regulations allow an inmate's incoming correspondence to be
opened, read and copied outside the presence of the inmate
unless "the sender is adequately identified on the envelope, and
the front of the envelope is marked "Special Mail — Open only in
the presence of the inmate."" 28 C.F.R. § 540.18(a). If the
envelope is so marked, it may be opened only in the presence of
the inmate and may not be read by prison officials. Id.
Inmates are responsible for advising their lawyers that
correspondence will be handled as "special mail" only if the
envelope is marked with the attorney's name and an indication
that the person is an attorney, and if the front of the envelope
is marked "Special Mail — Open only in the presence of the
inmate." 28 C.F.R. § 540.19(b). Typically, attorneys
representing prisoners and concerned about the privileged nature
of their communications with their clients will both identify
themselves as an attorney on the envelope and include the magic
words "Special Mail — Open only in the presence of the inmate."
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, however, that such orders, responses and
files are publicly available and they are as open to prison
officials as to any other member of the public.
The crux of plaintiffs argument is that by allowing prison
officials to review and copy an inmate's mail received from a
court, those officials have a basis for retaliating against the
inmate and inmates have a reasonable expectation that officials
will retaliate against them. In addressing a facial challenge
to the constitutionality of a regulation, however, the Court
does not assume that officials charged with complying with those
regulations will violate the law. If retaliation occurs,
plaintiff can raise such a claim in the district in which it
Because the Bureau of Prisons policy concerning incoming mail
received from a
court does not infringe any constitutional right of plaintiff,
defendants' motion for summary judgment will be granted. An
appropriate Order accompanies this Memorandum Opinion.
ORDER AND JUDGMENT
For the reasons set forth in the accompanying Memorandum
Opinion, it is here by
ORDERED that defendants' motion for summary judgment [# 31] is
GRANTED and plaintiffs motions for summary judgment [# 30, #
38-3] are DENIED; it is
FURTHER ORDERED that plaintiffs motions for a stay and for
appointment of counsel [# 38-2, # 38-4] are DENIED; and it is
FURTHER ORDERED that JUDGMENT is entered in favor of
defendant. Any other pending motions are denied as moot. This is
a final appealable order. See Fed.R.App.P. 4(a).