                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2009

Fontroy v. Beard
Precedential or Non-Precedential: Precedential

Docket No. 07-2446




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PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 07-2446
                    _____________

          DERRICK DALE FONTROY, I;
          THEODORE B. SAVAGE, J.D.;
        AARON CHRISTOPHER WHEELER;

                               v.

               JEFFREY A. BEARD;
              DAVID DIGUGLIELMO;
                  KIM ULISNY,

                          Appellants.


   On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
             District Court No. 02-cv-02949
   District Judge: The Honorable Timothy J. Savage


   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                  January 27, 2009


                           1
   Before: SCIRICA, Chief Judge, AMBRO, and SMITH,
                     Circuit Judges

                   (Filed: March 10, 2009 )

Claudia M. Tesoro
Office of the Attorney General
21 South 12th Street
Third Floor
Philadelphia, PA 19107
       Counsel for Appellants Jeffrey A. Beard, David
       DiGuglielmo, and Kim Ulisny

Derrick Dale Fontroy
Theodore B. Savage
Aaron Christopher Wheeler
      Proceeding Pro Se




                   AMENDED OPINION




SMITH, Circuit Judge.

       In 2002, the Pennsylvania Department of Corrections
(“DOC”) implemented a new prison mail policy. This policy
required attorneys and courts to affix “Control Numbers” to mail
sent to inmates before those communications would be

                               2
separated from regular mail, and opened and inspected for the
first time in the addressee inmate’s presence. Appellees Derrick
Dale Fontroy, Theodore B. Savage, and Aaron Christopher
Wheeler (the “Inmates”) successfully challenged the
constitutionality of this policy on First Amendment grounds in
the District Court. Officials from the DOC have appealed. We
are mindful that important First Amendment interests are at
stake. But because we conclude that the new policy is
“reasonably related to legitimate penological interests,” Turner
v. Safley, 482 U.S. 78, 89 (1987), it passes constitutional muster,
and we will reverse the District Court.

                                I.

       To ensure that inmates cannot obtain contraband through
the mail system, the DOC has policies for opening and
inspecting incoming prison mail. The DOC receives mail
addressed to inmates in mailrooms, which are located outside
the perimeter of each corrections facility. There, the mail is x-
rayed and sorted. Mail inspectors at these off-site facilities then
open and inspect regular mail for contraband. Legal mail,1
however, must be treated differently. Although the DOC
prohibits mail inspectors from reading mail addressed to inmates
except in special circumstances, constitutional obligations
require the DOC to take additional measures to ensure that legal


       1
        For the purposes of this opinion, we use the term “legal
mail” to refer to incoming attorney and court mail, collectively.

                                3
mail remains unread. See Jones v. Brown, 461 F.3d 353, 355
(3d Cir. 2006) (holding that “state prisoners have an interest
protected by the First Amendment in being present when their
incoming legal mail is opened.”); see also Bieregu v. Reno, 59
F.3d 1445, 1452 (3d Cir. 1995) (“[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.” (emphasis added)). A policy that allows
the opening of legal mail without the physical presence of
addressee inmates “deprives the expression of confidentiality
and chills the inmates’ protected expression, regardless of the
state’s good-faith protestations that it does not, and will not,
read the content of the communications.” Jones, 461 F.3d at
359. As a result, the DOC tries to separate legal mail from
regular mail so that legal mail can be opened and inspected for
the first time in the addressee inmate’s presence. How the DOC
distinguishes between legal and regular mail is at the heart of
this dispute.

      Under the DOC mail policy in place from the 1970s until
2002, DOC staff looked at the return address alone to determine
whether the sender was an attorney or court. If the return
address indicated that the mail originated from one of those
sources, the mail was classified as a “Privileged
Correspondence.” 2    Privileged Correspondence was then


       2
       The designation “Privileged Correspondence” does not
necessarily equate with legal privilege. The DOC’s mail

                               4
separated from the regular mail, sent to the corrections facility,
and opened and inspected for the first time by on-site Housing
Unit Officers in the inmates’ presence.

        In 2002, the DOC decided to change its policies and
procedures for handling and inspecting legal mail sent to
inmates. Appellant Jeffrey Beard, the Secretary of the DOC,
explained during a deposition that the DOC had “ongoing
concerns about the privileged mail that was coming to our
institutions, because on a not infrequent basis, and in virtually
all of our institutions at one time or another, we have come
across attempts by inmates to smuggle various items in what
was considered to be privileged mail.” Two reports prepared in
1999 evidenced those ongoing concerns. A November 1999
report analyzing the high-profile escape of an inmate (the
“Escape Report”) suggested that the hacksaw blade and security
screwdriver the inmate used to escape were obtained through
mail treated as Privileged Correspondence. Additionally, a
September 1999 report entitled “Privileged Correspondence
Inspection and Contraband” (the “September Report”) contained
a “random sampling of incidents involving legal mail abuse.”
The September Report advised the DOC to revise the existing
mail inspection policies because 1) contraband contained in


policies define Privileged Correspondence as correspondence
that meets specified conditions, and it has been limited to
communications from attorneys, courts, and certain elected and
appointed officials.

                                5
Privileged Correspondence would pass through corrections
facility gates before it could be discovered; and 2) the inspection
of Privileged Correspondence was less effective because
Housing Unit Officers had less experience and time to devote to
the task than the professional Corrections Mail Inspectors.

        After negotiating proposed revisions with the American
Civil Liberties Union, Pennsylvania Institutional Law Project,
and the Defender Association of Philadelphia, the DOC issued
a new mail policy on September 1, 2002, effective September
30, 2002.        Under the new policy, incoming attorney
communications could be treated as Privileged Correspondence
only if they met one of two conditions: 1) the attorneys hand-
delivered the sealed communications to specified DOC
facilities; or 2) the attorneys obtained a Control Number from
the DOC and placed the Control Number on each envelope
mailed to an inmate. Attorneys could obtain a Control Number
by faxing a letter request containing the attorney’s name,
address, telephone and fax numbers, state attorney identification
number, and a written verification subject to the penalties of 18
Pa. Cons. Stat. § 4904 3 that all mail sent to inmates using the
Control Number would contain “only essential confidential,
attorney-client communication and [would] contain no
contraband.” The DOC must then provide the attorney with a


       3
        18 Pa. Cons. Stat. § 4904 describes certain
misdemeanors associated with making unsworn false statements
to authorities.

                                6
Control Number one business day after receiving a request.4 A
subsequent revision that was issued on May 20, 2004, effective
July 15, 2004, made two relevant changes: the revision 1)
allowed courts to obtain Control Numbers in the same manner
as attorneys;5 and 2) required all incoming mail that did not bear
a Control Number but still appeared to be from a court to be
hand-delivered after it was opened and inspected like other
regular mail.

       On May 16, 2002, the Inmates filed a pro se complaint
against Appellants Beard, David DiGuglielmo, and Kim Ulisny
(the “DOC Officials”).6 An Amended Complaint was filed on




       4
       The American Civil Liberties Union Foundation of
Pennsylvania approved of the DOC’s plan to require Control
Numbers on attorney mail in a letter dated June 25, 2002.
       5
        A court seeking a Control Number faxes a letter request
on official letterhead, signed by any judge or chief non-judicial
officer of the court.
       6
       Instead of DiGuglielmo, the complaint originally named
Donald Vaughn as a defendant. At the time, Vaughn was the
Superintendent at the DOC facility where the Inmates were
incarcerated.      DiGuglielmo, the facility’s current
Superintendent, replaced Vaughn as a party to this action on
April 12, 2007.

                                7
January 29, 2003, followed by a blizzard of other submissions.7
The Inmates alleged that the DOC’s new mail policy
unconstitutionally burdened their First Amendment rights. They
claimed that attorneys and courts had not obtained Control
Numbers, despite repeated requests, and as a result Corrections
Mail Inspectors were opening and inspecting legitimate legal
mail outside of the Inmates’ presence. The Inmates sought both
damages and injunctive relief.

        Both parties filed motions for summary judgment.
Fontroy v. Beard, 485 F. Supp. 2d 592, 593 (E.D. Pa. 2007).8
On May 3, 2007, the District Court granted the Inmates’ motion
for summary judgment with respect to their request to enjoin the
new mail policy’s implementation, and denied the DOC
Officials’ corresponding cross-motion for summary judgment on
that issue.9 Id. at 601. The District Court determined that the


       7
       The able District Judge patiently managed this case,
which now contains 350 docket entries.
       8
       The DOC Officials filed a motion to dismiss the
Amended Complaint on February 14, 2003. The Inmates then
filed a motion for summary judgment on June 18, 2003.
Subsequently, the District Court construed the DOC Officials’
motion to dismiss the Amended Complaint as a cross-motion for
summary judgment. Fontroy, 485 F. Supp. 2d at 593.
       9
        The District Court also held that the DOC Officials were
entitled to qualified immunity and that the DOC’s decision to

                               8
DOC’s new mail policy10 unconstitutionally infringed on the
Inmates’ First Amendment rights because there was no
“reasonable connection between the asserted legitimate
penological interest and the mail regulation” as required by
Turner v. Safley. Id. at 592–93. The Court believed that “[t]he
connection between the policy change and the rationale for it
[was] tenuous and remote,” and characterized the changes as “an
overreaction to a single escape incident and a few isolated
violations of the contraband policy involving legal mail that may
or may not have occurred.” Id. at 599. Accordingly, the Court
held that the new mail policy failed the first part of Turner’s
two-step test: there was no rational relationship between the
mail policy and the legitimate penological interest in prison
safety and security. Id. In the alternative, the Court held that
the new policy did not satisfy Turner’s second step, which is
outlined below, and therefore would not have passed
constitutional muster even if a rational connection had been
established. Id.

       After the District Court denied their motion to alter the



stop keeping a mail log for court mail was constitutional.
Fontroy, 485 F. Supp. 2d at 600–01. These determinations have
not been raised on appeal.
       10
        The Court addressed the most current DOC mail policy,
which included the changes made in 2004 regarding the
treatment of court mail. Fontroy,, 485 F. Supp. 2d at 593 n.1.

                               9
judgment, the DOC Officials filed a timely appeal challenging
both the District Court’s granting of the Inmates’ motion for
summary judgment and its denial of the DOC Officials’ cross-
motion for summary judgment.

                               II.

       The Inmates’ underlying suit is actionable under 42
U.S.C. § 1983. Therefore, the District Court had jurisdiction
pursuant to 28 U.S.C. § 1331, and we have jurisdiction under 28
U.S.C. § 1291. Our review of the District Court’s summary
judgment decisions is plenary, but we must view the facts in the
light most favorable to the non-moving party. Nasir v. Morgan,
350 F.3d 366, 368 (3d Cir. 2003).

                               III.

       We first address the District Court’s grant of the Inmates’
motion for summary judgment. The DOC Officials concede that
the DOC’s new mail policy impinges on the Inmates’ First
Amendment rights because at least some legal mail is opened
and inspected outside of the Inmates’ presence. See Jones, 461
F.3d at 359 (reaffirming that a policy “of opening legal mail
outside the presence of the addressee inmate interferes with
protected comm unications, strips tho se p rotec ted
communications of their confidentiality, and accordingly
impinges upon the inmate’s right to freedom of speech”). The
DOC Officials point out, however, that the policy can still be

                               10
constitutional under Turner v. Safley “if it is reasonably related
to legitimate penological interests.” Turner, 482 U.S. at 89.

       “Under the teachings of Turner, there are two steps to
take in determining whether a prison regulation is ‘reasonably
related to legitimate penological interests.’” Jones, 461 F.3d at
360 (quoting Turner, 482 U.S. at 89). First, we must determine
“whether there is a valid, rational connection between the prison
regulation and the legitimate interest put forth to justify it.”
Monroe v. Beard, 536 F.3d 198, 207 (3d Cir. 2008) (internal
quotations and citation omitted). We afford “substantial
deference” to the DOC’s professional judgment, but the DOC
Officials’ evidence “must amount to more than a conclusory
assertion.” Id. (internal quotations and citation omitted).
Although the Inmates bear the ultimate burden of showing that
the DOC’s new mail policy is unconstitutional, it is the DOC
Officials’ burden to demonstrate that a rational connection exists
between the policy and a legitimate penological interest. Id.

        If this rational connection exists, we then consider three
other factors in a second-step analysis: 1) whether inmates have
an alternative means of exercising the right; 2) the burden on
prison resources that would be imposed by accommodating the
right; and 3) whether there are alternatives to the regulation that
fully accommodate the inmate’s rights at de minimis cost to
valid penological objectives. Id. We do not, however, require
prisons to use the least restrictive means possible to further
legitimate penological interests. Id.

                                11
                               A.

       Under Turner’s first step, we must determine whether the
record supports a rational connection between improving the
means of verifying the source of legal mail through the use of
Control Numbers and the safety and security problems posed by
inmates using the legal mail system to smuggle contraband.

        We conclude that the DOC Officials have established the
necessary rational connection here. First, the record provides
ample support for the DOC’s belief that its old legal mail policy
was being abused. Beard testified at his deposition that “over
the years we have had ongoing concerns about the privileged
mail that was coming into our institutions.” Ulisny, a mailroom
supervisor with twenty-seven years of mailroom experience,
testified at her deposition that she encountered instances where
mail bearing return addresses from attorneys and courts
contained contraband. The Escape Report stated that there was
“[s]ubstantial evidence show[ing] that [an escaped inmate] was
able to introduce contraband in the institution through ‘legal
mail.’” This included the materials suspected to have aided in
the inmate’s escape. The September Report included a random
sample of about fifteen instances between 1986 to 1999 where
the DOC recovered contraband from mail that appeared from its
return address to be legal mail.

      Second, the record shows that some of these abuses of
the DOC’s old mail policy involved the falsification of return

                               12
addresses in order to obtain treatment as Privileged
Correspondence. Ulisny testified that she recalled one instance
where contraband was discovered in an envelope fraudulently
bearing an attorney’s return address. The September Report’s
random sampling of legal mail abuses included at least two
instances that involved the use of a fake return address from an
attorney. Indeed, the Escape Report specifically pointed out that
under the DOC’s old mail policy, it was “difficult to confirm
whether the mail was actually sent by an attorney, since legal
envelopes have been stolen and misused by inmates and/or their
associates.”

       Third, evidence suggests that prison security and safety
is enhanced when off-site Corrections Mail Inspectors inspect
more mail, and on-site Housing Unit Officers inspect less. The
September Report identified two reasons for this effect: 1) off-
site inspection kept contraband contained in mail from
physically entering the corrections facility; and 2) the use of
professional Corrections Mail Inspectors increased the
likelihood that contraband would be discovered. The Escape
Report echoed these findings. Accordingly, reducing the
amount of fake legal mail erroneously treated as Privileged
Correspondence would enhance prison security and safety.

       For these reasons, we disagree with the District Court
that “[t]he connection between the policy change and the
rationale for it is tenuous and remote.” Fontroy, 485 F. Supp.
2d at 599. Most clearly, the record undermines the District

                               13
Court’s determination that “[t]he concerns articulated now by
the DOC were not the reasons given for the policy change at the
time,” and “[t]he only rationale for the revision then was the
prevention of escape.” Id. at 598. To the contrary, the
September Report’s random sampling of instances of legal mail
abuse, the Escape Report’s specific reference to problems
distinguishing between fake and legitimate legal mail, and
Ulisny’s testimony about legal mail abuses bolster Beard’s
testimony that the DOC had ongoing concerns about weaknesses
in its legal mail system. Although the inmate’s escape may have
prompted the DOC to scrutinize its mail policies across penal
institutions, the DOC certainly had evidence of ongoing and
systematic abuses of the legal mail system, including evidence
of the use of fake attorney return addresses. This shows that
much more than just the prevention of escape motivated the
DOC’s new mail policy.

       Any deficiencies in the Escape Report and the September
Report that the District Court relied upon do not suggest
otherwise. Although the Escape Report did not conclusively
determine that the inmate’s escape tools were smuggled into the
prison through legal mail, this does not amount to a “fail[ure] to
produce any evidence, let alone substantial evidence, linking the
inmate’s escape tools to legal mail.” Fontroy, 485 F. Supp. 2d
at 596. The Escape Report noted that, in 1998, the escaped
inmate “was issued a misconduct for the possession of
implements of escape and possession of a controlled substance,
when marijuana and a security screwdriver tip were found in the

                               14
binding of a legal brief.” Also, the Escape Report’s conclusion
that “[s]ubstantial evidence shows that [the escaped inmate] was
able to introduce contraband into the institution through ‘legal
mail’” must be taken as true in deciding whether to grant the
Inmates’ motion for summary judgment. See Nasir, 350 F.3d at
368.

       More importantly, the September Report outlined much
more than only “a few isolated violations” of the DOC’s old
legal mail policy. Fontroy, 485 F. Supp. 2d at 599. As
explained in the Report’s preface, the instances of mail abuse
mentioned in the Report are merely a “random sampling of
incidents involving legal mail abuse.” (Emphasis added.)
According to the Report, the random sampling “illustrate[s] that
[legal mail abuse] is an ongoing problem that is not going
away.” Therefore, the Report is evidence of larger systemic
problems with the DOC’s old mail policy.

        Additionally, we cannot agree with the distinction that
the District Court drew between “harmless” and “dangerous”
contraband. Id. at 597. There is no meaningful difference.
Even if some pieces of contraband may be less dangerous than
others, an inmate’s possession of any items that the DOC has
classified as contraband would pose some risk to prison safety
and security. At a minimum, it flouts prison rules and creates
inequality among prisoners. This chips away at the DOC’s
ability to maintain safe and orderly penal institutions.



                              15
        We admit that there is much less evidence linking
falsified court mail, as opposed to fake attorney mail, with
attempts to smuggle contraband. See Fontroy, 485 F. Supp. 2d
at 599 (noting the “scant evidence of demonstrable safety and
security threats associated with court mail”). This is not enough,
however, to persuade us that the DOC’s new policy is
unconstitutional. If court mail policies did not change along
with attorney mail policies, it is obvious that the abuse of the
legal mail system could continue with ease: to circumvent the
new attorney mail policy, individuals could simply forge a
court’s return address on the envelope instead of an attorney’s.
This is a sufficient reason to modify court mail policies even
absent evidence of actual abuse. See Jones, 461 F.3d at 361
(“[S]atisfying [the rational connection burden] may or may not
require evidence; where the connection is obvious, common
sense may suffice . . . .”).

       We believe that the District Court erred in downplaying
the implications of changing the location in which certain mail
is opened and inspected for the first time. See Fontroy, 485 F.
Supp. 2d at 598 (“All legal and court mail, with or without a
control number, is still opened and inspected by the staff. If
there is contraband, it will be discovered. The difference is
where . . . .”). Here, as noted above, the September Report and
the Escape Report pointed out that increased off-site inspection
enhances security and safety by preventing contraband from
entering the prison in the first instance, and by increasing the
likelihood that the contraband will be discovered through the use

                               16
of professional Corrections Mail Inspectors with more time and
experience. Additionally, unlike the District Court, we are less
certain that “[i]f there is contraband, it will be discovered.” In
this case, which staff member conducts the inspection—a
Corrections Mail Inspector whose only responsibility is
inspecting mail, or a Housing Unit Officer with various
cellblock responsibilities—can affect the probabilities of
discovering contraband. As a result, changing the location of
mail inspection from within the cellblock to outside the facility
perimeter can yield clear safety and security benefits.

        Since sufficient evidence demonstrates a rational
connection between the DOC’s new mail policy and its interest
in prison security and safety, we believe that the policy passes
the first step of the Turner analysis

                               B.

       Moving to Turner’s second step, we believe that all three
factors counsel in favor of holding the DOC’s new mail policy
constitutional.

       First, “[w]ere it shown that no alternative means of
[exercising the circumscribed right] existed . . . it would be
some evidence that the regulations were unreasonable.”
Overton v. Bazzetta, 539 U.S. 126, 135 (2003). Here, however,
the Inmates have alternative means of ensuring that their First
Amendment rights are not infringed upon. Control Numbers are

                               17
easily obtained upon request and, when used, allow the Inmates
to communicate with attorneys and courts just as they did under
the DOC’s old mail policy. In addition, the DOC treats hand-
delivered court and attorney correspondence as Privileged
Correspondence even without a Control Number, and attorneys
can communicate with inmates by phone or in-person.

        Like the District Court and the Inmates, we are concerned
that the Inmates cannot force attorneys and courts to obtain and
use Control Numbers. See Fontroy, 485 F. Supp. 2d at
599–600. Indeed, some attorneys and all courts have refused the
Inmates’ repeated requests to do so. Additionally, as the District
Court correctly noted, “[t]he current procedure as applied to
court mail is even more onerous than as applied to legal mail.
The inmate has no relationship with the sender and cannot
require the sender to apply for and use a control number. Nor
can the DOC or a court.” Fontroy, 485 F. Supp. 2d at 599.
Finally, unlike most attorney communications, most incoming
court correspondence either cannot or will not be made by phone
or in person.

        We acknowledge that these problems make the DOC’s
new mail policy a less-than-ideal means of accommodating the
Inmates’ important First Amendment rights. Nonetheless, we
cannot overlook that alternatives are, in fact, available under the
DOC’s new policy. This is all Turner requires. See Overton,
539 U.S. at 135 (“Alternatives to [the regulation] need not be
ideal, . . . ; they need only be available.”). Accordingly, the

                                18
availability of alternatives favors holding the DOC’s new mail
policy constitutional.

       Second, in assessing the burden on prison resources that
accommodating the Inmates’ First Amendment rights would
have, we “should be particularly deferential to the informed
discretion of corrections officials” where an accommodation
“will have a significant ‘ripple effect’ on fellow inmates or on
prison staff.” Turner, 482 U.S. at 90. Here, such deference is
warranted. We reject the Inmates’ argument that a return to the
old DOC mail policy places no burden on prison resources
simply because the old regulations have been in place since the
1970s.11 We also disagree with the District Court’s reasoning


       11
         The Inmates argue that Bieregu compels a contrary
conclusion. See 59 F.3d at 1458 (“To accommodate plaintiff’s
rights to free speech and court access 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.”). In Bieregu, however,
the plaintiff “d[id] not attack the general [prison] scheme for
handling mail . . . .” Id. at 1449. Instead, the plaintiff
challenged the prison’s pattern and practice of opening his court
mail outside of his presence. Id. Therefore, we distinguish
Bieregu on its facts. While conforming prison officials’
treatment of a single prisoner’s mail to an existing policy
applicable to the rest of the prison population may pose no
burden on prison resources, it is an entirely different problem
with substantially different consequences when the prisoner

                               19
that the low daily percentage volume of legal mail, requirements
for hand delivery of court mail and legal mail to inmates not
housed in general population, and the extra step of checking
mail for a Control Number, mean that reverting to the old policy
would place “no real burden upon the prison staff . . . .”
Fontroy, 485 F. Supp. 2d at 600. Both the Inmates and the
District Court have ignored the factors that prompted the change
in the first place. The new policy has reduced the amount of
mail warranting treatment as Privileged Correspondence, which
means that Housing Unit Officers spend less time inspecting
mail and more time addressing other prison safety and security
issues. The new policy also makes smuggling contraband into
the prison more difficult. These improvements suggest that
returning to the old policy has the potential of causing a “ripple
effect” on other inmates and prison staff. Accordingly, we
should be deferential to the DOC’s informed discretion here.

        Third, “if an inmate claimant can point to an alternative
that fully accommodates the prisoner’s rights at de minimis cost
to valid penological interests, a court may consider that as
evidence that the regulation does not satisfy the reasonable
relationship standard.” Turner, 482 U.S. at 91. The Inmates
claim that the DOC’s old mail policy is such an alternative.
Again, the Inmates have ignored the evidence offered to justify
the new mail policy in the first place—the instances of legal
mail abuse outlined in the Escape Report, September Report,


requests a change to the policy itself.

                               20
and Ulisny’s and Beard’s testimony. As discussed above, this
demonstrates weaknesses in the old legal mail system and the
deleterious effects of these weaknesses on prison safety and
security. The DOC’s revised policy was designed to address one
of these weaknesses: the difficulties in ensuring that only
legitimate legal mail is treated as Privileged Correspondence.
Accordingly, the Inmates’ proposed alternative cannot be
achieved at a de minimis cost to valid penological interests.

        Finally, the Inmates point us to the mail policy employed
by the Federal Bureau of Prisons (“BOP”). Under the BOP’s
policy, incoming mail is opened and inspected for the first time
in the presence of an inmate “if the sender is adequately
identified on the envelope, and the front of the envelope is
marked ‘Special Mail—Open only in the presence of the
inmate’.” 28 C.F.R. § 540.18. The Inmates argue that the
BOP’s less burdensome requirements should persuade us that
the DOC’s revised mail policy is unconstitutional. It does not.
The constitutionality of the BOP’s and DOC’s respective mail
policies should be analyzed on their own terms. Assuming that
the BOP’s policy is constitutional does not necessarily mean that
the DOC’s more demanding policy is not. Absent any authority
suggesting that the BOP’s policy is at the outer limits of
constitutionality, we decline to afford the BOP’s policy any
persuasive weight in this case.

      In sum, all three factors in the second step of our
Turner analysis weigh in favor of upholding the DOC’s new

                               21
mail policy. Since the DOC’s new mail policy passes Turner’s
two-step test, we will reverse the District Court’s decision to
grant the Inmates’ motion for summary judgment.

                              IV.

       We next address the DOC Officials’ claim that the
District Court should have granted their cross-motion for
summary judgment. The legal analysis we employ here is
identical to the one we used to evaluate the District Court’s
decision to grant the Inmates’ motion for summary judgment.
Factually, however, we must view the record in the light most
favorable to the Inmates. Nasir, 350 F.3d at 368. Additionally,
summary judgment is inappropriate if the Inmates have raised a
genuine issue of material fact. See Fed. R. Civ. P. 56(c); Emory
v. AstraZeneca Pharms. LP, 401 F.3d 174, 179 (3d Cir. 2005).

        Viewing the record in the light most favorable to the
Inmates, we see some evidence to support a conclusion that the
Corrections Mail Inspectors are no more skilled at discovering
contraband than the Housing Unit Officers are. Ulisny testified
at her deposition that she did not know of “any type of
contraband that can be detected in court mail, when its [sic]
opened outside of the inmate’s presence, that couldn’t be
detected if it was opened in the inmate’s presence . . . .”
Additionally, John Murray, a corrections officer with 25 years
of experience, testified at his deposition that he was generally
able to identify contraband while inspecting mail, even without

                              22
special training for inspecting mail in front of an inmate.

        Although this evidence casts doubt on the revised DOC
mail policy’s actual ability to enhance prison security and safety,
it does not undermine the DOC Officials’ cross-motion for
summary judgment. Since the DOC Officials have an
undisputed legitimate governmental interest in maintaining
prison safety and security, all they need to do to prevail is
demonstrate “that the policy drafters ‘could rationally have seen
a connection’ between the policy and [the penological interest].”
Jones, 461 F.3d at 360. This burden is “slight.” Id. Here, as
explained above, the analysis and conclusions contained in the
Escape Report and September Report are enough to meet this
burden. Indeed, even if the Corrections Mail Inspectors are no
more skilled at discovering contraband than the Housing Unit
Officers are, the two Reports suggest other ways in which
improving legal mail verification techniques could enhance
prison safety and security: reducing the amount of fake legal
mail treated as Privileged Correspondence would 1) decrease the
amount of time that the on-site Officers have to spend on mail
inspection; and 2) decrease the amount of contraband that makes
its way past prison gates in the first place.

       The Inmates also have offered nothing to contradict the
factual assertions contained in the Escape Report and September
Report. They have only recharacterized the reports as
inconclusive or representative of only a few isolated incidents.
This is insufficient to raise the genuine issue of fact necessary

                                23
to survive summary judgment. Likewise, the Inmates have
raised no factual issues that would change the Turner step two
analysis that we conducted above. Therefore, we hold that the
DOC Officials’ cross-motion for summary judgment should
have been granted.

                               V.

        Although application of Turner’s two-step test is
sufficient by itself to satisfy us that the DOC’s new mail policy
is constitutional, we find additional support for our holding in
language of the Supreme Court in Wolff v. McDonnell, 418 U.S.
539 (1974). In Wolff, the Court addressed the issue of “whether
letters determined or found to be from attorneys may be opened
by prison authorities in the presence of the inmate or whether
such mail must be delivered unopened if normal detection
techniques fail to indicate contraband.” 418 U.S. at 575. As
part of its decision, the Court addressed the Court of Appeals’
statement that “[i]f there was doubt that a letter was actually
from an attorney, ‘a simple telephone call should be enough to
settle the matter.’” Id. at 575 (citation omitted). In the Court’s
view, this “impl[ied] that officials might have to go beyond the
face of the envelope, and the ‘privileged’ label, in ascertaining
what kind of communication was involved.” Id.

        The Court rejected the Court of Appeals’ approach as
unworkable. Id. at 576. The Court pointed out that “[i]f prison
officials had to check in each case whether a communication

                               24
was from an attorney before opening it for inspection, a near
impossible task of administration would be imposed.” Id. The
Court, however, did approve of some other methods for
determining whether certain mail was actually from an
attorney—methods that extend beyond the face of the envelope:

       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. at 576–77. Here, the Control Numbers that the DOC
requires act as both a “special mark” identifying
communications as originating from an attorney and also as a
means of identifying the attorney to prison officials in order to
“assure that the letters marked privileged are actually from
members of the bar.” Id. As a result, Wolff weighs in favor of
upholding the constitutionality of the DOC’s new mail policy.

                              VI.

       Compared with the old mail policy, the DOC’s new
policy does place an additional burden on the Inmates’ First

                               25
Amendment rights. Upon their incarceration, however, the
Inmates “necessarily sacrifice[d] many of the constitutional
rights available to non-incarcerated citizens.” Jones, 461 F.3d
at 360. Therefore, to persuade us that the DOC’s new mail
policy is constitutional, the DOC Officials need only show that
it is “reasonably related to legitimate penological concerns.”
Turner, 482 U.S. at 89. Here, they have done so, and we will
reverse.




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