PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH R. O'DELL, III,
Plaintiff-Appellee,

v.
                                                                        No. 96-7564
J. D. NETHERLAND, Sued in his
official capacity as Warden at
Mecklenburg Correctional Center,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-96-800-3)

Argued: April 10, 1997

Decided: May 5, 1997

Before RUSSELL and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Reversed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark Ralph Davis, Senior Assistant Attorney General,
Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellant. Steven David Rosenfield, Char-
lottesville, Virginia, for Appellee. ON BRIEF: James S. Gilmore, III,
Attorney General, Pamela A. Sargent, Assistant Attorney General,
Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellant. Mary C. Bauer, ACLU OF VIR-
GINIA FOUNDATION, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

PER CURIAM:

On October 11, 1996, the federal district court for the Eastern Dis-
trict of Virginia (Spencer, J.), enjoined the Commonwealth of Vir-
ginia to allow death row inmate Joseph Roger O'Dell to have contact
visits with Lori Urs, a paralegal at a law firm representing O'Dell and
O'Dell's wife, in her capacity as a paralegal. The district court's
injunction was thereafter stayed pending the present appeal, in which
O'Dell argues that the Commonwealth of Virginia has denied him his
Sixth Amendment and Fourteenth Amendment right of access to
courts by denying him contact visits with his paralegal/wife, in her
capacity as his paralegal. On April 10, 1997, we heard oral argument
from attorneys for the Commonwealth and counsel for O'Dell on this
issue.

For the reasons recited in Judge Luttig's opinion of October 18,
1996, staying the district court's injunction in this matter pending
appeal, which opinion we hereby adopt as our own, we conclude that
O'Dell's Sixth Amendment and Fourteenth Amendment right of
access to the courts is not abridged by the Commonwealth's refusal
to allow him to have contact visits with his paralegal/wife, Lori Urs.

The judgment of the district court is reversed and the case is
remanded with instructions to enter judgment for appellant Nether-
land. A copy of Judge Luttig's order of October 18, 1996, is attached.

REVERSED

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FILED: October 18, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________________________________________________________

                                                               No. 96-7564
(CA-96-800-CV-3)
_________________________________________________________________

JOSEPH ROGER O'DELL, III,
Plaintiff-Appellee,

  versus

J. D. NETHERLAND, Sued in his official
capacity as Warden at Mecklenberg Correctional
Center,

Defendant-Appellant.

_________________________________________________________________

ORDER

On Friday, October 11, 1996, the district court for the Eastern Dis-
trict of Virginia entered a permanent injunction on behalf of inmate
Joseph Roger O'Dell against the Commonwealth of Virginia, enjoin-
ing the Commonwealth to allow "legal contact visits" between O'Dell
and Ms. Urs, a paralegal/investigator on O'Dell's legal defense team
and purportedly O'Dell's wife "under the laws of the Cherokee
nation."* According to the parties, a "contact visit" is one in which
Urs is permitted to meet with O'Dell alone, in a room without any
partitions separating the two from each other, and outside the immedi-
_________________________________________________________________
*The district court accepted, and for purposes of this application I do
as well, that the recent designation of Urs, a second-year law student at
the New England School of Law, as a member of the legal team is not,
as the district said, "a sham for the convenience of Ms. Urs and O'Dell."

                   3
ate presence of prison officials. A "contact visit," in other words, is
one in which the two persons are allowed physical contact, albeit
within sight of prison officials. "Non-contact visits," on the other
hand, as the name implies, are meetings in which the prisoner is
allowed to communicate with another individual, but is not allowed
physical contact with that person. "Non-contact visits" include face-
to-face meetings in which the parties speak through a glass or screen
partition, telephone conversations, and written communications by
mail or hand-delivery.

Under the rules imposed by the Commonwealth's prison authori-
ties, O'Dell is permitted the full range of "non-contact visits" with his
counsel and their assistants, in addition to the full range of "contact
visits" with his counsel and all of their assistants, except Urs. Thus,
O'Dell is allowed to meet face-to-face with any of his six attorneys
(four of whom live in Virginia) or paralegals -- including Urs -- and
discuss through a glass or screen partition any matter he wishes.
Additionally, he is allowed to discuss over the telephone any matter
with any of his attorneys or paralegals, including Urs. And he is per-
mitted any and all forms of written communications with any of his
attorneys or paralegals, including Urs. None of these "non-contact
visits" is currently monitored by prison officials. O'Dell, therefore,
enjoys complete confidentiality in these communications.

The only limitation on O'Dell's access to his counsel or their assis-
tants is that O'Dell is not permitted to meet face-to-face and in per-
son, unseparated by partition, with Urs, when she is acting in her
capacity as one of O'Dell's paralegals. (O'Dell is allowed periodic
spousal visits with his wife, in accordance with prison custom and
policy.). The prison's limitation on O'Dell's "contact visits" from Urs
-- a limitation that extends to the spouses of all death-row inmates
-- was imposed because, in the experienced judgment of the State's
prison authorities and administrators, Urs, as O'Dell's wife, repre-
sents a security risk to O'Dell, herself, and third persons as a conse-
quence of the circumstances in which O'Dell now finds himself.

Notwithstanding the array of contacts permitted O'Dell between
his attorneys, his paralegals, and even Urs, the district court ordered
the Commonwealth to allow O'Dell even the "legal contact visits"

                     4
with Urs that had been prohibited him in the interests of prison secur-
ity.

In anticipation of the first "legal contact visits" between Urs and
O'Dell pursuant to the district court's injunction, which presumably
occurred on Tuesday and Wednesday of this week, October 15-16, the
Commonwealth on Tuesday morning filed papers with me as a single
Circuit Judge pursuant to Fed. R. App. P. 8, applying for a stay of the
district court's injunction. Thereafter, I directed O'Dell to file a
responsive pleading and the Commonwealth to file a reply to O'Dell's
response. Having carefully considered the submissions of both parties
and the applicable authorities, I hereby grant the stay of injunction
requested by the Commonwealth.

In enjoining the Commonwealth to allow O'Dell "contact visits"
with Urs whenever "authorized by O'Dell's lawyers," the district
court reasoned that O'Dell was constitutionally entitled under the
Sixth Amendment to "contact visits" with a paralegal, and thus that
O'Dell was not only likely, but certain, to succeed on the merits of
his claimed right to such visits with Urs. The district court further rea-
soned that, in the absence of the injunction, O'Dell would suffer sub-
stantial and irreparable harm in the form of denied access to the
courts. The district court erred in both respects.

The district court cited no authority, and I am aware of none, hold-
ing that the Sixth Amendment provides O'Dell a right to a "contact
visit" with a member of his legal team -- attorney or paralegal. In the
only even tangentially relevant case cited in support of such a right,
Procunier v. Martinez, 416 U.S. 396, 419 (1974), the Supreme Court
invalidated, as violative of an inmate's right of access to the courts,
a prison regulation banning all interviews between inmates and para-
legals. Procunier, which has since been overruled in part, Thornburgh
v. Abbott, 490 U.S. 401, 414 (1989), cannot possibly be read so as to
afford O'Dell the constitutional right for which he argues. That case
cannot even be read to require "contact visits" from a paralegal, much
less "contact visits" from a particular paralegal, especially where, as
here, the State not only articulates a perfectly reasonable justification
for preventing visits by that individual, but also offers a panoply of
alternative means by which the prisoner may communicate with his

                     5
attorneys, other paralegals, and, indeed, even with the paralegal for
whom "contact visits" are disallowed.

Ultimately, a prisoner wishing to establish an unconstitutional bur-
den on his right of access to the courts must show"actual injury" to
"the capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts." Lewis v. Casey, 116 S.
Ct. 2174, 2182 (1996). Because avenues are fully open for O'Dell to
obtain the full legal assistance of his professional team of lawyers,
and even the aid of that team's assistants, including Urs herself,
O'Dell simply cannot make such a showing. Indeed, I can discern no
basis whatever for concluding that the prison's limitation on "contact
visits" from Urs hinders in any way O'Dell's communication with his
defense team or otherwise impairs his ability to access the courts for
available legal redress. O'Dell's only contention otherwise is that he
needs the "cloak of confidentiality" with respect to his visits with Urs
that comes with "contact visits," but not with"non-contact visits." As
noted, however, the State has represented -- and O'Dell does not
challenge -- that none of the variety of legal communications
between O'Dell and his attorneys, their paralegals, or, in particular,
Urs, is being monitored by State officials. Nor is there any reason in
the record to expect that they would be monitored.

For the same reasons that O'Dell cannot establish that his right of
access to the courts likely has been burdened, he fails to show that the
balance of harms favors the injunction entered by the district court.
Given the host of alternative means for O'Dell to communicate with
his counsel, their assistants and even Urs, O'Dell's cognizable Sixth
Amendment interest in "contact visits" with Urs is negligible. (Of
course, that interest is now even less substantial than it might other-
wise have been, because Urs has presumably already met with O'Dell
some twelve full hours on Tuesday and Wednesday of this week.). In
contrast, the State's interest in prison security and safety in general
is concededly substantial and continuing. The director of the Virginia
Department of Corrections testified before the district court that phys-
ical contact between a condemned man and a person who is emotion-
ally attached to him and desperately attempting to save his life creates
a significant danger to the safety of the staff and occupants of the
prison as well as to the prisoner himself. The director cited several
instances in which wives, girlfriends, or lawyers of death row inmates

                    6
have fallen in love with inmates and smuggled weapons or illegal nar-
cotics into the prison or otherwise attempted to help the prisoners
escape. The State's interest, indeed, is particularly compelling in this
case because Urs has previously violated the prison's security regula-
tions. As the district court was made aware, Urs has, in the past,
abused her position as legal assistant to O'Dell by violating prison
regulations in order to foster her personal relationship with O'Dell. In
1994, while working with Centurion Ministries, Urs was caught
attempting to circumvent prison rules by sending O'Dell love letters
disguised as legal communications. In fact, in one of those letters, in
a passage that as yet is not understood, Urs wrote:"I will one day
check the gun thing out but I am a little scared," and "[p]ut it on hold,
just for now -- ok baby?" In light of the State's significant interest
in the security of its prisons and Urs' previous disregard for prison
regulations promulgated to further that security, it cannot be gainsaid
that the State's interests outweigh O'Dell's negligible interest in "con-
tact visits" from Urs.

At bottom, the district court accorded little, if indeed any, defer-
ence to the prison warden's reasonable judgment that, in the interest
of prison security, O'Dell should not be allowed"contact visits" from
Urs. Essentially, the district court subjected the State's informed
security judgment to the very kind of "inflexible strict-scrutiny analy-
sis," which the Supreme Court has repeatedly held impermissibly
hamstrings prison administrators in their efforts"to anticipate security
problems and to adopt innovative solutions to the intractable prob-
lems of prison administration." Casey, 116 S. Ct. at 2185 (quoting
Jones v. North Carolina Labor Union, Inc. , 433 U.S. 119, 128
(1977)). As we have repeatedly held, on instruction from the Supreme
Court, it is not for the federal courts to so micromanage the Nation's
prisons. Taylor v. Freeman, 34 F.3d 266 (4th Cir. 1994).

Accordingly, the injunction entered by the district court is hereby
stayed pending appeal.

Entered at the direction of Judge Luttig.

          For the Court

            /s/ Patricia S. Connor

             Clerk

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