infringed these constitutional

rights;     the    latter     decisions      merely     established          that   such

infringement       was      constitutionally        permissible         if     it    was

reasonably related to a legitimate penological purpose.                             Here,

defendants    do    not     even   argue    that    their   conduct      meets      this

standard.

      Second,      though    numerous       other     courts     of   appeals       have

considered conduct akin to that alleged by plaintiff, no gaping

divide has emerged in the jurisprudence such that defendants

could reasonably expect this circuit to rule other than we do.

See Lavado, 992 F.2d at 609-10; Castillo, 990 F.2d at 307; Lemon,

931 F.2d at 1465; Washington, 782 F.2d at 1139; Ramos, 639 F.2d

at 582; Jensen, 648 F.2d at 1182-83.                Only the Fifth Circuit has

reached a contrary decision.               Brewer, 3 F.3d at 825; Walker, 4
F.3d at 413.

      The Seventh Circuit's decision in Castillo is particularly

instructive.       There, a prisoner alleged that three letters from a

federal courthouse were opened outside his presence.                            Because

three instances "may be indicative of ongoing activity," 990 F.2d

at   306,   the    Seventh    Circuit      determined     that    the    inmate      had

"presented a colorable claim" of a constitutional violation and
reversed the district court's dismissal of the action.                            Id. at

307.

        The Sixth Circuit's decision in Lavado is also relevant.

There, the court denied summary judgment to defendant prison

officials on the basis of qualified immunity where one letter

from the Court of Appeals for the Eleventh Circuit was allegedly

opened outside an inmate's presence and a second letter, from a

state    law   department,       was    allegedly        opened    and    read   in     his

presence.      Lavado, 992 F.2d at 609-10.                 The Sixth Circuit held

that     "it   was      clearly       established         at   the       time    of     the

openings/reading in the instant case that prisoners' mail could

not be opened or read in [an] arbitrary or capricious fashion."

Id. at 610.

       Third, the district courts in our circuit who have addressed

the issue have consistently determined that repeatedly opening a

prisoner's      legal     mail        outside      his    presence       violates       the

Constitution.     See Jordan, ___ F.Supp. at ___, 1995 WL 139374, at

*5; Proudfoot, 803 F.Supp. at 1052; Carty, 440 F.Supp. at 1162-

63.      See   also   Young      v.    Keohane,     809    F.Supp.       1185,   1197-98

(M.D.Pa. 1992) (denying qualified immunity to prison officials

who allegedly intercepted mail addressed to judges and court

personnel).

        Finally, the absence of a previous decision from our court

on     the   constitutionality          of   the    conduct       at     issue   is     not

dispositive.      We have explained that the "clearly established"

standard "require[s] 'some but not precise factual correspondence

between relevant precedents and the conduct at issue.'"                               In re
City of Philadelphia, ___ F.3d at ___, 1995 WL 88161 at *25

(citation omitted).          We think the facts of Castillo, Lavado,

Proudfoot, and Carty enjoy a substantial "factual correspondence"

to the circumstances here.

     Thus, we conclude that though our court has not previously

ruled on this precise issue, the contours of defendants' legal

obligations     under    the     regulations      and   Constitution      were

sufficiently    clear   that     a   reasonable     prison    official    would

understand that repeatedly opening plaintiff's properly marked

incoming    court     mail     outside     his    presence     violates     the

Constitution.       Accordingly, we will reverse the district court

order   granting    defendants    qualified      immunity    from   plaintiff's

claims.

                                     VI.

     For the foregoing reasons, we will affirm in part, see note

1, supra, and reverse in part the order of the district court

granting summary judgment to all defendants on all claims.
Bieregu v. Reno, No. 94-5719




SCIRICA, Circuit Judge, concurring.




            I agree that Bieregu has alleged a constitutional

violation of his right to court access, and that the law was

sufficiently established to preclude a finding of qualified

immunity.   But I have doubts that Bieregu's free speech rights

are implicated here.

            First Amendment free speech rights are implicated when

prison officials censor inmates' mail.    Procunier v. Martinez,

416 U.S. 396, 409 (1974), overruled on other grounds, Thornburgh

v. Abbott, 490 U.S. 401 (1989).    But "freedom from censorship is

not equivalent to freedom from inspection or perusal."    Wolff v.

McDonnell, 418 U.S. 539, 576 (1974).     Because it is far from

clear that defendants censored Bieregu's court mail, I would base

this holding on his constitutional right to court access.

                 Also, because Bieregu has not claimed his right to

privacy was infringed, it is unnecessary to address this issue.
