                                       PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-7340


GRANT RUFFIN HAZE, III,

                     Plaintiff - Appellant,

              v.

DONNIE HARRISON; MS. SCOTT; MS. FREDRICK; OFFICER HALL;
SERGEANT CLARK; WAKE COUNTY SHERIFF DEPARTMENT,

                     Defendants - Appellees.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-ct-03109-BO)


Submitted: March 26, 2020                                          Decided: June 8, 2020


Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published opinion. Judge Motz wrote
the opinion, in which Judge Harris and Judge Quattlebaum joined.


Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Paul Gerard
Gessner, Harold F. Askins, WAKE COUNTY SHERIFF’S OFFICE, Raleigh, North
Carolina; Robert C. Montgomery, CAMPBELL UNIVERSITY SCHOOL OF LAW,
Raleigh, North Carolina, for Appellees.
DIANA GRIBBON MOTZ, Circuit Judge:

       While awaiting trial, Grant Haze was held at two state detention facilities in Wake

County, North Carolina. Haze alleges that during this time, prison officials opened, copied,

misdirected, and otherwise interfered with his mail to and from his lawyer. Proceeding pro

se, Haze filed this § 1983 action against Wake County Sheriff Donnie Harrison, the Wake

County Sheriff’s Department, and officers and staff at the facilities, alleging violations of

his First, Fourth, and Sixth Amendment rights. 1 The district court granted summary

judgment to Defendants. Haze appeals. For the reasons set forth herein, we affirm in part,

reverse in part, and remand for further proceedings consistent with this opinion.



                                             I.

       From July 2011 to September 2013, Haze, a pretrial detainee, was held at the Wake

County Public Safety Center and the Wake County Detention Center. The mail policy in

force at those facilities requires officers to inspect all incoming mail for contraband.

Special rules apply to legal mail, which officers are to inspect in the inmate’s presence.

Officers are instructed not to read an inmate’s legal mail.

       Certain law enforcement officers and lawyers at the District Attorney’s office may

request that inmates be placed on the “Jail Mail Watch List.” When an inmate is on the

Jail Mail Watch List, staff at the facilities send copies of the inmate’s incoming and



       1
       Haze also alleged civil conspiracy and violations of his right to due process, but
on appeal his attorneys do not contend the district court erred in granting summary
judgment with respect to those claims.
                                             2
outgoing non-legal mail to the Wake County Sheriff’s Office, which in turn forwards the

mail to the party requesting it. However, staff at the facilities are trained not to open or

copy an inmate’s legal mail.

       Haze alleges that prison officials improperly interfered with his legal mail on at least

fifteen occasions. According to Haze, on seven occasions prison officials opened and

copied his outgoing legal mail and forwarded it to the District Attorney’s office. All but

one of these letters were labeled “legal mail.” On five occasions, officials never delivered

Haze’s incoming legal mail or sent Haze’s outgoing legal mail. And on three occasions,

officials either read Haze’s incoming legal mail or opened it outside of his presence. 2

       Haze filed contemporaneous grievances with corrections officials regarding the

interference with his legal mail. Haze claims that when he informed a prison officer that

this interference violated his constitutional rights, the officer responded: “Sue me.”

       Haze then brought this action against Defendants under 42 U.S.C. § 1983. Haze

contends that Defendants’ interference with his legal mail violated, inter alia, his First

Amendment rights to free speech and access to the courts, his Fourth Amendment right to

be free from unreasonable searches and seizures, and his Sixth Amendment right to the

effective assistance of counsel.




       2
        Although Defendants contest Haze’s characterization of some of these incidents,
we need not resolve this conflict. See TFWS, Inc. v. Schaefer, 325 F.3d 234, 241 (4th Cir.
2003) (summary judgment is not an appropriate vehicle to “resolve conflicts in the
evidence”). Instead, the question on summary judgment is whether the movant is entitled
to judgment as a matter of law based on facts as to which “there is no genuine dispute.”
Fed. R. Civ. P. 56(a).
                                              3
       The district court granted summary judgment to Defendants. With respect to the

First Amendment free speech claim, the court held that prison officials had acted only

negligently, precluding liability under § 1983. The court concluded that Haze had failed

to show an actual injury to his ability to pursue legal claims, foreclosing his First

Amendment access-to-the-courts claim. Finally, the court held that Heck v. Humphrey,

512 U.S. 477 (1994), barred the Fourth and Sixth Amendment claims. Haze timely

appealed.

       A district court may grant summary judgment only if the movant “shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “‘A dispute is genuine if a reasonable jury could

return a verdict for the nonmoving party,’ and ‘[a] fact is material if it might affect the

outcome of the suit under the governing law.’” Variety Stores, Inc. v. Wal-Mart Stores,

Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration in original) (quoting Jacobs v. N.C.

Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015)). Although we draw all

justifiable inferences in favor of the non-movant (here, Haze), we “must accord deference

to the views of prison authorities” regarding “disputed matters of professional judgment.”

Beard v. Banks, 548 U.S. 521, 529–30 (2006).

      With the facts and standard of review in mind, we turn to Haze’s claims.



                                            II.

      Haze’s principal contention is that Defendants violated his First Amendment right

to free speech. The First Amendment, as incorporated through the Fourteenth Amendment,

                                            4
prohibits states from “abridging the freedom of speech.” U.S. Const. amend. I. This

proscription extends to both government regulations that directly burden speech and those

that have indirect chilling effects. See Washington Post v. McManus, 944 F.3d 506, 516–

17 (4th Cir. 2019).

       Opening an incarcerated person’s legal mail outside of his presence can chill

protected speech. As the Third Circuit has explained, this practice “strips those protected

communications of their confidentiality,” inhibiting the incarcerated person’s “ability to

speak, protest, and complain openly, directly, and without reservation with the court.”

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (internal quotation marks omitted); see

also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1210 (9th Cir. 2017) (“When a prisoner

receives confidential legal mail that has been opened and re-sealed, he may understandably

be wary of engaging in future communication about privileged legal matters.”); cf. Wolff

v. McDonnell, 418 U.S. 539, 577 (1974) (prison’s legal mail policy did not chill protected

speech where it required such mail to be opened in the presence of the inmate, thus

“insur[ing] that prison officials will not read the mail”).

       Although incarcerated persons do not “shed [their] first amendment rights at the

prison portals,” Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971), courts generally

accord deference to the day-to-day judgments of prison officials, see Turner v. Safley, 482

U.S. 78, 89 (1987). Accordingly, as the Supreme Court has explained, even if a prison’s

policy or practice impinges upon constitutional rights, it remains “valid if it is reasonably

related to legitimate penological interests.” Id. To determine whether this is so, courts



                                               5
apply the Turner Court’s test, which governs the claims of both convicted prisoners and

pretrial detainees like Haze. See Hause v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993).

      The Turner test requires assessment of four factors:

      (1) whether there is a valid, rational connection between the prison regulation
      and the legitimate governmental interest put forward to justify it; (2) whether
      there are alternative means of exercising the right that remain open to prison
      inmates; (3) the impact accommodation of the asserted constitutional right
      will have on guards and other inmates, and on the allocation of prison
      resources generally; and (4) whether there are ready alternatives.

Greenhill v. Clarke, 944 F.3d 243, 253 (4th Cir. 2019) (internal quotation marks omitted).

Although courts accord deference to the judgments of prison administrators, this deference

is not limitless. “When neither common sense nor evidence demonstrates a reasonable

causal nexus” between a prison administrator’s ends and chosen means, “summary

judgment for the defendant administrator is inappropriate.” Jones, 461 F.3d at 361.

      With respect to the first Turner factor, Defendants contend that they acted

reasonably in opening Haze’s legal mail outside of his presence because of potential

security risks. Haze had received contraband — internet printouts of cars, phones, and

vacation homes — through non-legal mail; prison officials suspected that Haze had also

received contraband through legal mail.

      The argument fails. To be sure, Haze’s receipt of the prohibited materials justifies

the opening of his legal mail to check for the presence of contraband. But Defendants do




                                            6
not explain, as they must, why they did so outside of Haze’s presence. 3 Because no

reasonable causal nexus has been shown between Defendants’ ends and chosen means, the

first Turner factor weighs in favor of Haze.

       The remaining Turner factors, which Defendants do not address in their brief, also

militate in favor of Haze. There are few alternative means to assure incarcerated persons

that they may freely communicate with counsel — given the nature of incarceration,

“prisoners’ avenues of confidential communication with attorneys are limited.” Hayes,

849 F.3d at 1210. Opening legal mail in an inmate’s presence would have little “impact . . .

on guards and other inmates, and on the allocation of prison resources generally,” Turner,

482 U.S. at 90 — indeed, Defendants’ own policy requires officers to do so. Cf. Al-Amin

v. Smith, 511 F.3d 1317, 1331 (11th Cir. 2008) (“[T]here is no showing that opening

attorney mail in an inmate’s presence burdens guards, prisoners, or the allocation of prison

resources; as noted above, DOC policy already requires opening attorney mail in an

inmate’s presence.”). And there is a “ready alternative[]” to the challenged practice,

Turner, 482 U.S. at 90: “opening an inmate’s attorney mail in his presence itself is the




       3
         On appeal, Defendants suggest that officer safety could be jeopardized when mail
containing contraband is opened in an inmate’s presence. This argument is conclusory —
Defendants do not explain how this rationale would apply to outgoing mail; nor do they
contend that mail at the facilities is opened within an inmate’s reach. In any event,
Defendants forfeited the argument by failing to raise it in the district court. See United
States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019). Moreover, because the
record does not reflect that this was the actual reason Defendants opened Haze’s legal mail
outside of his presence, summary judgment would be inappropriate. See Salahuddin v.
Goord, 467 F.3d 263, 277 (2d Cir. 2006); Walker v. Sumner, 917 F.2d 382, 387 (9th Cir.
1990).
                                               7
easy alternative; it ‘fully accommodates the prisoner’s rights at de minimis cost to valid

penological interests,’” Al-Amin, 511 F.3d at 1331 (quoting Turner, 482 U.S. at 91).

       Defendants advance several arguments in an attempt to evade this conclusion. First,

they argue that their actions were, at most, negligent, foreclosing liability on this claim

under § 1983. See Morrash v. Strobel, 842 F.2d 64, 67 (4th Cir. 1987). But Haze alleges

fifteen instances of interference with his legal mail, in contravention of Defendants’ own

policy, despite his complaints and written grievances. Indeed, Haze contends that when he

complained that his constitutional rights were being violated, a prison officer responded:

“Sue me.” Drawing all reasonable inferences in favor of Haze, a jury reasonably could

find that Defendants’ conduct was not negligent, but rather constituted a deliberate pattern

or practice. See Hayes, 849 F.3d at 1216, 1219 (Bybee, J., concurring in the judgment)

(prison officials’ intentional conduct may be inferred from a pattern and practice of

improperly opening legal mail or disregard for established regulations); Bieregu v. Reno,

59 F.3d 1445, 1452 (3d Cir. 1995) (holding that jury could reasonably find a pattern or

practice where the plaintiff alleged fifteen instances of his legal mail being opened and

documented five instances), overruled on other grounds by Lewis v. Casey, 518 U.S. 343

(1996).

       Next, Defendants contend that Haze has not shown that he was injured by the

opening of his legal mail. In doing so they fail to recognize that the infringement of Haze’s

First Amendment rights itself constitutes an injury. See Jones, 461 F.3d at 359–60 (“Unlike

the provision of legal libraries or legal services, which are not constitutional ‘ends in

themselves, but only the means for ensuring a reasonably adequate opportunity to present

                                             8
claimed violations of fundamental constitutional rights to the courts,’ protection of an

inmate’s freedom to engage in protected communications is a constitutional end in itself.”

(citation omitted) (quoting Lewis, 518 U.S. at 351)); Al-Amin, 511 F.3d at 1334 (“We also

agree . . . that the actual injury requirement applies to access-to-courts claims but not to

free speech claims.”).

       Finally, Defendants maintain that qualified immunity protects them from liability

on this claim. “Qualified immunity protects officers who commit constitutional violations

but who, in light of clearly established law, could reasonably believe that their actions were

lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Defendants argue

that courts had not clearly established, at the time of the alleged constitutional violations,

that legal mail must be opened in an inmate’s presence.            This directly contradicts

Defendants’ qualified immunity argument in the district court.           There, Defendants

contended that “[t]he only established law is that general mail may be opened and inspected

outside of the presence of the inmate. ‘Legal Mail’ may be opened and inspected for

contraband, but in the presence of the inmate.” See Defs.’ Mem. Supp. Summ. J. 26, ECF




                                              9
No. 104. Accordingly, Defendants have forfeited the argument on appeal. See United

States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019). 4



                                            III.

       Haze also maintains that in opening his legal mail outside of his presence, prison

officials violated his Fourth Amendment rights. The Fourth Amendment, as incorporated

through the Fourteenth Amendment, prohibits state actors from conducting “unreasonable

searches and seizures.”    U.S. Const. amend. IV.      “A government agent’s search is

unreasonable when it infringes on an expectation of privacy that society is prepared to

consider reasonable.” United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013)

(internal quotation marks omitted).

       The fact that legal mail is widely recognized to be privileged and confidential —

even in the context of prisons — suggests that an incarcerated person’s expectation of

privacy in his legal mail is one “that society is prepared to consider reasonable.” See id.

(internal quotation marks omitted); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir.



       4
         Moreover, we note that in the absence of binding authority clearly establishing a
right, “we may look to ‘a consensus of cases of persuasive authority’ from other
jurisdictions.” See Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538–39 (4th Cir. 2017)
(quoting Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004)). Such a consensus
seems to exist here, foreclosing this qualified immunity defense. See Merriweather v.
Zamora, 569 F.3d 307, 317 (6th Cir. 2009); Al-Amin, 511 F.3d at 1330–31; Jones, 461 F.3d
at 359; Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Jensen v. Klecker, 648 F.2d
1179, 1182 (8th Cir. 1981); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980); see also
Hayes, 849 F.3d at 1211; Cody v. Weber, 256 F.3d 764, 768 (8th Cir. 2001); McWilliams
v. Schoeneman, 124 F.3d 217, 1997 WL 525492, at *3 (10th Cir. Aug. 11, 1997)
(unpublished table decision). But see Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993).
                                            10
2003) (“In balancing the competing interests implicated in restrictions on prison mail,

courts have consistently afforded greater protection to legal mail than to non-legal

mail . . . .”). And although the Supreme Court held in Hudson v. Palmer, 468 U.S. 517

(1984), that “the Fourth Amendment proscription against unreasonable searches does not

apply within the confines of the prison cell,” id. at 526, “nothing in Hudson indicates the

Supreme Court intended to abrogate a prisoner’s expectation of privacy beyond his cell,”

King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016) (emphasis added) (internal quotation

marks omitted).

       Nevertheless, Defendants are entitled to qualified immunity with respect to Haze’s

Fourth Amendment claim. Neither we nor the Supreme Court has previously considered

the question of whether incarcerated persons have a reasonable expectation of privacy in

their legal mail. Nor is there a consensus of persuasive authority on the matter — indeed,

neither party identifies a single case, in any Circuit, where interference with an incarcerated

person’s legal mail was held to be violative of the Fourth Amendment. Consequently,

Defendants have met their burden to show that their actions did not violate clearly

established law for purposes of Haze’s Fourth Amendment claim.



                                             IV.

       Finally, Haze contends that Defendants’ interference with his legal mail hindered

his criminal defense, violating his First Amendment right of access to the courts and his

Sixth Amendment right to the effective assistance of counsel. Haze has forfeited these

arguments by failing to raise them in his informal brief. See Jackson v. Lightsey, 775 F.3d

                                              11
170, 177 (4th Cir. 2014); United States v. Hairston, 754 F.3d 258, 260 n.3 (4th Cir. 2014).

Accordingly, we need not decide whether Heck v. Humphrey bars these claims. See Heck,

512 U.S. at 486–87 (holding that § 1983 claims are barred where recovery would imply

the invalidity of plaintiff’s criminal conviction if that conviction has not yet been

invalidated).



                                             V.

       For the foregoing reasons, the judgment of the district court is

                        AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                             12
