                                 ___________

                                 No. 96-1022
                                 ___________

Clyde Weiler,                          *
                                       *
                    Appellee,          *
                                       *     Appeal from the United States
     v.                                *     District Court for the
                                       *     Eastern District of Missouri.
James Purkett; Leah Embly,             *
                                       *
                     Appellants.       *


                                 __________

                   Submitted:    September 13, 1996

                       Filed:    January 3, 1997
                                 ___________

Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.

                                 ___________

JOHN R. GIBSON, Circuit Judge.


     James Purkett and Leah Embly appeal from the district court's denial
of their second summary judgment motion in this case challenging the mail
rules at the Farmington Correctional Center.         Clyde Weiler brought this
civil rights suit under 42 U.S.C. § 1983 (1994), claiming that the
defendants violated his First Amendment rights by confiscating a package
his son mailed to him at Farmington.       Purkett and Embly initially moved for
summary judgment, which the district court granted.         We reversed.   After
remand, Purkett and Embly filed a second motion for summary judgment.        This
motion included supplementary affidavits, which they contend resolve the
factual issues that prevented them from getting summary judgment on their
original motion.   The district court denied their second motion, and we
affirm.


      In September 1991, a package arrived at Farmington addressed
to Clyde Weiler, an inmate.        The package came from Weiler's son.            It was
labeled "legal papers," and contained legal files and a trial transcript
of the case on which Weiler was in jail.             Pursuant to the Farmington mail
procedures, the Farmington mailroom supervisor, Leah Embly, sent Weiler a
notice telling him that his package had been confiscated and giving him
options for disposing of the package.             The package was never delivered to
Weiler.


        Farmington mail policies distinguished packages from other types of
mail and regulated more strictly the circumstances under which inmates
could receive packages.     Generally, inmates could only receive packages
that came directly from an approved vendor, except that an inmate about to
be released could receive packages of street clothes from other sources,
and the Farmington Superintendent could approve other types of packages in
advance of their receipt.       Purkett approved the mail policy as Institution
Head at Farmington.       Weiler's package did not fall into any of the
permitted categories so Embly confiscated it.             Weiler sued under section
1983,    alleging   violation    of   his    First    Amendment   and   various   other
constitutional rights.


        Embly and Purkett moved for summary judgment.             Weiler opposed the
motion by filing an affidavit signed by ten Farmington inmates averring
that each of them had received packages containing legal papers from
friends or family through the Farmington mailroom.


        The district court granted Embly and Purkett's motion.           We reversed.
Weiler v. Purkett, No. 93-2041 (8th Cir. Jan. 23, 1995).            We held that the
affidavits from the ten inmates indicating that the package policy was
widely disregarded raised a material issue of fact as to whether the
Farmington package regulations were arbitrary and not reasonably related
to a legitimate government interest.              Slip op. at 5 (citing Griffin v.
Lombardi, 946 F.2d 604, 607-08 (8th Cir. 1991), and Thongvanh v. Thalacker,
17 F.3d 256, 259 (8th Cir. 1994)).            We also held that Embly and Purkett
were not




                                            -2-
entitled to qualified immunity because the conflicting affidavits created
an issue of fact about whether it would have been reasonable for them to
believe that their actions did not violate Weiler's First Amendment rights.
Id.


        On remand, Embly and Purkett again moved for summary judgment,
supplementing     the   record   with   their    separate    affidavits      stating   in
substantially identical language:


        I have never made a policy decision . . . that [the package
        policy] should not be applied to unauthorized packages received
        by some inmates.

              To my knowledge there has never been an exception made to
        these policies either officially or unofficially.        If any
        inmate had received an unauthorized package, it would have been
        as a result of human error and not due to a policy decision to
        exempt certain inmates or packages from the operation of [the
        policies].


Purkett also argued that Weiler's claim against him could only be founded
on a respondeat superior theory, which is not actionable under section
1983.


        The district court denied the second motion.         The court held that the
affidavits do not resolve the factual disputes about the reasonableness of
the   package   policy   that    were   raised    by   the   evidence   of    irregular
enforcement of the policy.       The same factual issue that precluded summary
judgment on the merits also precluded summary judgment on the qualified
immunity claim.    The court rejected Purkett's respondeat superior argument
because Weiler attacked the reasonableness of the regulation itself, which
Purkett had personally approved, thus providing a basis for personal,
rather than respondent superior liability.


        We conclude that the new affidavits do not resolve the factual issues
on which we based our first decision.




                                         -3-
        We review the district court's grant of summary judgment de novo.
See Uhl v. Swanstrom, 79 F.3d 751, 754 (8th Cir. 1996).      Summary judgment
is appropriate when there is no material issue of fact and when the moving
party is entitled to judgment as a matter of law.      Id.


        Purkett and Embly argue that their affidavits establish that any
irregular application of the package policy had nothing to do with them.
This argument fails for two reasons.       First, Weiler's evidence tends to
prove that exceptions were being made to the policy.     Purkett and Embly's
affidavits contradict that evidence by indicating that there has never been
an official or unofficial deviation from the policy, hence perhaps no
deviation at all.   Obviously, on summary judgment motion we may not resolve
this conflict in evidence about whether exceptions have or have not been
made.    Second, to the extent that Purkett and Embly admit that exceptions
could have been made, but deny knowledge of any exception, Purkett and
Embly are again asking us to resolve a factual issue in their favor.
Evidence of a pervasive practice at Farmington can support an inference
that they did know of the practice, despite their affidavits to the
contrary.     They argue that they are not responsible for other people's
errors, but this is beside the point; the theory we reversed on before was
not that deviations from the package policy were actionable, but rather
that widespread deviations created a factual issue as to whether the policy
was reasonably related to a legitimate government interest.     Weiler, slip
op. at 5.


        Similarly, Purkett's argument about respondeat superior misconceives
the theory of the case.      He is not potentially liable for the acts of
others, but for his own acts in approving and maintaining regulations that
could be found to be arbitrary.   Therefore, Weiler's claim against him does
not depend on respondeat superior principles.




                                     -4-
      As we held in the first appeal, the same factual issues that preclude
summary judgment on the merits also preclude summary judgment on the ground
of qualified immunity.     See slip op. at 5; Griffin, 946 F.2d at 608; see
generally Greiner v. City of Champlin, 27 F.3d 1346, 1352 ("[I]f there is
a genuine dispute concerning predicate facts material to the qualified
immunity issue, there can be no summary judgment.").


      Finally, Purkett and Embly attack Weiler's access to courts claim.
The district court noted that they had not raised that theory before the
district court in their second motion.          This being the case, we need not
consider an argument on appeal that they did not present to the district
court.


      We affirm the judgment of the district court.


BEAM, Circuit Judge, dissenting.


      A funny thing happened to this case on the way to this forum: a
metamorphosis occurred.      Whether analyzed in its present or original
formulation,    however,   the   matter    should   be   reversed   and   dismissed.
Accordingly, I dissent.


I.   BACKGROUND


      Weiler is an eighty-two-year-old sex offender who is incarcerated in
Missouri after conviction in 1989, at age seventy-three, of one count of
sodomy and two counts of first degree sexual abuse of a ten-year-old female
child.   He had apparently been abusing her since she was seven.           State v.
Weiler, 801 S.W.2d 417, 418 (Mo. Ct. App. 1990).         Since being incarcerated,
he has become




                                          -5-
a frequent litigator in federal court.1


     The major allegation in Weiler’s initial complaint was summarized by
the district court in its order preceding Weiler’s first appeal, Weiler v.
Purkett,    No. 94-204, 1995 WL 21660 (8th Cir. 1995) (per curiam) (Weiler
I) as follows:   “defendants wrongfully confiscated and destroyed a package
that contained legal materials [Weiler] needed in order to pursue post-
conviction relief procedures.”   Weiler v. Purkett, No. 91-2294 C(2), mem.
op. at 3 (E.D. Mo. Oct. 14, 1992).


     The package was, without dispute, marked “From R. Weiler” who is
allegedly Weiler’s son.     He is not a lawyer, judge or other public
official.   Weiler contends that the parcel was also labeled “legal mail”
(the court in its current opinion says “legal papers”) and such allegation
must be taken as true at this stage of the litigation.       The contents,
according to Weiler, were a trial transcript and, perhaps, other legal
papers which Weiler wanted to use to prepare an additional state court
postconviction pleading and/or a federal habeas petition.


     There is also no dispute that Embly, the prison mailroom supervisor,
confiscated the package and sent Weiler a contraband notice.    The notice
gave him at least four choices for disposition




     1
      See Tyler v. Carnahan, No. 94-CV-17 (E.D. Mo. filed January
6, 1994) (Weiler participating as one of many plaintiffs, filing
numerous pro se motions); Weiler v. Purkett, No. 93-CV-2260 (E.D.
Mo. filed October 22, 1993); Tyler v. Perry, No. 93-CV-939 (E.D.
Mo. filed April 23, 1993) (Weiler participating on claim that
confiscation of his property violated Constitution); Weiler v.
Purkett, No. 92-CV-1082 (E.D. Mo. filed June 10, 1992); Tyler v.
Ashcraft, No. 92-CV-1386 (E.D. Mo. filed July 16, 1992) (Weiler,
one of the plaintiffs, submitted multiple pro se filings until
court ordered clerk to accept no more filings from individual
litigants; Weiler’s continuing filings not accepted thereafter);
Weiler v. Purkett, No. 91-CV-2294 (E.D. Mo. filed November 8,
1991).

                                     -6-
of the mailing: it could be returned by mail to the sender if Weiler
provided the postage; he could have someone who visited him remove the
package from the prison; he could have the package destroyed; or he could
pursue an appeal of the confiscation within the procedural framework set
forth    in    the   prison   rules.     He   availed   himself   of   none    of    these
opportunities and the package was destroyed by prison officials.                         Some
months later, the state provided Weiler with another copy of the destroyed
transcript.


        Although the nature of his claims was not completely clear from the
pleadings, the district court assumed that Weiler was asserting a two-
pronged First Amendment violation, an abridgement of his right to receive
mail and interference with meaningful access to the court.               Both of these
interests are protectible under the Constitution.


        Regulations relevant to these rights were in place at Farmington.
Incoming “privileged mail” may be received from “`judges, attorneys,
courts,       elected    government    officials,    departmental      and    divisional
administrators . . . [as] determined by the return address.'”                   Id. at 8
(quoting MDCHR Procedure for Inmate Mail. No. IS13-1.1(II)(B)) (emphasis
added).       Packages, on the other hand, received for delivery to an inmate
“`must be from an approved vendor, except packages containing dress-out
clothing for inmates scheduled for release from the institution within 30
days,    and    those   [packages]     previously   approved,   in   writing,       by    the
Superintendent.”        Id. at 9 (quoting FEE Standard Operating Procedure No.
13-1.1(III)(E)).        There is no dispute that “R. Weiler” is not an approved
vendor    as contemplated by the regulation.              Neither was the package
preapproved by the superintendent.


        The dispute reached the district court on cross-motions for summary
judgment.      The defense raised by Embly and Purkett was based upon qualified
immunity.




                                           -7-
      It is clear that Weiler did not, in any motion or paper placed before
the district court prior to Weiler I, attack the validity of these
regulations.    He challenged only their application to his particular
package because of his claim that it was     marked “legal mail.”   Thus, the
district court assumed the validity of the relevant regulations.       Id. at
10.   The district court, finding no underlying constitutional misconduct,
dismissed the case.   Id. at 13, 16.    Applying Pletka v. Nix, 957 F.2d 1480,
1485 (8th Cir. 1992), the court asserted that it need not discuss the issue
of qualified immunity.   Memo. Op. of Oct. 14, 1992 at 13.2


      In Weiler I, Weiler appealed the district court’s dismissal.    Counsel
was appointed and briefing was completed.     On appeal, Weiler still made no
claim that the Farmington mail regulations violated the Constitution (or
any other particular standard).   His argument on appeal was twofold: one,
that since his package was marked “legal mail,” its destruction violated
his First Amendment right of access to the courts;3 and, two, that the
prison regulations themselves were violated because they did not provide
for destruction of a confiscated package.    There was not a word in Weiler’s
briefs challenging the validity of the mailroom regulations.          Indeed,
Weiler explained that he “is not challenging




      2
      It was probably error for our ruling in Weiler I not to have
at least remanded the case to the district court for a ruling on
the qualified immunity defense rather than making a peremptory
ruling on that issue at the appellate level. Ford v. Dowd, 931
F.2d 1286, 1294 (8th Cir. 1991).
      3
      The district court noted in its October 14, 1992, order of
dismissal that Weiler’s meaningful access claim was without merit
because he had not demonstrated that he had suffered prejudice from
the nondelivery as required by our jurisprudence.       Berdella v.
Delo, 972 F.2d 204, 210 (8th Cir. 1992).       Since the state has
provided Weiler with another copy of the transcript, it is doubtful
that prejudice can be shown. Weiler has not renewed this claim in
the current appeal by attempting to demonstrate specific prejudice
as required by Berdella or by otherwise arguing this district court
decision.

                                       -8-
the constitutionality of the [Farmington] procedure; he is challenging the
application of the policy to his package.”    Reply Brief of Appellant in 93-
2041 at 5.    Nonetheless, the court in Weiler I ignored the “regulation
validity” stance of Weiler and held that an affidavit of ten other inmates
that they had purportedly received legal mail packages from friends and
relatives, created for Weiler a fact question as to the constitutional
validity of the Farmington mail regulations.       The court first framed the
issue as to whether “the affidavit . . . created an issue of fact as to
whether defendants neutrally applied the regulation.”      Weiler I at *1-2.4
Then, although the regulations were not challenged by Weiler, the court on
its own transformed the dispute into a rules validity question saying:    “We
hold   that Weiler presented sufficient evidence to withstand summary
judgment; the affidavit signed by the ten inmates raised a material issue
of fact as to whether the package regulations are arbitrary and not
reasonably related to a legitimate government interest.”     Id. at *2.   The
court, without analysis, declared that the defendants were not entitled to
qualified immunity, although, as earlier indicated, the district court had
not made a determination on that issue.      Id.


       Upon remand to the district court through Weiler I, Embly and Purkett
renewed their request for summary judgment on the basis of qualified
immunity.    They filed additional affidavits, not rebutted by Weiler,
stating that neither of them participated in or had knowledge of any
misapplication of prison mail regulations with regard to the ten inmates.


       Noting that these “statements [by Embly and Purkett] do not




       4
      Weiler has, however, never asserted an equal protection
allegation and the court has not recognized such a claim in either
of its opinions. In any event, it would have been frivolous to
assert such a position under the undisputed facts of this action.

                                    -9-
address whether the [package] regulation itself [is] reasonable,” the
district court denied the motion for summary judgment.         Weiler v. Purkett,
No. 91-2294 C(2), memo. op. at 9 (E.D. Mo. Nov. 17, 1995).               Embly and
Purkett again appeal.


II.   DISCUSSION


      A.   Procedure


      We reach the basic constitutional issues upon a denial of summary
judgment only because of the qualified immunity defense asserted by the
defendants.   The threshold question underlying a qualified immunity claim
is whether the plaintiff has alleged a constitutional violation at all.
Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir. 1994) (citing Siegert
v. Gilley, 500 U.S. 226, 232 (1991)).      Then, if a constitutional violation
has   occurred,    a    concomitant   question   must   be   answered:    was   the
constitutional right clearly established at the time the defendants acted
with regard to Weiler’s package?         Siegert, 500 U.S. at 233.       Thus, the
first consideration is whether Weiler has alleged a violation of any
constitutional right in the first instance.


      B.   Constitutionality of the Rules


      It is, as the court stated in Weiler I, well settled that an inmate
has a First Amendment right to receive mail.            Thornburgh v. Abbott, 490
U.S. 401, 405 (1989).      Likewise, the First Amendment generally protects a
prisoner’s access to the courts via the mail.           Bounds v. Smith, 430 U.S.
817, 819 (1977).       These constitutional rights may, however, be limited by
prison regulations that are reasonably related to legitimate penological
interests.    Turner v. Safley, 482 U.S. 78, 89 (1987); Thongvahn v.
Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994).         While Turner sets out four
factors for consideration of the validity of prison regulations, we need
not concern ourselves with them here.          The Supreme Court in Wolff




                                        -10-
v. McDonnell, 418 U.S. 539, 576-77 (1974), has said:


       We think it entirely appropriate that the State require any
       such communications to be specially marked as originating from
       an attorney, with his name and address being given, if they are
       to receive special treatment.      It would also certainly be
       permissible that prison authorities require that a lawyer
       desiring to correspond with a prisoner, first identify himself
       and his client to the prison officials to assure that the
       letters marked privileged are actually from members of the bar.


Id. (emphasis supplied) (original emphasis omitted).


       So, it is abundantly clear that the Farmington legal mail rule, being
even   more   generous   to   inmates   than   the    Wolff   requirements,   passes
constitutional muster as a matter of law.            Since the package came from a
family member, not a person or entity specified in the rule, it was not
legal mail.     I do not understand that either the court or Weiler now
contends otherwise.


       The next question, then, is whether the Farmington package policy
violates the Constitution.        For this inquiry, we start with Bell v.
Wolfish, 441 U.S. 520 (1979) wherein the Supreme Court validated a total
ban on the receipt of packages containing food or personal property except
for one package of food at Christmas,5 saying, “[i]t is all too obvious
that such packages are handy devices for the smuggling of contraband.”           Id.
at 555.    This court, applying Bell in Jensen v. Klecker, 648 F.2d 1179 (8th
Cir. 1981), recognized this holding when we said “[i]nstitutions may impose
restrictions on the receipt of packages from outside the penitentiaries.”
Id. at 1183.




       5
      I assume that there is no dispute that the contents of
Weiler’s package contained his “personal property.”       We have
frequently labeled legal materials as “personal property.” See
Noorlander v. Ciccone, 489 F.2d 642, 651 (8th Cir. 1973).

                                        -11-
     Other circuits have reached the same result.             In Scalice v. Davies,
No. 92-36909, 1994 WL 192430 (9th Cir.), cert. denied, 115 S. Ct. 270
(1994), the Ninth Circuit affirmed a grant of summary judgment in favor of
a mailroom clerk who had confiscated a package sent to an inmate.                 The
court held, “[e]nforcement of prison regulations which prohibit a prisoner
from receiving materials that are not shipped directly from a publisher or
retailer does not violate clearly established [constitutional] rights.”
Id. at *2.


     So,     the   package   rule   in   play   in   this   litigation   is   clearly
constitutional as a matter of law.         Weiler recognized as much until our
erroneous opinion in Weiler I prompted him to change his stance in this
later appeal.


     As earlier noted, Weiler filed an affidavit of ten Farmington inmates
claiming that on unspecified dates under unstated circumstances from
unidentified mailroom personnel each of them had received legal papers and
transcripts from “family or friends.”           Applying Griffin v. Lombardi, 946
F.2d 604 (8th Cir. 1991), the court, in Weiler I and in this opinion, holds
that this affidavit is sufficient to subject a package regulation that
otherwise passes constitutional muster under Supreme Court edict to
“factual” uncertainty as to its reasonableness.               This rationale simply
misapplies Griffin and the law of this circuit.


     Griffin relates to subject matter and not the mode or procedure
applicable to receipt or distribution of the prison mail, whatever its
contents may be.       We held that Griffin had the right to receive his
original college diploma and grade transcript via a mailing that otherwise
complied with procedural regulations.           Id. at 607.    We likened the issue
to the total ban on Aryan Nations white-supremacy material invalidated in
Murphy v. Missouri Department of Corrections, 814 F.2d 1252 (8th Cir.
1987).


     Here, however, there is no dispute that Weiler is entitled to




                                         -12-
receive “legal mail.”     He must, however, receive it under the rules
established by Farmington, rules which the Supreme Court has said are
constitutionally valid.   Wolff, 418 U.S. at 577.    Weiler (and the court)
now questions the reasonability of a “package rule” which Weiler seeks to
manipulate to evade the    “legal mail” rule in place at Farmington.     In
essence, Weiler is simply frustrated at his inability, until the court
intervened, to exploit the mail regulations to his advantage.    Weiler has
a right to receive mail and to access the court but not on his own terms.
He must do so under rules designed to limit the flow of contraband into the
prison.


     Like the legal mail regulation at Farmington, the package rule
exceeds, in favor of inmates, package regulations validated in Bell and
Jensen.     And, violation of a state prison regulation that exceeds the
requirements of the Constitution does not support a 42 U.S.C. § 1983 claim.
Brown v. Nix, 33 F.3d 951, 954 n.2 (8th Cir. 1994).         Accordingly, I
disagree with the holding of the court with regard to Weiler’s new
challenge to the reasonability of the Farmington legal mail or package
policies.


     Whether the ten inmates, in violation of the mailing procedures at
Farmington, did or did not receive legal papers mailed by relatives and
friends is, of course, a factual question.   The “ultimate conclusion as to
constitutionality” of a regulation is, however, a question of law.     Hill
v. Blackwell, 774 F.2d 338, 343 (8th Cir. 1985).     So, assuming, for sake
of argument, that ten inmates did receive legal papers from relatives and
friends, the question remains, in the final analysis, whether this court,
with the Supreme Court’s guidance, finds, as a matter of law, that the
mail regulations at Farmington pass or fail constitutional muster.    Under
Supreme Court precedent, we must find they do.      Even if 100 inmates had
received religious literature, college diplomas, or legal papers through
a negligent, or even willful, breakdown in mailroom procedures, and were
willing to state so by affidavit, the




                                   -13-
reasonableness of legal mail or package regulations, designed to control
receipt of contraband to inmates, would be no less constitutional.


     C.   Qualified Immunity


     The defendants claim that they are entitled to qualified immunity.
That means, of course, that even if the mail rules are somehow of
questionable constitutionality, which they are not, immunity extends to the
defendants if “their conduct does not violate clearly established . . .
constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).   A right
is “clearly established” for qualified immunity purposes if


     [T]he contours of the right [are] sufficiently clear that a
     reasonable official would understand that what [she] is doing
     violates that right.    This is not to say that an official
     action is protected by qualified immunity unless the very
     action in question has previously been held unlawful, but it is
     to say that in the light of pre-existing law, the unlawfulness
     must be apparent.


Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted).


     Whether a constitutional right is clearly established, is a question
decided under an objective standard.      “Its application to a particular
defendant’s conduct is a question of law that ordinarily should be decided
by the court long before trial.”    Swenson v. Trickey, 995 F.2d 132, 133
(8th Cir.) (citations omitted).    Thus, to remand this case for trial on
substantive section 1983 issues because there is a purported fact question
on the reasonability of a prison mail regulation, the language of which is
undisputed and which the Supreme Court, through established precedent, has
validated, is a difficult result to understand.




                                   -14-
       “The threshold [legal] question in analyzing a qualified immunity
claim is whether the plaintiff has alleged a constitutional violation . . .
at all.”     Thomas v. Hungerford, 23 F.3d 1450, 1452 (8th Cir. 1994) (citing
Siegert v. Gilley, 500 U.S. 226, 232 (1991)).           Then, if a constitutional
violation has occurred, a concomitant question of law must be determined:
was the constitutional right, as defined by Anderson v. Creighton, clearly
established at the time the defendants acted with regard to Weiler’s
package?     Siegert, 500 U.S. at 232.


       Given the holdings in Turner, Thongvahn, Scalice, Wolff and Jensen
and numerous other cases in this and other circuits, the answer to both
questions must be a resounding “no.”      The defendants are clearly entitled
to qualified immunity.


III.   CONCLUSION


       The    Farmington   mail   regulations   pass,   as   an    initial   matter,
constitutional muster and, if they arguably do not, confiscation and
destruction of Weiler’s package did not abridge rights that were so clearly
established that a reasonable mailroom attendant and prison superintendent
would have understood that a violation was occurring.             Thus, the holding
of the district court should be reversed and the case dismissed.                  I
dissent.


       A true copy.


              Attest:


                    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -15-
