                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0182n.06

                                            No. 09-2080

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                     FILED
                                                                                      Mar 28, 2011
                                                                                LEONARD GREEN, Clerk
RONALD WASHINGTON,                                         )
                                                           )
       Plaintiff-Appellant,                                )
                                                           )    ON APPEAL FROM THE UNITED
v.                                                         )    STATES DISTRICT COURT FOR
                                                           )    THE WESTERN DISTRICT OF
BARRY DAVIS, Warden; CATHERINE BAUMAN;                     )    MICHIGAN
UNKNOWN PARTIES, named as “John/Jane Does”,                )
                                                           )
       Defendants-Appellees,                               )




       Before: BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges.


       KETHLEDGE, Circuit Judge. Ronald Washington, a Michigan prisoner proceeding pro se,

appeals a district court order dismissing his 42 U.S.C. § 1983 civil rights action. We vacate the order

and remand.

                                                  I.

       Washington sued Newberry Correctional Facility Warden Barry Davis and Deputy Warden

Catherine Bauman, claiming that they violated his right of access to courts by allowing prison staff

to read his legal mail. Washington sought damages and injunctive relief. The district court screened

the complaint pursuant to the Prison Litigation Reform Act (“PLRA”) and dismissed it for failure

to state a claim. See 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The court held that the

prison’s policy of reviewing Washington’s legal mail before providing him with photocopying
No. 09-2080
Washington v. Davis

services was permissible under Bell-Bey v. Williams, 87 F.3d 832 (6th Cir. 1996). The court did not

address Washington’s other claims.

        This appeal followed.

                                                   II.

        We review the district court’s decision de novo. Grinter v. Knight, 532 F.3d 567, 571-72

(6th Cir. 2008). In reviewing a dismissal for failure to state a claim, we must determine whether the

complaint “contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks

omitted). To state a claim under 42 U.S.C. § 1983, Washington must allege the violation of a right

secured by the federal Constitution or laws and must show that the violation was committed by a

person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). The main issue

on appeal is whether Washington alleged the violation of a constitutional right.

        Our court “has held that a prisoner has a fundamental interest in preserving the confidentiality

of his legal mail.” Bell-Bey, 87 F.3d at 837. Thus, prison policies that regulate outgoing legal mail

must further “an important or substantial governmental interest unrelated to the suppression of

expression,” and may not limit prisoners’ First Amendment freedoms more than necessary to protect

the governmental interest involved. Procunier v. Martinez, 416 U.S. 396, 413-14 (1974); see also

Thornburgh v. Abbott, 490 U.S. 401, 411 (1989) (clarifying that Martinez does not impose a “least

restrictive means” test).

        Washington’s complaint broadly alleges that the defendants’ custom is to require prisoners

to leave their legal mail “with [prison] library staff for up to three days to read outside the prisoner’s

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No. 09-2080
Washington v. Davis

presence when he needs photocopies of legal documents and is indigent.” Thus, taken on its face,

the complaint alleges unrestricted review of legal mail, for a lengthy period of time, outside the

prisoner’s presence. Those facts, if proven, are enough to trigger the scrutiny described in Martinez.

Moreover, because the district court dismissed Washington’s complaint before the defendants were

served, there is nothing in the record to show that their putative custom both furthered an important

government interest and was not more restrictive than generally necessary to protect the

government’s interest. See Martinez, 416 U.S. at 413-14; Bell-Bey, 87 F.3d at 838. At this very

early stage in the proceedings, therefore, Washington’s allegations support a plausible claim that the

policy in question is unconstitutional. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

        The district court did not address Washington’s allegations that prison staff refused to

photocopy legal research materials and documents for indigent prisoners. The court should address

those issues on remand. In light of our decision, Washington’s remaining arguments on appeal are

moot.

        We vacate the district court’s judgment and remand the case for further proceedings

consistent with this opinion.




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