                       United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 96-1022
                                ___________

Clyde Weiler,                        *
                                     *
           Appellee,                 *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
James Purkett; Leah Embly,           *
                                     *
           Appellants.               *
                                ___________

                             Submitted: September 9, 1997
                                 Filed: March 2, 1998
                                ___________

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, McMILLIAN, JOHN R. GIBSON,
      FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
      and MURPHY, Circuit Judges, en banc.
                               ___________

BEAM, Circuit Judge.

      In this six-year-old section 1983 lawsuit, Clyde Weiler asserts that
the defendants, prison officials at the Farmington, Missouri Correctional
Facility, violated his constitutional rights when they refused to deliver
a package to him that did not conform to prison regulations. A panel of
this court affirmed the district court's denial of summary judgment based
on qualified immunity. Our decision to grant en banc review vacated that
opinion. See Weiler v. Purkett, 104 F.3d 149 (8th Cir. 1997). We now
reverse.
I.    BACKGROUND

      This case involves two rules regarding inmate mail within the
Missouri state prison system. One allows inmates to receive packages only,
with certain limited exceptions not relevant here, from attorneys and
approved vendors.    A second regulation affords special treatment for
"privileged mail" but limits that category to correspondence to or from
judges, attorneys, courts, or government officials. On September 11, 1991,
the Farmington, Missouri Correctional Center (Farmington) received a
package addressed to inmate Clyde Weiler. Interpreted in the light most
favorable to Weiler, the record indicates that the package was marked
"legal materials" and the sender was Weiler's son, who is not a judge,
attorney, or governmental official. Leah Embly, the mailroom supervisor,
did not deliver the package because it was neither privileged mail nor from
an approved vendor.      Instead, she delivered a "contraband receipt"
informing Weiler that a nonconforming package addressed to him had been
received, and requesting directions on how he wished to have the property
dispatched.1     Weiler sued Embly and James Purkett, the prison
superintendent, under 42 U.S.C. § 1983, seeking six million dollars in
damages.2

      Defendants moved for summary judgment, claiming qualified immunity.
In opposition, Weiler filed an affidavit signed by ten inmates asserting
that they had received packages from family members containing legal
materials. The district court granted the defendants' motion for summary
judgment. Weiler appealed. A divided




      1
        Farmington regulations provide that an inmate who has been mailed contraband
may pay to have the item mailed to another party, may send the property out with a
visitor, or may direct the mailroom to donate the property to charity or to destroy the
offending item. When Weiler did not respond, the package was destroyed.
      2
       When Weiler discovered that the package had been destroyed, he filed a second
suit against these defendants and their counsel. That suit was consolidated with this
one in Weiler v. Purkett, Nos. 94-1665/93-2041, 1995 WL 21660, at *2 (8th Cir. 1995)
(per curiam).

                                          -2-
panel of this court reversed, holding that the affidavit created a question
of fact as to the legitimacy of the regulations. Weiler v. Purkett, Nos.
94-1665/93-2041, 1995 WL 21660 (8th Cir. 1995) (per curiam) (Weiler I).

      On remand, defendants supplemented the record with evidence that they
were not aware of irregularities in the application of the mail procedure.
They again moved for summary judgment based on qualified immunity, arguing
that isolated misapplication of regulations by other corrections employees
does not render the rules themselves invalid. The district court denied
the motion. Defendants appeal.

II.   DISCUSSION

      Qualified immunity shields government actors from suit when,      "a
reasonable officer could have believed [the challenged act] to be lawful,
in light of clearly established law and the information the [defendant]s
possessed." Anderson v. Creighton, 483 U.S. 635, 641 (1987). The Supreme
Court recently reiterated the importance of qualified immunity in
"protecting government's ability to perform its traditional functions by
providing immunity where necessary to preserve the ability of government
officials to serve the public good or to ensure that talented candidates
[are] not deterred by the threat of damages suits from entering public
service." Richardson v. McKnight, 117 S. Ct. 2100, 2105 (1997) (quotations
omitted).

       In determining an official's entitlement to immunity, the courts
undertake a two-pronged analysis.       First, the court must see if a
deprivation of constitutional magnitude has been alleged. If so, the court
must determine if that right was so clearly established that a reasonable
public official would have known his or her conduct violated the
Constitution at the time of the act. We consider each question in turn.




                                    -3-
     A.    Allegation of a Constitutional Right

      "A necessary concomitant to the determination of whether the
constitutional right asserted . . . is 'clearly established' at the time
the defendant acted is the determination of whether the plaintiff has
asserted a violation of a constitutional right at all." Siegert v. Gilley,
500 U.S. 226, 232 (1991). The first step in this process is critical
because resolution "of this purely legal question permits courts
expeditiously to weed out suits which fail the test." Id. In this case,
despite six years of litigation, including numerous submissions to the
district court and three different arguments to this court, it is still not
exactly clear what constitutional right Weiler seeks to vindicate. He has,
at various times, claimed interference with his right to receive mail,
obstruction of his right of access to the courts, violation of substantive
due process, and denial of equal protection of the laws. Weiler has also
maintained at times that the regulations themselves are invalid and at
other times that the facially valid regulations were only unconstitutional
as applied to him. None of these assorted allegations, however, withstands
careful scrutiny.

           1.    Right to Receive Mail

      The district court held that Weiler had alleged a violation of his
First Amendment right to receive mail.   Although it is well settled that
inmates have a right to receive mail, that right may be limited by prison
regulations that are reasonably related to legitimate penological
interests. Turner v. Safley, 482 U.S. 78, 92 & 89 (1987).

      It is clear that a regulation limiting the receipt of packages is not
facially invalid. In Bell v. Wolfish, 441 U.S. 520, 555 (1979), the
Supreme Court approved a total ban on the receipt of packages containing
food or personal property except for one package of food at Christmas,
saying, it is "all too obvious that such packages are handy devices for the
smuggling of contraband.”




                                    -4-
      The next question is whether the regulation violated the Constitution
as applied to Weiler. As earlier noted, Weiler filed an affidavit of ten
Farmington inmates claiming that on unspecified dates under unstated
circumstances from unidentified mailroom personnel each of them had
received legal papers and transcripts from “family or friends.” Applying
Griffin v. Lombardi, 946 F.2d 604 (8th Cir. 1991), the district court,
relying on our opinion in Weiler I, held that this affidavit was sufficient
to subject a package regulation that otherwise passes constitutional muster
under Supreme Court edict to “factual” uncertainty as to its
reasonableness. This rationale simply misapplies Griffin and the law of
this circuit.

      Whether the ten inmates did or did not receive legal papers mailed
by relatives and friends does not control whether the regulation was
invalid as applied to Weiler. The ultimate legal question is whether this
rule is "reasonably related to legitimate penological interests." Turner,
482 U.S. at 89.

      We find it beyond dispute that packages may easily conceal
contraband, and that the control of contraband is a legitimate penological
interest. Thus, even if 100 inmates had received legal papers through a
breakdown in mailroom procedures, and were willing to so state by
affidavit, the reasonableness of legal mail or package regulations,
designed to control receipt of contraband to inmates, would be no less
constitutional. There is no evidence that the ten inmates who received
packages in contravention of prison rules also did not receive contraband
concealed in those packages. Given the great deference we owe to prison
authorities in their administration of state prison systems, id. at 85, we
cannot say that this regulation is an exaggerated response to the prison's
security concerns.     Therefore, the defendants did not violate the
Constitution when they applied the rule to Weiler. Weiler has not alleged
a violation of his constitutional right to receive mail.




                                    -5-
             2.     Right of Access to the Courts

      A prison policy that obstructs privileged inmate mail can violate
inmates' right of access to the courts. See, e.g., Jensen v. Klecker, 648
F.2d 1179, 1182-83 (8th Cir. 1981). Weiler, however, has not established
any interference with legal mail. The regulation defines legal mail as
correspondence from an attorney, judge or elected official. This type of
formulation has been expressly approved by the Supreme Court. Wolff v.
McDonnell, 418 U.S. 539, 576 (1974) ( "We think it entirely appropriate
that the State require [legal mail] to be specially marked as originating
from an attorney. . . ).      The Farmington rule, even more generous to
inmates than the Wolff requirements, passes constitutional muster as a
matter of law. Since the package came from a family member, not a person
or entity specified in the rule, it was not legal mail.3 Weiler has not
alleged a violation of his constitutional right of access to the courts.

             3.     Substantive Due Process

      Substantive due process prevents the government from engaging in
conduct that shocks the conscience or interferes with rights implicit in
the concept of ordered liberty. United States v. Salerno, 481 U.S. 739,
746 (1987).    There are two different ways of stating a substantive due
process claim. First, the state violates substantive due process when it
infringes “fundamental” liberty interests, without narrowly tailoring that
interference to serve a compelling state interest. Reno v. Flores, 507
U.S. 292, 301-02 (1993).     Second, the state violates substantive due
process when it engages in conduct that is so outrageous that it shocks the
conscience or otherwise offends "judicial notions of fairness, [or is]
offensive to human dignity.” Weimer v. Amen, 870 F.2d 1400, 1405




      3
        Weiler also failed to demonstrate any prejudice caused by the alleged
interference with his attempts to petition the judiciary, a necessary element to such a
claim. Berdella v. Delo, 972 F.2d 204, 210 (8th Cir. 1992).

                                          -6-
(8th Cir. 1989) (quotations omitted).   We have been wary of extending
substantive due process into new arenas. Brown v. Nix, 33 F.3d 951, 953
(8th Cir. 1994).

      Weiler has failed to allege either type of substantive due process
claim. First, whatever the precise definition of a fundamental right may
be, we are confident that Weiler has not been denied one here.          A
prisoner's entitlement to delivery of packages from family members is not
a right “rooted in the traditions and conscience of our people." Salerno,
481 U.S. at 751 (quotations omitted). Furthermore, Weiler has failed to
point to any outrageous conduct by defendants that shocks the conscious.
His burden is to establish that the government action complained of is
“truly irrational,” that is, “'something more than . . . arbitrary,
capricious, or in violation of state law.'” Chesterfield Dev. Corp. v.
City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992) (quoting Lemke
v. Cass County, Nebraska, 846 F.2d 469, 472 (8th Cir. 1987) (en banc)
(Arnold, J. concurring)).      The most that can be said of Weiler's
allegations here is that the defendants did not ensure that the package
rule was enforced without exception. Weiler has not alleged a violation
of his constitutional right to substantive due process.

           4.    Equal Protection

      The heart of an equal protection claim is that similarly situated
classes of inmates are treated differently, and that this difference in
treatment bears no rational relation to any legitimate penal interest.
Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir. 1990). The Supreme Court has
explained that “if a law neither burdens a fundamental right nor targets
a suspect class, we will uphold the legislative classification so long as
it bears a rational relation to some legitimate end.” Romer v. Evans, 116
S. Ct. 1620, 1627 (1996).

      Weiler has not identified any classification system by which the
defendants determined who would receive nonconforming packages and who
would not. A few




                                    -7-
individual examples of unequal treatment are “insufficient to provide more
than   minimal   support   to  an   inference   of  classwide   purposeful
discrimination.”    Inmates of Neb. Penal and Correctional Complex v.
Greenholtz, 567 F.2d 1368, 1381 (8th Cir. 1977). Weiler has presented no
evidence that any difference in treatment was motivated by his membership
in a protected class nor that it burdened a fundamental right. Weiler has
not alleged a violation of his constitutional right to equal protection.


     B.    Contours of the Right as "Clearly Established"

      Normally, a determination that the plaintiff has failed to allege a
violation of a constitutional right ends the qualified immunity inquiry.
See, e.g., Thomas v. Hungerford, 23 F.3d 1450, 1452-54 (8th Cir. 1994)
(defendants entitled to qualified immunity because no constitutional
violation alleged).    Even if this were not so, Weiler could not prevail
under the second prong of qualified immunity.

      The Supreme Court has directed courts to examine pre-existing law to
see if it would be apparent to reasonable officials that their actions
were unconstitutional. See Anderson, 483 U.S. at 640; Mitchell v. Forsyth,
472 U.S. 511, 530 (1985). Here, given the Supreme Court's holdings in
Turner, 482 U.S. at 89, Bell, 441 U.S. at 555, and Wolff, 418 U.S. at
576-77,    no reasonable official could have believed that refusing to
deliver Weiler's package to him violated clearly established constitutional
principles governing prisoner mail. Thus, even if Weiler had alleged a
transgression of constitutional magnitude, the defendants would still be
entitled to qualified immunity.

III. CONCLUSION

      The defendants are entitled to qualified immunity.    The district
court is reversed, and this case remanded for entry of judgment in favor
of the defendants.




                                    -8-
      JOHN R. GIBSON, Circuit Judge, with whom Heaney and McMillian,
Circuit Judges, join, dissenting.

      I respectfully dissent. The court today simply ignores the record
before the district court and principles restraining our review of motions
on summary judgment.
      This case presents a factual dispute relevant to whether the rule in
question is rationally related to a governmental interest that is
legitimate and neutral. See Turner v. Safley, 482 U.S. 78, 89-90 (1987).
Both the rationality of the rule and its neutrality are put into question
by the evidence Weiler has presented.

      Although the "rational relation" standard is appropriately
deferential to the judgment of prison administrators, it does not make the
prison officials' explanations for their actions the last and only word to
be considered on the subject. A prisoner can still prevail by showing
that a prison policy is "an exaggerated response to [stated] security
objectives," id. at 97-98, as did the prisoners challenging the marriage
regulations in Safley. One way of showing such an exaggerated response is
by showing that the prison officials have not thought it necessary to
impose the restriction on other similarly situated prisoners.           For
instance, in Safley, the stated reason for withholding approval of women
inmates' marriages was to promote rehabilitation by avoiding "dependency."
The rationality of that justification was rendered suspect by evidence that
the marriages of male inmates were routinely approved. The Supreme Court
stated, "That kind of lopsided rehabilitation concern cannot provide a
justification for the broad Missouri marriage rule."           Id. at 99.
Similarly, in Thornburgh v. Abbott, 490 U.S. 401, 417 n. 15 (1989), the
Court stated that claims of inconsistency in application of a rule went "to
the adequacy of the regulations as applied, and [should be] considered on
remand." In the same vein, we held that uneven application of rules raised
factual issues as to whether those rules were rationally related to
announced security concerns in Griffin v. Lombardi, 946 F.2d 604, 608 (8th
Cir. 1991), and Thongvanh v. Thalacker, 17 F.3d 256, 259 (8th Cir. 1994).
If the factual record in a




                                    -9-
case shows that the prison officials thought so little of the need for the
rule that they neglected to enforce it, their actions are relevant to the
issue of whether there was enough need to justify the rule's entrenchment
on the prisoner's (admittedly abridged) First Amendment rights.

      The record in this case contains both evidence of such neglect and
evidence that the rule was enforced. Weiler presented the affidavits of
ten inmates who said they had received legal papers from family or friends,
despite the existence of the rule under which Weiler's papers were
confiscated. The prison mail room supervisor, Leah Embly, and the prison
superintendent, James Purkett, submitted       affidavits that, to their
knowledge, "there has never been an exception made to those policies either
officially or unofficially." Weiler's side of the story, with permissible
inferences, would indicate that enforcement of the rule was arbitrary
rather than rational. See Thongvanh, 13 F.3d at 259. We cannot choose
between contradictory accounts on motion for summary judgment.

      The evidence of irregularity in enforcement is also relevant to the
neutrality of the rule as applied. If the rule is not enforced as written
but is occasionally invoked, one can infer that it is enforced according
to some other less neutral principle than that stated.

      The factual dispute about how this rule was applied should not be
resolved on motion for summary judgment.     Accordingly, I respectfully
dissent.

     A true copy.

           Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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