BLD-315                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 09-2705


                                  RONALD C. JONES,
                                             Appellant
                                        v.

              M. BROWN, Internal Affairs OFC.; STEVEN SOOTKOOS,
                  Associate Warden; ROY L. HENDRICKS, Warden


                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civil No. 02-cv-03045)
                     District Judge: Honorable Garrett E. Brown, Jr.

                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

                               September 17, 2009
        Before: MCKEE, Chief Judge, FISHER and CHAGARES, Circuit Judges

                              (Opinion filed: May 2, 2011)


                                        OPINION




PER CURIAM

       In September of 2002, appellant Ronald Jones and others incarcerated at Northern

State Prison filed a complaint pursuant to 42 U.S.C. § 1983 in United States District
Court for the District of New Jersey, alleging that their First Amendment right to free

speech was being violated by a recent revision to the Department of Corrections policies

concerning incoming prisoner mail. Prior to the revision, the regulations prohibited

officers from opening a prisoner’s legal mail outside of his presence. Following the

infamous anthrax scare involving the United States Post Office building in Hamilton,

New Jersey, the new policy, enacted on October 19, 2001, permitted DOC officers to

open a prisoner’s legal mail outside of his presence. Jones made further claims of

retaliation by prison officials, including that an NSP guard verbally threatened him in

retaliation for filing grievance forms and that an internal affairs officer ordered prison

guards to search his cell and confiscate his typewriter and hundreds of legal documents.

Jones sought injunctive and declaratory relief, as well as compensatory and punitive

damages.

       The District Court denied relief and Jones appealed. On September 15, 2006, we

affirmed the judgment of the District Court except that we reversed the grant of summary

judgment on Jones’s claim for injunctive relief; as to that, we remanded with instructions

to enter the desired injunction. See Jones v. Brown, 461 F.3d 353, 365 (3d Cir. 2006)

(anthrax-related legal mail policy of state prison was not reasonably related to prison’s

legitimate penological interest in protecting health and safety of prisoners and staff). On

September 20, 2007, the District Court issued an order that the defendants “immediately

cease and desist the practice of opening Plaintiffs’ legal mail outside of their presence.”



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       At issue in the instant appeal, on December 3, 2008, Jones filed a motion for

enforcement of the injunction, complaining that the defendants were not complying with

it. He claimed that, in September and October 2007, prison officials distributed legal

mail in the “Traffic Control” area of NSP. There was a 4 x 8 inch hole in one of the walls

of the room where the legal mail was opened through which prisoners were expected to

look while their mail was being opened. Jones asserted that he was unable to see his legal

mail being opened through that hole, and he informed corrections officers of this fact both

verbally and through the submission of a grievance form.

       In early 2008, Jones received a response from prison officials that the matter

would be investigated. Then, on or about January 30, 2008, Jones noticed that a 1 x 2

foot window had been cut into one of the walls of the “Traffic Control” area mail room.

Prisoners could now witness the opening of their legal mail through this window. Jones

was satisfied by this arrangement, in theory. The window, however, was often covered in

black plastic. Only twice, in February of 2008, did corrections officers remove the black

plastic from the window while they were opening Jones’s legal mail. Jones reminded the

officers to remove the black plastic before opening his mail and they refused. He

reported this problem to prison officials but did not receive a response. He then turned to

the District Court, seeking enforcement of the injunction and the imposition of $10,000 in

sanctions.

       In response to Jones’s motion for enforcement, the defendants submitted the



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Declaration of Lieutenant William Anderson (and later submitted his supplemental

affidavit). Anderson conceded that the windows were generally kept covered with black

plastic to prevent prisoners from looking through them at times when their legal mail was

not being opened. However, he denied that the allegation that the black plastic remained

in place when prisoners were trying to view the opening of their legal mail. Anderson

also asserted that Jones’s claims were moot in any event because legal mail was no longer

opened in the “Traffic Control” area as of November of 2008. Instead, corrections

officials at that time began opening legal mail in a room in the NSP Social Services

Department, and prisoners actually were brought into the room to observe the procedures.

Later, in December of 2008, the location was moved to a room in the NSP Visiting Area,

but, again, prisoners were allowed to be present in the room when their legal mail was

being opened. In light of these facts, the defendants contended that they had complied

with the District Court’s injunction.

       In a reply, which Jones supported with affidavits from fellow prisoners, he

conceded that his legal mail was now being opened in his presence. However, he

contended that the defendants had been in violation of the injunction for a significant

period of time and should be held in contempt for doing so. Moreover, he accused

Lieutenant Anderson of submitting a perjured affidavit.

       During the course of these proceedings, Jones also claimed that corrections

officers had retaliated against him for seeking enforcement of the injunction. He also



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asserted that he had been wrongfully denied parole in July of 2008. With respect to these

claims, Jones sought a declaratory judgment enjoining NSP officials from harassing him

or retaliating against him in any way and costs.

       In an Order entered on May 26, 2009, the District Court reopened the case, and

construed Jones’s motion as one for civil contempt. The court then denied it as such.

The court severed Jones’s claims of retaliation and denial of parole, without prejudice,

because they were new and not part of the original action, and instructed the Clerk of the

District Court to open two new civil actions with respect to these claims. The two new

civil actions were to be closed administratively until such time as Jones arranged to pay

the filing fees associated with the new cases, or otherwise give indication that he did not

wish to pursue them.

       Jones appeals. Our Clerk granted him leave to appeal in forma pauperis and

advised him that his appeal was subject to summary dismissal under 28 U.S.C. §

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He

was invited to submit argument in writing, and he has done so. In his response, Jones

contends that the District Court decided the case prematurely and should have allowed

greater discovery.

       We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because

it clearly appears that no substantial question is presented by this appeal. We have

jurisdiction under 28 U.S.C. § 1291. In treating Jones’s motion as one for civil contempt,



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the District Court reasoned that Jones would have to show that (1) a valid court order

existed, (2) the defendants had knowledge of the order, and (3) they disobeyed it. See

Harris v. City of Philadelphia, 47 F.3d 1311, 1329 (3d Cir. 1995). A valid order existed

here, and the validity of it could not be questioned. See id. Furthermore, the defendants

had knowledge of the order. Nevertheless, the District Court reasoned, the elements of

civil contempt must be proved by clear and convincing, and any ambiguities are resolved

in favor of the party charged with contempt. See John T. ex rel. Paul T. v. Delaware

County Intermediate Unit, 318 F.3d 545, 552 (3d Cir. 2003). In addition, the defendants

may not be held in contempt if they took all reasonable steps to comply with the

injunction. Harris, 47 F.3d at 1324.

       Applying the applicable law, the District Court concluded that Jones had not

shown by clear and convincing evidence that the defendants were not in compliance with

the court’s order requiring them to cease and desist the practice of opening Jones’s legal

mail outside of his presence. Jones conceded that, by late December of 2008, his legal

mail was being opened in his presence, and his evidence that the order was disobeyed

prior to that time was not “clear and convincing.”

       We review the District Court’s order denying Jones’s motion for enforcement of

the court’s order for abuse of discretion because no legal issue is involved. Harris, 47

F.3d at 1321. Evidence is “clear and convincing” when it “produce[s] in the mind of the

trier of fact a firm belief or conviction as to the truth of the allegations sought to be



                                               6
established, evidence so clear, direct and weighty and convincing as to enable [the

factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise

facts in issue.” Matter of Jobes, 529 A.2d 434, 407-08 (N.J. 1987) (quoting State v.

Hodge, 471 A.2d 389, 393 (N.J. 1984) (internal quotations removed)). This is a stringent

standard and the burden of proof thus was squarely on Jones.

       We have reviewed the record evidence, and Jones’s argument in support of his

appeal.1 But, even assuming, as did the District Court, that Jones’s and his inmate-

witnesses’ assertions of imperfect compliance with the court’s order had some basis in

fact, we cannot agree with him that the District Court necessarily abused its discretion in

finding that these assertions did not constitute clear and convincing evidence of

noncompliance. The District Court did not abuse its discretion in determining that it

could not come to a clear conviction, see Jobes, 529 A.2d at 407-08, that the defendants

did not take all reasonable steps, see Harris, 47 F.3d at 1324, to comply with the

injunction. When Jones complained about the 4 x 8 inch hole, the defendants looked into

it and ultimately created a sizeable window for viewing, which Jones conceded was

adequate. The extent of NSP’s subsequent use of black plastic on the viewing window

certainly was disputed by the parties, but Jones offered no evidence to support his



   1
    Although we likely would lack jurisdiction to review the District Court’s denial of
Jones’s new retaliation and parole claims without prejudice, see Borelli v. City of
Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (order dismissing complaint without
prejudice generally not appealable), Jones does not appear to challenge this part of the
court’s order.

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assertion that Anderson lied in his Declaration. Moreover, the issue of the black plastic

became moot when corrections officials began opening legal mail in a room in the Social

Services Department, with the prisoners present. Jones has complained that forty days

elapsed after his motion for enforcement was filed before the matter of satisfactory

compliance with the District Court’s order was resolved, but the District Court, without

abusing its discretion, was free to conclude that the several steps taken along the way, and

the amount of time in which they were taken, ultimately was reasonable and indicated

compliance with the court’s order.

       With respect to Jones’s contention that discovery was incomplete and the District

Court’s decision premature, we note that a district court has discretion to control the

scope of discovery. See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1310-11

(3d Cir. 1995). In view of the affidavits that were submitted, and the absence of any

support from Jones for his assertion that Anderson’s affidavit was unworthy of belief, the

District Court did not abuse its discretion in determining that Jones’s motion for

enforcement could be resolved without resort to sections of the logbooks indicating where

and when legal mail was opened in the facility.

       We will summarily affirm the order of the District Court denying the motion for

enforcement and sanctions.




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