                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 2 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 BILLY BROWN,

               Plaintiff - Appellant,                   No. 01-2199
          v.                                 (D.C. No. CIV-00-1488-LH/LFG)
 JOE WILLIAMS, Warden, Lea County                    (D. New Mexico)
 Correctional Facility; and SARA
 JOHNSON, Correctional Officer, Lea
 County Correctional Facility,

               Defendants - Appellees.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered

submitted without oral argument.



      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Billy Brown, a state prisoner proceeding pro se, brought this action in

forma pauperis under 42 U.S.C. § 1983 alleging constitutional violations from the

conduct of prison officials with respect to Mr. Brown’s mail. In his original

complaint, Mr. Brown contended that on August 13 and on August 28, 2000,

prison officials mishandled correspondence with his attorney (the “legal

correspondence”). In his amended complaint, Mr. Brown alleged that prison

officials opened and reviewed a privileged letter from a radio station addressed to

him on November 16, 2000 and also unlawfully intercepted a outgoing letter to

the same radio station (the “media correspondence”). The district court sua

sponte dismissed, with prejudice, Mr. Brown’s claims regarding the media

correspondence, see 28 U.S.C. § 1915(e)(2), but did not address the allegations

concerning the legal correspondence.   Mr. Brown appeals this decision and seeks

leave to proceed in forma pauperis. For the reasons stated below we affirm the

district court’s dismissal and deny Mr. Brown’s request to proceed in forma

pauperis.

                                   I. DISCUSSION

      A. Legal Correspondence

      In his original complaint, Mr Brown contended that (1) on August 13, 2000

prison officials intercepted a package from his lawyer; and (2) that on August 28,

2000, prison officials mishandled, opened, withheld and altered correspondence


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from his attorney. He also contends that he sought administrative relief on these

claims. Mr. Brown’s attorney supplies an affidavit stating that he sent his client a

copy of a petition for review of the denial of post-conviction relief in Oregon.

Mr. Brown’s counsel also filed the petition with the Oregon Supreme Court. Mr.

Brown’s attorney learned a month later that his client never received the

correspondence.

       The Defendants suggest that we need not consider the allegations regarding

tampering with legal correspondence, as they were part of the initial complaint

only, and Mr. Brown failed to reallege them in the amended complaint.          See Fed.

R. Civ. P. 10(c). We are mindful of our duty to liberally construe pleadings of

pro se litigants.   See Meade v. Grubbs , 841 F.2d 1512, 1526 (10th Cir. 1988). At

the same time, we acknowledge that such litigants must adhere to the same rules

of procedure as other litigants.   See Green v. Dorrell , 969 F.2d 915, 917 (10th

Cir. 1992). Also, we need not manufacture issues for pro se parties.     See National

Commodity and Barter Ass’n v. Gibbs      , 886 F.2d 1240, 1244 (10th Cir. 1989).

Nevertheless, because Mr. Brown’s amended complaint clearly expresses the

intention to “add[] a claim,” Rec. doc. 9, at 1, we shall address all of his

contentions.

       The Defendants note that as to the August 13, 2000 package that was

apparently lost, there was no deprivation of constitutional rights. They assert that


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because his attorney filed the document in Oregon state court, Mr. Brown cannot

claim denial of access to the courts.   See Lewis v. Casey , 518 U.S. 343, 350-51

(1996) (noting that inmates have a right to receive legal advice from other

inmates only when it is a necessary “means for ensuring a ‘reasonably adequate

opportunity to present claimed violations of fundamental constitutional rights to

the courts.’”) (quoting Bounds v. Smith , 430 U.S. 817, 825 (1977)). Similarly,

Defendants claim there is no First Amendment violation because there is no

evidence of improper motive.

       Regarding the August 28, 2000 package, Defendants admit to opening this

package in Mr. Brown’s presence. The package, however, was not marked as

legal mail and had no return address on the outside of the box to suggest the

return address.

       We review de novo the district court’s decision to dismiss the complaint

under § 1915(e)(2) , taking the allegations of the complaint as true. See Curley v.

Perry, 246 F.3d 1278, 1281 (10th Cir. 2001). There is no evidence that the

Defendants caused any interference with either the August 13 or the August 28,

2000 package. The Oregon court received the petition, so the loss of the August

13 package did not constitute interference with Mr. Brown’s access to the courts.

Likewise, there is no evidence of improper motive, so Mr. Brown cannot assert a




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First Amendment violation. The district court properly dismissed Mr. Brown’s

claims with respect to the August 13 package.

       Additionally we note that Mr. Brown ultimately received the August 28,

2000 package. We agree with the Defendants that the August 28, 2000 incident

was “an isolated incident, without any evidence of improper motive or resulting

interference with [Mr. Brown’s] right to counsel or to access to the courts.”

Smith v. Maschner , 899 F.2d 940, 944 (10th Cir. 1990). In addition, prison

officials may open an inmate’s incoming legal mail to search for contraband in

the presence of the inmate.    See Wolff v. McDonnell , 418 U.S. 539, 577 (1974).

Because the August 28, 2000 package was opened in Mr. Brown’s presence, this

incident “does not give rise to a constitutional violation.”   Smith , 899 F.2d at 944.

       B. Media Correspondence

       In his amended complaint, Mr. Brown included allegations that prison

officials unlawfully opened correspondence addressed to him from a radio station

and intercepted an outgoing letter to the same address. We agree with the district

court’s conclusions that the interception of the of the two items was reasonable.

The incoming letter contained a check for Mr. Brown and was sent by his

godmother, who worked at the radio station. Although inmates are generally

allowed to correspond with the media, the correspondence was with Mr. Brown’s

godmother and was of a personal nature. The Defendants may regulate



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correspondence thought to be disguised as privileged media mail.      See Guahardo

v. Estelle , 580 F.2d 748, 759 (5th Cir. 1978) (noting that the district court’s

decision did “not permit wholesale sending and receiving of mail to any address

purporting to be that of a media representative” and that “prison authorities may

have a reasonable time, when necessary, to verify that the addressee reflected on

the face of an envelope is actually a member of the editorial or reporting staff of a

media organization”). Likewise, we have stated that “[i]n the case of

unprivileged incoming and outgoing prison mail, regulation by prison officials is

‘essentially an administrative matter in which the courts will not intervene.’”

United States. v. Gordon , 168 F.3d 1222, 1228 (10th Cir. 1999) (quoting

Wilkerson v. Warden of U.S. Reformatory, El Reno      , 465 F.2d 956, 957 (10th Cir.

1972)).

                                  II. CONCLUSION

      We have carefully reviewed Mr. Brown’s complaints and the record. For

substantially the same reasons underlying the district court’s May 22, 2001 Order,

we affirm the dismissal of Mr. Brown’s frivolous petition pursuant to 28 U.S.C. §

1915(e)(2) and we deny Mr. Brown’s motion to proceed in forma pauperis. Mr.




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Brown is advised that he must submit immediate payment of the unpaid balance

due in this appeal.



                                            Entered for the Court,

                                            Robert H. Henry
                                            Circuit Judge




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