                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 92-2230 

                       WESTON J. STOW,

                    Plaintiff, Appellant,

                              v.

                   SUSAN GRIMALDI, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, U.S. District Judge]

                                         

                            Before

                     Breyer, Chief Judge,
                                        
              Torruella and Cyr, Circuit Judges.
                                               

                                         

Weston J. Stow on brief pro se.
              
Jeffrey  R. Howard,  Attorney General,  and William  C.  McCallum,
                                                                 
Assistant Attorney General, on brief for appellees.

                                         

                         May 27, 1993
                                         

          Per Curiam.   Plaintiff appeals from the  dismissal
                    

of his action as frivolous.  We affirm.

                              I.
                               

          Plaintiff, an inmate at New Hampshire State Prison,

filed a  civil rights action seeking declaratory, injunctive,

and  damages  relief  for  two  instances  when  he  was  not

permitted by prison regulations to send sealed letters to the
                                              

Liberty University School  of Lifelong  Learning in  postage-

prepaid envelopes supplied by  the university.  The envelopes

contained plaintiff's request to enroll in summer classes and

plaintiff's grades for the  previous semesters.  While prison

regulations allowed sealed letters  to be sent to any  of ten

listed  persons or entities (e.g., president, vice-president,
                                 

federal  or   state  courts)  --  all   other  outgoing  mail

presumably had  to be sent  in unsealed  envelopes for  ready

inspection --  schools and universities were  not included on

the privileged  list.1  Nevertheless,  plaintiff claimed that

                    

1.  According   to   plaintiff,  the   challenged  regulation
provided as follows:

     Privileged Correspondence

     1.   Correspondence  between a resident and a privileged
          correspondent  will  not  ordinarily be  inspected.
          However,  it may be  opened in the  presence of the
          resident  when considered  necessary to  insure the
          authenticity of the  correspondent or to check  for
          contraband.   In any  case, it  will not  be opened
          outside the  presence  of the  resident unless  the
          item  has  specifically  waived this  privilege  in
          writing.  Mail in privileged status must be clearly
          addressed  to or received from  one of the ten (10)

                             -2-

his mail should be considered privileged because it contained

plaintiff's   grades,  a  personal   matter.    After  prison

officials  refused   plaintiff's  request  and   required  an

unsealed   mailing,  plaintiff   filed  the   present  action

challenging the prison mail  policy and the prison officials'

actions  as  violative of  the  constitution  and the  Family

Educationaland Privacy Rights Act of 1974, 20 U.S.C.   1232g.

                    

          privileged classifications in this PPD.

     2.   The  following is  a complete  list of  agencies or
          individuals   classified   as  privileged.     Mail
          addressed  as  indicated  will not  be  opened  for
          inspection  except in  the resident's  presence and
          may be sealed before deposit in the mail collection
          boxes.   Addresses marked with  a *, do not require
          postage.

          a.  President of the United States, Washington, DC

          b.      Vice-President   of   the   United  States,
Washington,             DC

          c.  Members of Congress addressed to appropriate 
              office

          d.  The Attorney General of the United States and 
              regional offices of the Attorney General

          e.  Federal or State Courts*

          f.  The Governor and Council of the State of New 
              Hampshire, State House, Concord, NH 03301*

          g.  The Attorney General of the State of New     
              Hampshire,  State  House  Annex,   Concord,  NH
03301*

          h.  Commissioner of the Department of Corrections*

          i.  Members of the State Parole Board*

          k.  County Attorneys per warden

                             -3-

          Concluding that plaintiff had  no right to send his

college  transcripts in sealed  envelopes, a magistrate judge

recommended that  the complaint  be dismissed.   The district

court agreed, and plaintiff has now appealed.

                             II.
                               

          The     censorship2     of    outgoing     prisoner

correspondence "is  justified if  the following  criteria are

met":

          First,  the  regulation  or  practice  in
          question  must  further  an important  or
          substantial     governmental     interest
          unrelated    to   the    suppression   of
          expression.    Prison  officials may  not
          censor  inmate  correspondence simply  to
          eliminate   unflattering   or   unwelcome
          opinions    or    factually    inaccurate
          statements.   Rather, they must show that
          a regulation  authorizing mail censorship
          furthers  one or more  of the substantial
          governmental   interests   of   security,
          order, and rehabilitation.   Second,  the
          limitation  of  First Amendment  freedoms
          must  be no greater  than is necessary or
          essential  to  the   protection  of   the
          particular      governmental     interest
          involved.  Thus  a restriction on  inmate
          correspondence that furthers an important
          or   substantial    interest   of   penal
          administration   will   nevertheless   be
          invalid  if  its  sweep is  unnecessarily
          broad.   This does  not mean,  of course,
          that   prison   administrators   may   be
          required  to  show  with  certainty  that
          adverse consequences would flow  from the

                    

2.  We will  assume without  deciding that the  inspection of
                                                          
plaintiff's mail  constitutes censorship.   But see  Royse v.
                                                          
Superior  Court of the State of Washington, 779 F.2d 573 (9th
                                          
Cir.  1986)  (inspection  for  contraband  of  mail  sent  by
prisoners to  state court does not  constitute censorship and
does not violate the constitution).

                             -4-

          failure  to  censor a  particular letter.
          Some   latitude   in   anticipating   the
          probable consequences of allowing certain
          speech   in   a  prison   environment  is
          essential to  the proper discharge  of an
          administrator's duty.  But any regulation
          or   practice   that   restricts   inmate
          correspondence    must    be    generally
          necessary to protect one  or more of  the
          legitimate     governmental     interests
          identified above.

Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).  See also
                                                             

Thornburgh  v. Abbott,  490  U.S. 401,  413 (1989)  (Martinez
                                                             

standard  applies  when  assessing the  constitutionality  of

regulations    concerning   outgoing    correspondence,   but

regulation of  incoming mail  is subject to  more deferential

reasonableness standard).

          The  challenged New Hampshire State Prison practice

of requiring non-privileged outgoing mail to be submitted for

inspection  in  unsealed  envelopes satisfies  both  Martinez
                                                             

criteria.     First,  the   practice  furthers  an  important

governmental interest -- security.  As the  Supreme Court has

recognized,   ["p]erhaps   the   most  obvious   example   of

justifiable censorship  of prisoner mail would  be refusal to

send  . .  . letters  concerning  escape plans  or containing

other  information  concerning  proposed criminal  activity."

Procunier v.  Martinez, 416  U.S.  at 413.   Plaintiff  would
                      

argue  that his  mail, directed  to a  school in  an envelope

supplied by the school, presented no security problem because

escape  or criminal  activity plans  could not  fruitfully be

                             -5-

transmitted  in this manner.   Plaintiff is wrong.   Were the

institution  not a legitimate  one or were  the school's mail

room employee  in cahoots with  plaintiff, security  concerns

could well be implicated.

          Plaintiff  argues  that   inspection  of   outgoing

correspondence cannot  rationally be justified as  a security

measure given,  plaintiff says, that prison  officials do not

monitor  prisoners'  telephone  calls  or  conversations with

visitors,  means  by which  prisoners  could  just as  easily

communicate escape plans.   Plaintiff  cites to  a number  of

older cases  which employed  such reasoning in  striking down

outgoing mail inspection practices.   We, however, rejected a

similar argument in Feeley v. Sampson, 570 F.2d 364, 374 (1st
                                     

Cir.  1978).   There, the  district court  had reasoned  that

"because detainees' visits went unmonitored,  escape plans or

contraband  `drops'  could  be  plotted  regardless   of  any

surveillance   of   correspondence,"   and   concluded   that

inspection of  outgoing mail could therefore not be upheld on

security  grounds.  Id. at  374.  We  rejected that reasoning
                       

and concluded, in substance,  that unmonitored mail increased

prisoners' opportunities for plotting escape and consequently

surveillance was justified as a security measure.  We  adhere

to that position.

          The   second   Martinez   requirement,   that   the
                                 

limitation  be no greater than  necessary, is also  met.  The

                             -6-

limitation is fairly minimal -- plaintiff can correspond with

the school provided  he allows prison officials to  check the

correspondence  -- and  there is  no other  way to  determine

whether escape  plans or  other proscribable matter  is being

sent except  by looking  at the correspondence.   Plaintiff's

constitutional rights  were not violated.   See United States
                                                             

v.  Whalen, 940  F.2d  1027, 1035  (7th  Cir.) ("it  is  well
          

established that  prisons have sound reasons  for reading the

outgoing mail  of their inmates"),  cert. denied, 112  S. Ct.
                                                

403 (1991); Gaines  v. Lane,  790 F.2d 1299,  1304 (7th  Cir.
                           

1986)  (inspection of  non-privileged outgoing mail  does not

violate prisoners'  First Amendment rights); United States v.
                                                          

Kelton, 791 F.2d 101  (8th Cir.) (prisoner's Fourth Amendment
      

rights  not  violated  by prison  official's  inspection  and

copying of prisoner's outgoing  mail), cert. denied, 479 U.S.
                                                   

989 (1986).

          Nor  were  plaintiff's  rights  under   the  Family

Educational  and  Privacy  Rights  Act, 20  U.S.C.     1232g,

violated.  Nothing in  that Act requires prison  officials to

take plaintiff's word that the envelope contained transcripts

and accept the sealed mailing.

          Affirmed.
                  

                             -7-
