The opinion of the court was delivered by: Paul L. Friedman, District Judge.
This matter is before the Court on the parties' cross-motions
for summary judgment concerning the constitutionality of the
Bureau of Prisons' regulation governing the handling of incoming
mail received from a court. Plaintiffs appointed counsel briefed
this issue, but was then removed by plaintiff who is now
pursuing this action pro se. Having reviewed the cross-motions
and the entire record herein, the Court will grant defendants'
motion and deny plaintiff's.
Zack McCain is a federal prisoner who has filed at least three
prior civil actions pro se in federal courts in Georgia and
Colorado. During the course of litigating those cases, Mr.
McCain received copies of court orders and other correspondence
from the Clerk's Offices of those federal courts, and such
correspondence was opened outside of Mr. McCain's presence. The
envelopes containing this correspondence bore the printed return
address of the Clerk of the United States District Court, but
did not bear any other markings concerning the contents of the
Plaintiffs filings arguably raise an assortment of claims, but
the Court will address only plaintiffs facial challenge to the
constitutionality of the BOP's mail handling regulations as they
relate to mail received from a court that does not contain the
"Special Mail" marking. Any claims related to the handling of
specific pieces of mail by prison officials or the application
of the BOP's mail handling regulations to plaintiff are claims
that must be addressed initially by local prison authorities
and, once exhausted, may only be pursued in the district where
the acts occurred. Plaintiff concedes that this action is so
limited. See Plaintiffs Opposition to Defendants' Motion, at
Plaintiff argues that the BOP's handling of incoming mail from
a court is unconstitutional because it is not "reasonably
related to legitimate penological interests." Turner v.
Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).
The Turner test, however, applies only to regulations that
impinge on an inmate's constitutional rights. Plaintiffs
argument largely assumes that he has a constitutional right to
receive correspondence from a court unopened. The regulations at
issue do not prohibit prisoners from receiving correspondence,
as was the case in Turner v. Safley, 482 U.S. at 91-93,
107 S.Ct. 2254, nor do they allow prison officials to withhold or
otherwise censor such correspondence, as in Procunier v.
Martinez, 416 U.S. 396, 413-14, 94 S.Ct. 1800, 40 L.Ed.2d 224
overruled in part Thornburgh v. Abbott, 490 U.S. 401, 413,
109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). It therefore is difficult to
discern the constitutional implications for the opening of mail
from a court outside the presence of the prisoner.
Several constitutional rights conceivably could be at issue.
In Wolff v. McDonnell 418 U.S. 539, 575-76, 94 S.Ct. 2963,
41 L.Ed.2d 935 (1974), the Supreme Court considered a prisoner's
claim against a Nebraska state prison policy permitting the
opening of incoming mail from an attorney by prison officials in
the presence of the prisoner. The Court expressed doubt that
such a policy infringed the prisoner's First, Sixth or
Fourteenth Amendment rights because "the constitutional status
of the rights asserted, as applied in this situation, is far
from clear." The Court upheld the constitutionality of the mail
policy regardless of "which, if any, of the asserted rights are
operative here." Wolff v. McDonnell, 418 U.S. at 576-77,
94 S.Ct. 2963. It held that "by acceding to a rule whereby the
inmate is present when mail from attorneys is inspected, [prison
officials] have done all, and perhaps even more, than the
Constitution requires." Id. See Deutsch v. United States Dep't
of Justice, 881 F. Supp. 49, 54 (D.C. 1995) (citing Lavado v.
Keohane, 992 F.2d 601, 607 (6th Cir. 1993)) ("[p]rison
officials may open an inmate's mail pursuant to uniform and
evenly applied policy in order to maintain prison security");
see also Gaines v. Lane, 790 F.2d 1299, 1305-06 (7th Cir.
1986) (censorship of mail permitted only when prison security
Plaintiff seeks to distinguish Wolff and the attorney-client
correspondence cases because judges, clerks and other court
personnel rarely, if ever, include the marking "Special
Mail-Open only in the presence of the inmate" on the outside of
their envelopes. Plaintiff challenges the constitutionality of
the Bureau of Prisons' regulations, already found constitutional
in Wolff, because of the courts' failure to include the
special marking on the outside of its envelopes. Even without
this designation, he maintains, it is still "legal mail"
entitled to protection.
Courts could, of course, affix the required markings to their
envelopes, see Martin v. Brewer, 830 F.2d 76, 78 (7th Cir.
1987), with or without a request from a prisoner, or the Bureau
of Prisons could in its discretion treat correspondence from the
Clerk's Office as "legal mail" subject to the protections
offered by the regulations, even in the absence of the special
mail marking. See Prows v. United States Dep't of Justice, No.
89-2929(LFO) 1991 WL 111459 (D.C. June 13, 1991). The question
here is not whether the Bureau of Prisons could treat all mail
from a court Clerk's Office as "legal mail," but whether the
Constitution requires the Bureau of Prisons to treat all mail
from a court Clerk's Office in the same manner as it treats
attorney-client correspondence. This Court concludes that the
relationship of a court with a prisoner does not raise the same
concerns about privilege and confidentiality as does the
relationship between a prisoner and his or her lawyer.
Consequently, the contents of mail from a court need not be
accorded the same protections given to the contents of mail from
a prisoner's attorney.*fn2
Plaintiff next suggests, without support, that the Bureau of
Prisons' regulations infringe on an inmate's First Amendment
right of access to the courts. In order to bring a civil rights
action for violation of access to the courts, however, a
prisoner must show that an actionable claim has been lost,
rejected or prevented from being presented. See Lewis v.
Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 135 L.Ed.2d 606
(1996) (citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491,
52 L.Ed.2d 72 (1977)). There is nothing about a prison policy
that permits opening incoming mail from a court that would
result in an actionable claim being lost or rejected.*fn3
Plaintiff presumably argues that his right to file an actionable
claim is "chilled" by a policy that permits prison officials the
unfettered right to open and copy mail received from courts. The
First, because actionable claims protected by the First
Amendment are only those that involve an inmate's freedom or
conditions of confinement, see Lewis v. Casey, 518 U.S. at
355, 116 S.Ct. 2174, copies of orders and notices sent by courts
generally also will be addressed to the named defendants or
respondents in the action — usually the inmate's warden or other
prison officials or their supervisors or employers. While this
may, in some sense, "chill" an individual prisoner's desire to
bring such a claim, the Federal Rules of Civil Procedure
themselves require that all defendants receive copies of all
court orders, even when the defendants are prison officials.
See Rule 77(d), Fed.R.Civ.P. In any event, plaintiff has not
established that the regulations have resulted in his denial of
access for any actionable claims.*fn4
Second, because mail sent by courts is almost always public
information, filed on the public docket, prisoners should not be
reasonably reluctant to file actionable claims. See Martin v.
Brewer, 830 F.2d at 78-79 (correspondence from a court is not
privileged and inmates could not be hurt by having prison
officials read mail); Watson v. Cain, 846 F. Supp. 621, 628
(N.D.Ill. 1993) (same).*fn5 Plaintiff discounts this fact as
"unrealistic" because prison officials are not likely to review
court files and would not know of court orders unless delivered
to them. The fact is, ...