
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 92-2230                                    WESTON J. STOW,                                Plaintiff, Appellant,                                          v.                               SUSAN GRIMALDI, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ____________________            Weston J. Stow on brief pro se.            ______________            Jeffrey  R. Howard,  Attorney General,  and William  C.  McCallum,            __________________                          _____________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                     May 27, 1993                                 ____________________                      Per Curiam.   Plaintiff appeals from the  dismissal                      __________            of his action as frivolous.  We affirm.                                          I.                                          _                      Plaintiff, an inmate at New Hampshire State Prison,            filed a  civil rights action seeking declaratory, injunctive,            and  damages  relief  for  two  instances  when  he  was  not            permitted by prison regulations to send sealed letters to the                                                    ______            Liberty University School  of Lifelong  Learning in  postage-            prepaid envelopes supplied by  the university.  The envelopes            contained plaintiff's request to enroll in summer classes and            plaintiff's grades for the  previous semesters.  While prison            regulations allowed sealed letters  to be sent to any  of ten            listed  persons or entities (e.g., president, vice-president,                                         ____            federal  or   state  courts)  --  all   other  outgoing  mail            presumably had  to be sent  in unsealed  envelopes for  ready            inspection --  schools and universities were  not included on            the privileged  list.1  Nevertheless,  plaintiff claimed that                                            ____________________            1.  According   to   plaintiff,  the   challenged  regulation            provided as follows:                 Privileged Correspondence                 1.   Correspondence  between a resident and a privileged                      correspondent  will  not  ordinarily be  inspected.                      However,  it may be  opened in the  presence of the                      resident  when considered  necessary to  insure the                      authenticity of the  correspondent or to check  for                      contraband.   In any  case, it  will not  be opened                      outside the  presence  of the  resident unless  the                      item  has  specifically  waived this  privilege  in                      writing.  Mail in privileged status must be clearly                      addressed  to or received from  one of the ten (10)                                         -2-            his mail should be considered privileged because it contained            plaintiff's   grades,  a  personal   matter.    After  prison            officials  refused   plaintiff's  request  and   required  an            unsealed   mailing,  plaintiff   filed  the   present  action            challenging the prison mail  policy and the prison officials'            actions  as  violative of  the  constitution  and the  Family            Educationaland Privacy Rights Act of 1974, 20 U.S.C.   1232g.                                            ____________________                      privileged classifications in this PPD.                 2.   The  following is  a complete  list of  agencies or                      individuals   classified   as  privileged.     Mail                      addressed  as  indicated  will not  be  opened  for                      inspection  except in  the resident's  presence and                      may be sealed before deposit in the mail collection                      boxes.   Addresses marked with  a *, do not require                      postage.                      a.  President of the United States, Washington, DC                      b.      Vice-President   of   the   United  States,            Washington,             DC                      c.  Members of Congress addressed to appropriate                           office                      d.  The Attorney General of the United States and                           regional offices of the Attorney General                      e.  Federal or State Courts*                      f.  The Governor and Council of the State of New                           Hampshire, State House, Concord, NH 03301*                      g.  The Attorney General of the State of New                               Hampshire,  State  House  Annex,   Concord,  NH            03301*                      h.  Commissioner of the Department of Corrections*                      i.  Members of the State Parole Board*                      k.  County Attorneys per warden                                         -3-                      Concluding that plaintiff had  no right to send his            college  transcripts in sealed  envelopes, a magistrate judge            recommended that  the complaint  be dismissed.   The district            court agreed, and plaintiff has now appealed.                                         II.                                         __                      The     censorship2     of    outgoing     prisoner            correspondence "is  justified if  the following  criteria are            met":                      First,  the  regulation  or  practice  in                      question  must  further  an important  or                      substantial     governmental     interest                      unrelated    to   the    suppression   of                      expression.    Prison  officials may  not                      censor  inmate  correspondence simply  to                      eliminate   unflattering   or   unwelcome                      opinions    or    factually    inaccurate                      statements.   Rather, they must show that                      a regulation  authorizing mail censorship                      furthers  one or more  of the substantial                      governmental   interests   of   security,                      order, and rehabilitation.   Second,  the                      limitation  of  First Amendment  freedoms                      must  be no greater  than is necessary or                      essential  to  the   protection  of   the                      particular      governmental     interest                      involved.  Thus  a restriction on  inmate                      correspondence that furthers an important                      or   substantial    interest   of   penal                      administration   will   nevertheless   be                      invalid  if  its  sweep is  unnecessarily                      broad.   This does  not mean,  of course,                      that   prison   administrators   may   be                      required  to  show  with  certainty  that                      adverse consequences would flow  from the                                            ____________________            2.  We will  assume without  deciding that the  inspection of                                                            __________            plaintiff's mail  constitutes censorship.   But see  Royse v.                                          __________    ___ ___  _____            Superior  Court of the State of Washington, 779 F.2d 573 (9th            __________________________________________            Cir.  1986)  (inspection  for  contraband  of  mail  sent  by            prisoners to  state court does not  constitute censorship and            does not violate the constitution).                                         -4-                      failure  to  censor a  particular letter.                      Some   latitude   in   anticipating   the                      probable consequences of allowing certain                      speech   in   a  prison   environment  is                      essential to  the proper discharge  of an                      administrator's duty.  But any regulation                      or   practice   that   restricts   inmate                      correspondence    must    be    generally                      necessary to protect one  or more of  the                      legitimate     governmental     interests                      identified above.            Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).  See also            _________    ________                                ___ ____            Thornburgh  v. Abbott,  490  U.S. 401,  413 (1989)  (Martinez            __________     ______                                ________            standard  applies  when  assessing the  constitutionality  of            regulations    concerning   outgoing    correspondence,   but            regulation of  incoming mail  is subject to  more deferential            reasonableness standard).                      The  challenged New Hampshire State Prison practice            of requiring non-privileged outgoing mail to be submitted for            inspection  in  unsealed  envelopes satisfies  both  Martinez                                                                 ________            criteria.     First,  the   practice  furthers  an  important            governmental interest -- security.  As the  Supreme Court has            recognized,   ["p]erhaps   the   most  obvious   example   of            justifiable censorship  of prisoner mail would  be refusal to            send  . .  . letters  concerning  escape plans  or containing            other  information  concerning  proposed criminal  activity."            Procunier v.  Martinez, 416  U.S.  at 413.   Plaintiff  would            _________     ________            argue  that his  mail, directed  to a  school in  an envelope            supplied by the school, presented no security problem because            escape  or criminal  activity plans  could not  fruitfully be                                         -5-            transmitted  in this manner.   Plaintiff is wrong.   Were the            institution  not a legitimate  one or were  the school's mail            room employee  in cahoots with  plaintiff, security  concerns            could well be implicated.                      Plaintiff  argues  that   inspection  of   outgoing            correspondence cannot  rationally be justified as  a security            measure given,  plaintiff says, that prison  officials do not            monitor  prisoners'  telephone  calls  or  conversations with            visitors,  means  by which  prisoners  could  just as  easily            communicate escape plans.   Plaintiff  cites to  a number  of            older cases  which employed  such reasoning in  striking down            outgoing mail inspection practices.   We, however, rejected a            similar argument in Feeley v. Sampson, 570 F.2d 364, 374 (1st                                ______    _______            Cir.  1978).   There, the  district court  had reasoned  that            "because detainees' visits went unmonitored,  escape plans or            contraband  `drops'  could  be  plotted  regardless   of  any            surveillance   of   correspondence,"   and   concluded   that            inspection of  outgoing mail could therefore not be upheld on            security  grounds.  Id. at  374.  We  rejected that reasoning                                ___            and concluded, in substance,  that unmonitored mail increased            prisoners' opportunities for plotting escape and consequently            surveillance was justified as a security measure.  We  adhere            to that position.                      The   second   Martinez   requirement,   that   the                                     ________            limitation  be no greater than  necessary, is also  met.  The                                         -6-            limitation is fairly minimal -- plaintiff can correspond with            the school provided  he allows prison officials to  check the            correspondence  -- and  there is  no other  way to  determine            whether escape  plans or  other proscribable matter  is being            sent except  by looking  at the correspondence.   Plaintiff's            constitutional rights  were not violated.   See United States                                                        ___ _____________            v.  Whalen, 940  F.2d  1027, 1035  (7th  Cir.) ("it  is  well                ______            established that  prisons have sound reasons  for reading the            outgoing mail  of their inmates"),  cert. denied, 112  S. Ct.                                                ____________            403 (1991); Gaines  v. Lane,  790 F.2d 1299,  1304 (7th  Cir.                        ______     ____            1986)  (inspection of  non-privileged outgoing mail  does not            violate prisoners'  First Amendment rights); United States v.                                                         _____________            Kelton, 791 F.2d 101  (8th Cir.) (prisoner's Fourth Amendment            ______            rights  not  violated  by prison  official's  inspection  and            copying of prisoner's outgoing  mail), cert. denied, 479 U.S.                                                   ____________            989 (1986).                      Nor  were  plaintiff's  rights  under   the  Family            Educational  and  Privacy  Rights  Act, 20  U.S.C.     1232g,            violated.  Nothing in  that Act requires prison  officials to            take plaintiff's word that the envelope contained transcripts            and accept the sealed mailing.                      Affirmed.                      ________                                         -7-
