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March 31, 2000


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 envelope.


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 13.

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 (1974), 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 threatened).

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 Court disagrees.

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, ...

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