        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2     Sallier v. Brooks, et al.                     No. 01-1269
    ELECTRONIC CITATION: 2003 FED App. 0332P (6th Cir.)
                File Name: 03a0332p.06                    Wright, OFFICE OF THE ATTORNEY GENERAL,
                                                          CORRECTIONS DIVISION, Lansing, Michigan, for
                                                          Appellants. Daniel E. Manville, Ferndale, Michigan, for
UNITED STATES COURT OF APPEALS                            Appellee.
              FOR THE SIXTH CIRCUIT                                            _________________
                _________________
                                                                                   OPINION
 BLAINE SALLIER,                  X                                            _________________
            Plaintiff-Appellee, -                            MARTHA CRAIG DAUGHTREY, Circuit Judge. The
                                   -
                                   -  No. 01-1269         plaintiff, Blaine Sallier, filed this action as a Michigan state
           v.                      -                      prisoner, pursuant to 42 U.S.C. § 1983, charging that the
                                    >                     defendants, two prison mailroom clerks, had violated his civil
                                   ,                      rights by unlawfully “opening, censoring, and interfer[ing
 DEBORAH BROOKS and                -
 CHRISTINE RAMSEY ,                                       with his] legal mail” and seeking declaratory, monetary, and
                                   -                      injunctive relief. The district court declined to rule on the
       Defendants-Appellants. -                           defendants’ claim of qualified immunity before trial and
                                   -                      instead instructed the jury to determine whether certain
                                  N                       correspondence was in fact legal mail and whether that
      Appeal from the United States District Court        correspondence had been improperly opened outside of
     for the Eastern District of Michigan at Detroit.     Sallier’s presence. The jury returned a verdict in the
    No. 96-70458—Arthur J. Tarnow, District Judge.        plaintiff’s favor on 13 of the claims, assessing damages at
                                                          $13,000.
              Argued: September 17, 2002
                                                             The defendants now appeal the district court’s ruling on
        Decided and Filed: September 18, 2003             qualified immunity, as well as the district court’s failure to
                                                          grant a new trial based on a number of evidentiary decisions
 Before: SILER, DAUGHTREY, and GILMAN, Circuit            and what they contend were erroneous jury instructions. We
                    Judges.                               conclude that the question of what constitutes “legal mail” is
                                                          a question of law and, therefore, that the district court erred in
                  _________________                       submitting the issue to the jury. For the reasons set out
                                                          below, we further conclude that the correspondence in 11 of
                       COUNSEL                            the 20 claims did not implicate constitutionally-protected
                                                          legal mail rights, that the defendants were entitled to qualified
ARGUED: Kevin R. Himebaugh, OFFICE OF THE                 immunity on six of the remaining nine claims, and that the
ATTORNEY GENERAL, CORRECTIONS DIVISION,                   defendants were not entitled to qualified immunity on the
Lansing, Michigan, for Appellants. Daniel E. Manville,    final three claims. We reverse the judgment below as to the
Ferndale, Michigan, for Appellee. ON BRIEF: Patrick J.    claims that either did not involve legal mail rights or for

                            1
No. 01-1269                     Sallier v. Brooks, et al.   3    4      Sallier v. Brooks, et al.                   No. 01-1269

which there was qualified immunity, and we affirm the                K. State Appellate Defender Office – August 29, 1995
judgment below as to the three claims involving protected
legal mail rights for which there was no qualified immunity.         L. Teola P. Hunter, Wayne County Clerk –
We also reduce the damages awarded by the jury accordingly.             September 9, 1995
Finally, we find no merit in the defendants’ remaining
evidentiary claims and affirm the district court’s rulings on        M. Law Office of Kitch, Drutchas, Wagner & Keeney
those issues.                                                           – November 7, 1995

   FACTUAL AND PROCEDURAL BACKGROUND                                 N. Lynn Allen, Oakland County Clerk – December 20,
                                                                        1995
  In this pro se § 1983 action, the plaintiff claims that two
prison mailroom clerks, Deborah Brooks and Christine                 O. United States District Court – December 22, 1995
Ramsey, violated his federal constitutional rights by opening
his “legal mail” outside his presence, after he had filed a          P. Michigan Court of Appeals – December 22, 1995
written request to have such mail opened only in his presence.
The written request was dated May 4, 1994, and was entered           Q. United States District Court – December 23, 1995
into the mailroom records on May 5, 1994. The 20 items of            R. United States District Court – December 27, 1995
mail at issue were sent from various sources over a two-year
period as follows:                                                   S. Sixth Judicial Circuit – January 22, 1996
  A. State Court Administrator – March 30, 1994                      T. United States District Court – February 5, 1996
  B. Court of Appeals – April 1, 1994                            Sallier did not allege that any of the mail was actually read by
                                                                 prison employees, only that it was delivered to him already
  C. Judicial Tenure Commission – April 15, 1994                 opened.
  D. Attorney Grievance Commission – April 29, 1994                 The defendants filed a motion to dismiss the complaint
  E. Michigan Appellate Assigned Counsel System –                pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the
     May 5, 1994                                                 alternative, for summary judgment. They argued that Sallier
                                                                 had failed to establish a constitutional violation and that, even
  F. American Bar Association – May 10, 1995                     if he had, they were protected from suit by qualified
                                                                 immunity. The district court denied the defendants’ motion
  G. Macomb County Clerk – May 19, 1995                          and appointed counsel for Sallier. After Sallier’s appointed
                                                                 counsel amended the complaint, the defendants again moved
  H. Macomb County Clerk – June 27, 1995                         for dismissal pursuant to Rule 12(b)(6) based on qualified
                                                                 immunity. The court denied the motion, finding that
  I.   State Appellate Defender Office – July 26, 1995
                                                                     the jury must make . . . factual determinations before the
  J.   Macomb County Clerk – August 16, 1995                         Court has sufficient information to decide the qualified
No. 01-1269                      Sallier v. Brooks, et al.      5   6    Sallier v. Brooks, et al.                    No. 01-1269

  immunity issue. The jury must, for example, decide                                         ANALYSIS
  whether each of the pieces of correspondence referenced
  in the Complaint constituted “legal mail,” and whether            I. “Legal Mail”: a Question of Law
  any letters determined to be “legal mail” were opened
  outside of Mr. Sallier’s presence. The jury’s findings of            As a threshhold matter, we note that the district court erred
  fact are thus key to the Court’s determination of qualified       in reserving a ruling on the defendants’ qualified immunity
  immunity, as the court must then decide, as a matter of           defense until the jury made a factual determination as to
  law, whether the defendants would have reasonably                 whether each piece of correspondence constituted protected
  understood that opening the specific pieces of mail               mail. The determination of whether particular kinds of
  referenced in the complaint violated Mr. Sallier’s rights.        correspondence qualify for the constitutional protection
                                                                    accorded a prisoner’s “legal mail” is a question of law
  The jury must make credibility determinations and must            properly decided by the court, not one of fact that can be
  determine what legal mail, if any, was opened outside of          submitted to a jury. See Seal v. Morgan, 229 F.3d 567, 580
  Mr. Sallier’s presence after the defendants knew, or              (6th Cir. 2000)(stating that courts determine questions of law,
  should have known, that such actions were prohibited.             juries determine questions of fact). Had the court found
                                                                    certain correspondence to be constitutionally protected legal
   Before and during the trial, the district court also issued a    mail, it should then have granted qualified immunity on any
series of in limine rulings, including one that granted the         claims involving those items of correspondence that the
plaintiff’s motion to preclude admission of his prior               defendants could have opened without violating constitutional
convictions and another that denied the defendants’ motion to       rights that were clearly established at the time and of which
require introduction into evidence of the original envelopes in     a reasonable person would have known. See Christophel v.
which the letters in question were received. The court              Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995). After
allowed Sallier to introduce as exhibits photocopies of some        dismissing the claims for all correspondence that was either
of the allegedly opened envelopes that included his                 not legal mail or for which the defendants had qualified
handwritten notes.                                                  immunity, the court should have submitted the remaining
                                                                    claims to the jury for a verdict on the factual dispute of
   The jury returned a verdict in the plaintiff’s favor on 13 of    whether such correspondence was actually opened outside of
the 20 claims, awarding compensatory damages of $750 and            Sallier’s presence.
punitive damages of $250 for each claim, totaling $13,000 in
damages. After the jury verdict, the defendants moved for a         II. Constitutionally-Protected “Legal Mail”
new trial based on alleged evidentiary errors or, in the
alternative, for remittitur or judgment as a matter of law. The       A prisoner’s right to receive mail is protected by the First
district court denied the motion. The defendants appeal the         Amendment, but prison officials may impose restrictions that
district court’s denial of their motion for a new trial or          are reasonably related to security or other legitimate
remittitur and its failure to grant them qualified immunity on      penological objectives. See Knop v. Johnson, 977 F.2d 996,
all claims.                                                         1012 (6th Cir. 1992). As we have noted, “prison officials
                                                                    may open prisoners’ incoming mail pursuant to a uniform and
                                                                    evenly applied policy with an eye to maintaining prison
                                                                    security.” Lavado v. Keohane, 992 F.2d 601, 607 (6th Cir.
No. 01-1269                      Sallier v. Brooks, et al.     7    8     Sallier v. Brooks, et al.                    No. 01-1269

1993). However, prison officials who open and read                  another facility, and were not required to designate particular
incoming mail in an arbitrary and capricious fashion violate        attorneys as their counsel. Id.
a prisoner’s First Amendment rights. See Parrish v. Johnson,
800 F.2d 600, 604 (6th Cir. 1986).                                     Not all mail that a prisoner receives from a legal source will
                                                                    implicate constitutionally protected legal mail rights. Indeed,
   Moreover, when the incoming mail is “legal mail,” we have        even mail from a legal source may have little or nothing to do
heightened concern with allowing prison officials unfettered        with protecting a prisoner’s access to the courts and other
discretion to open and read an inmate’s mail because a              governmental entities to redress grievances or with protecting
prison’s security needs do not automatically trump a                an inmate’s relationship with an attorney. When it does,
prisoner’s First Amendment right to receive mail, especially        however, we must balance the interest of prison security
correspondence that impacts upon or has import for the              against the possibility of tampering that could unjustifiably
prisoner’s legal rights, the attorney-client privilege, or the      chill the prisoner’s right of access to the courts or impair the
right of access to the courts. See Kensu v. Haigh, 87 F.3d          right to be represented by counsel. We also note in response
172, 174 (6th Cir. 1996) (“The right of a prisoner to receive       to prison officials’ security concerns that even
materials of a legal nature, which have impact upon or import       constitutionally protected mail can be opened (although not
with respect to that prisoner’s legal rights and/or matters, is a   read) and inspected for contraband. The only requirement is
basic right recognized and afforded protection by the               that such activity must take place in the presence of the
courts. . . .”); see also Davis v. Goord, 320 F.3d 346, 351 (2d     recipient, if such a request has been made by the prisoner.
Cir. 2003) (“In balancing the competing interests implicated
in restrictions on prison mail, courts have consistently                A. Claims A, B, C, D, and E: Items Allegedly Opened
afforded greater protection to legal mail than to non-legal                Before Plaintiff Filed the Written Request
mail. . . .”).
                                                                      On May 4, 1994, Sallier submitted a form to the mailroom
   In an attempt to accommodate both the prison’s needs and         supervisor indicating that it was “a written request to be
the prisoner’s rights, courts have approved prison policies that    present when my legal mail is opened.” The request was
allow prison officials to open “legal mail” and inspect it for      received by defendant Redmond on May 5, 1994. This
contraband in the presence of the prisoner. See, e.g., Wolff v.     written request was submitted in compliance with Michigan
McDonnell, 418 U.S. 539, 577 (1974) (upholding such a               Administrative Code Rule 791.6605(4) and Michigan
policy against a Sixth Amendment attorney-client privilege          Department of Corrections policy directive PD 05.03.118 ¶K,
claim and a Fourteenth Amendment due process claim based            both of which state that upon a prisoner’s written request,
on access to the courts). In Knop, we addressed an opt-in           mail that is clearly identified as being from the prisoner’s
system in which prison officials could open any mail sent to        designated attorney, the legislative corrections ombudsman,
a prisoner unless the prisoner affirmatively requested that         or a state or federal court “shall be opened and inspected for
“privileged mail,” defined by the policy as mail sent by a          contraband in the prisoner’s presence.”
court or by counsel, be opened in his presence. 977 F.2d at
1012. We found that the opt-in system was constitutionally            Sallier received all of the letters that he alleged were
sound as long as prisoners received written notice of the           opened outside his presence in Claims A, B, C, D, and E on
policy, did not have to renew the request upon transfer to          or before the date that his written request was accepted in the
                                                                    prison mailroom. Because this court and others have upheld
No. 01-1269                      Sallier v. Brooks, et al.     9    10   Sallier v. Brooks, et al.                    No. 01-1269

opt-in systems that require an affirmative request to be            if (a) the envelope contains the return address of a licensed
present when legal mail is opened, Sallier had no                   attorney and (b) the envelope has markings that warn of its
constitutionally protected right to be present for the opening      privileged content); Wolff, 418 U.S. at 576 (finding it entirely
of any mail before the mailroom had received his request.           appropriate for a state to require any communication from an
Therefore, we need not reach the issue of whether the mail in       attorney to be specially marked as originating from an
Claims A, B, C, D, and E constituted “legal mail.” As a             attorney, including the attorney’s name and address, if the
matter of law, the defendants cannot be liable for having           communication is to be given special treatment).
opened mail, even if it is “legal mail,” prior to the time that
Sallier made his written request to have such mail opened in          In general, when there is no specific indication to the
his presence. As a result, Claims A, B, C, D, and E should          contrary, an envelope from an organization such as the ABA
not have been submitted to the jury and, accordingly, the jury      may be opened pursuant to the regular mail policy without
verdict on these five claims must be set aside.                     violating the First Amendment rights of a prisoner. As a
                                                                    matter of law, therefore, the defendants cannot be liable under
  B. Claim F: Correspondence from the American Bar                  Claim F, which should not have been submitted to the jury.
     Association                                                    Accordingly, the jury verdict on this claim must be set aside.
   Sallier alleged that on May 10, 1995, he received                  C. Claims G, H, J, L, and N: Correspondence From
correspondence from the American Bar Association that was                County Clerks
opened by the defendants outside his presence. Nothing on
the envelope indicated that it contained confidential, personal,      Sallier alleged that on May 19, 1995, June 27, 1995,
or privileged material, that it was sent from a specific attorney   August 15, 1995, September 6, 1995, and December 20,
at the ABA, or that it related to a currently pending legal         1995, he received mail from various county clerks that was
matter in which Sallier was involved. The ABA is a                  opened outside of his presence. The senders on these
professional organization designed to support attorneys in a        envelopes are: (1) Carmella Sabaugh, Macomb County Clerk
variety of ways; it is not an organization that has the authority   and Register of Deeds; (2) Teola P. Hunter, Wayne County
to take action on behalf of an inmate. Compare Jensen v.            Clerk; and (3) Lynn D. Allen, Oakland County Clerk -
Klecker, 648 F.2d 1179, 1183 (8th Cir. 1981) (finding that a        Register of Deeds, County Clerk’s Office. Nothing on any of
letter from the National Prison Project, bearing the name of an     the envelopes indicated that the envelope contained
attorney and stamped “Lawyer Client Mail Do Not Open                confidential, personal, or privileged material, that it was sent
Except In Presence of Prisoner” appears to come well within         from an attorney, that it related to a currently pending legal
the definition of protected attorney-client legal mail). Given      matter in which Sallier was involved, or that it was to be
that the ABA is not a direct-services legal organization and        opened only in the presence of the prisoner. In general, a
generally does not provide legal advice and that the envelope       county clerk or register of deeds is not someone who can
contained no marking to alert a prison employee that it was to      provide legal advice about a prisoner’s rights or direct legal
be opened only in the presence of the prisoner, receipt of this     services and is not someone with authority to take action on
correspondence did not implicate constitutionally protected         behalf of a prisoner. Mail from a county clerk simply does
legal mail rights. Cf. Boswell v. Mayer, 169 F.3d 384, 388-89       not implicate a prisoner’s right of access to the courts, of
(6th Cir. 1999) (upholding prison policy of treating mail from      petitioning the government to redress grievances, or of
a state attorney general’s office as protected legal mail only      competent representation by counsel. The administrative
No. 01-1269                       Sallier v. Brooks, et al.    11    12   Sallier v. Brooks, et al.                    No. 01-1269

matters about which one generally communicates with a                   We recognize that the Seventh Circuit has stated in dicta
county clerk or register of deeds, i.e., birth, marriage, or death   that mail from court personnel can be treated as general
certificates, tax and real estate services, automobile title and     correspondence unless it is designated according to prison
registration, etc., are not the types of legal matters that raise    policy as “Special Mail - Open only in the presence of the
heightened concern or constitutional protection.                     inmate,” because mail from court personnel is generally a
                                                                     matter of public record. See Martin v. Brewer, 830 F.2d 76,
  We find that as a general matter and as applied to Claims          78-79 (7th Cir. 1987); Castillo v. Cook County Mail Room
G, H, J, L, and N in this case, mail from a county clerk or          Dept., 990 F.2d 304, 306-07 (7th Cir. 1993) (calling the
register of deeds does not implicate constitutionally protected      Martin decision non-binding as dicta on this point, and
legal mail rights. Given the nature of a county clerk’s office       reversing a district court’s dismissal of a prisoner complaint
and given that there was no specific indication to the contrary      alleging two letters from a federal district court and one from
marked on the envelope, the correspondence from the county           the United States Department of Justice were opened outside
clerks and registers of deeds in this case could be opened           his presence); but see Keenan v. Hall, 83 F.3d 1083, 1094
pursuant to the regular mail policy without violating Sallier’s      (9th Cir. 1996)(citing Martin for the proposition that “mail
First Amendment rights.                                              from the courts, as contrasted to mail from a prisoner’s
                                                                     lawyer, is not legal mail”). However, prior decisions from
   As a matter of law, therefore, the defendants cannot be           our court have used the term “legal mail” to include mail from
liable under Claims G, H, J, L, and N. These claims should           the courts and have expressed disagreement with Martin’s
not have been submitted to the jury and, accordingly, the jury       rationale that mail from a court is automatically a matter of
verdict on these claims must be set aside.                           public record. See Bell-Bey, 87 F.3d 832 (referring
                                                                     throughout the opinion to mail from a prisoner to his
  D. Claims O through T: Correspondence from State                   designated attorney as well as to any state or federal court as
     and Federal Courts                                              legal mail); Boswell, 169 F.3d at 389-90 (“Unlike mail from
                                                                     the ACLU, courts, defense attorneys, and so forth, mail from
   In these claims, Sallier alleged that on various dates            Prosecuting Attorneys and the Attorney General will almost
between December 22, 1995, and February 5, 1996, he                  always consist of documents in the public record.”).
received mail from state and federal courts that was opened
outside of his presence. The status of such mail presents the           Indeed, we can imagine a situation in which a court
most difficult question in this appeal, because it will              corresponds with a prisoner before filing the prisoner’s
frequently, but not necessarily, involve a currently pending         complaint because some administrative requirement, such as
legal matter affecting the prisoner’s rights. See Bell-Bey v.        submitting an in forma pauperis affidavit, paying the filing
Williams, 87 F.3d 832, 837-38 (6th Cir. 1996); see also              fee, or signing the complaint, has not been met. In that
Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir. 1976) (holding       situation, the complaint is not yet a public record, and prison
that an inmate’s right of access to the courts requires that         officials have no legitimate penological interest in reading the
incoming prisoner mail from courts, attorneys, prosecuting           correspondence before it is. See Turner v. Safely, 482 U.S. 78
attorneys, and probation or parole officers be opened only in        (1987) (prison officials must articulate some legitimate reason
the presence of the inmate).                                         for interfering with prisoners’ communications). In order to
                                                                     guard against the possibility of a chilling effect on a
                                                                     prisoner’s exercise of his or her First Amendment rights and
No. 01-1269                     Sallier v. Brooks, et al.   13    14   Sallier v. Brooks, et al.                    No. 01-1269

to protect the right of access to the courts, we hold that mail   component of the judicial process and, therefore, that as a
from a court constitutes “legal mail” and cannot be opened        matter of law, mail from an attorney implicates a prisoner’s
outside the presence of a prisoner who has specifically           protected legal mail rights. See Kensu, 87 F.3d at 174
requested otherwise.                                              (referring to a prisoner’s right to protect the contents of
                                                                  correspondence with an attorney as a “fundamental right”).
  E. Claims I, K, and M:             Correspondence from          There is no penological interest or security concern that
     Attorneys                                                    justifies opening such mail outside of the prisoner’s presence
                                                                  when the prisoner has specifically requested otherwise.
   As to these three claims,Sallier alleged that on July 26,
1995, August 29, 1995, and November 7, 1995, he received          III. Qualified Immunity
mail from an attorney that was opened outside of his
presence. Such correspondence is, of course, the very essence        Given our conclusion that Claims I, K, N, and O through T
of “legal mail.” See Kensu, 87 F.3d at 174; Knop, 977 F.2d        involve “legal mail,” we now turn to the defendants’ qualified
at 1012. Moreover, in Knop, we held that a prisoner may not       immunity defense. Government officials who perform
be required to designate ahead of time the name of the            discretionary functions are generally protected from liability
attorney who will be sending the prisoner confidential legal      for civil damages as long as their conduct does not violate
mail. Id. In fact, we even implied in Muhammad v. Pitcher,        “clearly established statutory or constitutional rights of which
35 F.3d 1081 (1994), that a prison policy allowing inmates to     a reasonable person would have known.” Harlow v.
be present when mail from their attorneys was opened was          Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is
constitutionally required, and we held that mail from the         a purely legal question to be determined prior to trial, see
Attorney General’s office required similar protection because     Donta v. Hooper, 774 F.2d 716, 719 (6th Cir. 1985), and a
of the potentially confidential nature of such correspondence.    plaintiff bears the burden of proving that a clearly established
Id. at 1083.                                                      right existed at the time a defendant's actions took place. See
                                                                  Tucker v. Callahan, 867 F.2d 909, 913 n.3 (6th Cir. 1989). In
   We are not alone in this conclusion. Although courts in        determining whether a constitutional right is clearly
other circuits have embraced varying definitions of “legal        established at the time of the actions in question, we “look
mail,” there is general agreement that mail from a prisoner’s     first to decisions of the Supreme Court, then to decisions of
attorney is always included in such a definition. See, e.g.,      this Court and other courts within our circuit, and finally to
Keenan, 83 F.3d at 1094 (stating mail from a prisoner’s           decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536,
lawyer is legal mail); Lemon v. Dugger, 931 F.2d 1465, 1466       539 (6th Cir. 1994). A court need not have held that the very
(11th Cir. 1991) (same); Jensen, 648 F.2d at 1182 (same).         action in question is unlawful if, in light of pre-existing law,
When the Supreme Court considered the question of                 the unlawfulness is apparent. See Dickerson v. McClellan,
incoming legal mail in Wolff, 418 U.S. at 576-77, it              101 F.3d 1151, 1158 (6th Cir. 1996).
concluded that a prison policy requiring an inmate to be
present when mail from his attorney is opened adequately            As we have recently observed:
protects the inmate’s constitutional rights.
                                                                    Qualified immunity involves a three-step inquiry. First,
  We find that the prisoner's interest in unimpaired,               we determine whether, based upon the applicable law,
confidential communication with an attorney is an integral          the facts viewed in the light most favorable to the
No. 01-1269                      Sallier v. Brooks, et al.   15    16   Sallier v. Brooks, et al.                    No. 01-1269

  plaintiffs show that a constitutional violation has              Circuit Court of Appeals as legal mail, although the status of
  occurred. Second, we consider whether the violation              the mail in question was not at issue in the case. See id. at
  involved a clearly established constitutional right of           609. In Muhammad, a 1994 opinion, we observed that other
  which a reasonable person would have known. Third, we            courts “have consistently recognized that ‘legal mail’ includes
  determine whether the plaintiff has offered sufficient           correspondence from elected officials and government
  evidence “to indicate that what the official allegedly did       agencies, including the offices of prosecuting officials such as
  was objectively unreasonable in light of the clearly             state attorneys general.” 35 F.3d at 1083. We emphasized in
  established constitutional rights.”                              that case that a prisoner has a fundamental interest in
                                                                   maintaining the confidentiality of correspondence with the
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quoting        attorney general, just as with other legal assistance
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en           organizations. Id. Again, however, the status of mail
banc). As noted above, the first step of the inquiry is met for    received from a court was not directly in issue.
Sallier’s claims involving mail from the courts and counsel:
the facts viewed in the light most favorable to him show that         On the other hand, a panel of this court held in an
a constitutional violation occurred. See Saucier v. Katz, 533      unpublished 1993 opinion that a prisoner failed to state a
U.S. 194, 201 (2001) (“In the course of determining whether        constitutional claim when she alleged that mail received from
a constitutional right was violated on the premises alleged, a     the courts had been opened outside of her presence. See
court might find it necessary to set forth principles which will   Meckley v. FCI Lexington Mailroom Staff, 1993 WL 187945
become the basis for a holding that a right is clearly             at *2 (6th Cir. 1993). In that case, a prisoner challenged the
established. This is the process for the law's elaboration from    constitutionality of applying to court mail the presumption
case to case, and it is one reason for our insisting upon          that all incoming mail can be opened unless it is marked with
turning to the existence or nonexistence of a constitutional       “Special Mail - Open only in the presence of the inmate.”
right as the first inquiry.”)                                      Adopting the reasoning of the Seventh Circuit in Martin, 830
                                                                   F.2d at 78-79, the panel in Meckley based its holding on the
   The second step of the inquiry is whether the violation,        assumption that court mail generally contains matters of
when it occurred, involved a clearly established constitutional    public record. Meckley, 1993 WL 187945 at *2.
right. All of Sallier’s claims in this case occurred on or
before February 5, 1996. At that point in time, this court had        Given this lack of clarity with regard to the status of
struggled with the issue of legal mail in our published            prisoner mail received from courts at the time that the
opinions in Knop, Lavado, and Muhammad. In Knop, a 1992            plaintiff’s mail was opened in this case, we conclude that the
decision, we noted that a prisoner’s right to receive mail is      defendants are entitled to qualified immunity from liability on
protected by the First Amendment and that the attorney-client      claims involving mail from the courts. Although there is
relationship is shielded from unwarranted intrusion in             language in Lavado and Mohammad suggesting that mail
criminal settings by the Sixth Amendment. 977 F.2d at 1012.        from a court is legal mail, the holding in Meckley, even
In 1993 in Lavado, when faced with a qualified immunity            though the opinion was unpublished, was directly to the
issue, we held that it was clearly established as of 1987 that     contrary. Furthermore, at the time Sallier’s mail was opened,
a prisoner’s mail could not be opened and read in an arbitrary     the Seventh Circuit had stated in widely-quoted dicta that
and capricious fashion. 992 F.2d at 610. Both parties and the      mail from courts was not “legal mail.” See Martin, 830 F.2d
court in Lavado referred to correspondence from the Eleventh       at 78-79. Nothing from the Supreme Court, or in our circuit
No. 01-1269                       Sallier v. Brooks, et al.    17    18   Sallier v. Brooks, et al.                   No. 01-1269

precedent, or from our sister circuits at the time clearly           IV. Failure to Grant Remittitur or a New Trial
established that mail from a court was protected as legal mail.
                                                                        We review a remittitur ruling for abuse of discretion. See
  Attorney mail is, of course, an altogether different story.        Gregory v. Shelby County, Tenn., 220 F.3d 433, 443 (6th Cir.
We had clearly indicated in Muhammed that attorney mail              2000). “A trial court is within its discretion in remitting a
was “legal mail” and that a prisoner is entitled to be present       verdict only when, after reviewing all evidence in the light
when his attorney mail is opened. Indeed, the defendants             most favorable to the awardee, it is convinced that the verdict
concede, although arguing that the law with regard to “legal         is clearly excessive, resulted from passion, bias or prejudice;
mail” is generally unclear, that “the most that can be said is       or is so excessive or inadequate as to shock the judicial
that attorney mail was clearly established as legal mail.”           conscience of the court.” Id. We find that the jury award in
                                                                     this case, $750 in compensatory damages and $250 in
   This analysis brings us to the third step of the qualified        punitive damages for each of the three claims properly
immunity: whether Sallier has offered sufficient evidence to         submitted, is not clearly excessive, does not show the jury
indicate that the defendants’ actions were objectively               acted from passion, bias, or prejudice, and does not shock our
unreasonable in light of the clearly established constitutional      judicial conscience.
rights. In all three claims involving mail from counsel, the
defendants listed the letters on the legal mail log as legal mail.     We likewise review the denial of a motion for a new trial
They simply failed to follow established procedures requiring        for abuse of discretion. See Barnes v. Owens-Corning, 201
Sallier’s presence before the letters were opened. Such a            F.3d 815, 820 (6th Cir. 2000). When the new trial motion is
failure, after recognition of the letters as protected legal mail,   based upon a challenge to jury instructions, we must evaluate
is objectively unreasonable, and we conclude that the                the jury instructions to determine whether, taken as a whole,
defendants are not entitled to qualified immunity on these           they were misleading or provided an inadequate
three claims.                                                        understanding of the law. See Bowman v. Koch Transfer Co.,
                                                                     862 F.2d 1257, 1263 (6th Cir. 1988). The defendants first
   In sum, the defendants are entitled to qualified immunity         argue that the legal mail instruction was in error. We agree
for Claims O through T because it was not clearly established        and, as stated above, find that the court should have
at the time that mail from the courts was protected legal mail,      determined which letters were legal mail and submitted only
and the district court erred in holding to the contrary.             those claims to the jury. As for the rest of the defendants’
Accordingly, Claims O through T should not have been                 complaints concerning the jury instructions – namely, those
submitted to the jury, and the jury verdict on those claims          related to specific intent, prior convictions, and government
must be vacated. However, the defendants are not entitled to         witnesses, as well as the contention that the district court
qualified immunity for Claims I, K, and M; those claims were         should have used a special verdict form with separate sections
properly submitted to the jury for a determination on the            for the two defendants – we find no error. When taken as a
factual question of whether the letters in question were             whole, the jury instructions, with the exception of the legal
opened by the defendants outside of Sallier’s presence. The          mail instruction, were not misleading and did not provide an
jury’s verdict on Claims I, K, and M is therefore affirmed.          inadequate understanding of the law.
                                                                       The defendants also argued for a new trial based on
                                                                     evidentiary rulings involving hearsay and the best evidence
No. 01-1269                     Sallier v. Brooks, et al.   19

rule. After a careful review of the record, we cannot say that
the district court abused its discretion in denying the motion
for a new trial that challenged these rulings.
                      CONCLUSION
   For the reasons set out above, the jury verdict on Claims A
through H, J, L, and N through T is set aside, and the
judgment in the plaintiff’s favor on those claims is
REVERSED; the jury verdict on Claims I, K, and M is
sustained, and the judgment in the plaintiff’s favor on those
claims, for a total of $3,000, is AFFIRMED; and the award of
attorneys fees, which, pursuant to 42 U.S.C. § 1997e(d)(2),
cannot exceed 150 percent of the judgment, is hereby reduced
to $4,500.
