While Plaintiff acknowledges that prison officials advised him of the reasons for his placement on restricted general correspondence and of the administrative remedy procedures, he claims that he was not given an opportunity to respond orally or in writing to the change of classification as required by 28 C.F.R. § 540.14(c)(2)(ii).We find this contention inconsistent with Plaintiff's statement that he exhausted all his administrative remedies in challenging his placement on restricted general correspondence. See Plaintiff's Affidavit, attached to Cross-Motion for Summary Judgment, filed September 26, 1980. Therefore, we conclude that Defendants fully complied with Fifth Amendment due process requirements in placing Plaintiff on restricted general correspondence.
C. Access To The Courts
In Bounds v. Smith , 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d m2 (1977), the Supreme Court declared that "[i]t is now established beyond doubt that prisoners have a constitutional right of access to the courts." Id . at 821, 97 S. Ct. at 1493. Regulations and practices that impede such access are invalid. See Bryan v. Werner , 516 F.2d 233, 236 (3d Cir. 1975). In this action, Plaintiff presents this court with a novel issue involving this constitutional right, whether prison officials' refusal to mail legal notices, required by Rule 5 of the Federal Rules of Civil Procedure, to defendants-jurors in civil action 79-4382 constituted a denial of access to the courts.
Plaintiff contends that these notices fall within the category of "legal mail", which prison officials cannot alter or refuse to mail. See Bryan v. Werner , 516 F.2d at 239. Clearly, these notices directed to defendant-jurors do not constitute "special mail"1o under Bureau of Prison guidelines. Pursuant to these regulations, prison officials may not inspect outgoing special mail. 28 C.F.R. § 540.17(c). We do not believe that such special treatment should be accorded a letter addressed to a member of the public even though it is marked "legal mail". Otherwise, all prisoners could use this guise to harass members of the public and to transmit information concerning attempted escapes or plans to commit illegal activities.
Therefore, prison officials do have a valid reason for opening such mail to insure that its content does not adversely affect prison order or security.
With respect to the refusal of Defendants to mail these legal notices, we rule strictly on the facts of this case in reaching our conclusion that Plaintiff was not deprived of his constitutional right of access to the courts. Although Plaintiff was warned on several occasions prior to Defendants' enforcement of the restriction that documents in his civil action could not be filed without proof of service on all defendants or their attorneys, that case was not dismissed on that ground. Rather, the court made a determination based upon the legal considerations in that action. See Intersimone v. Bell , Civil No. 79-4382 (S.D.N.Y. filed July 10, 1980), appeal pending . Furthermore, Plaintiff does not claim that his motion to add additional defendants was refused by his failure to serve defendant-juror Thelma Davis. While we alert prison officials that they must act with caution when refusing to mail a notice of the filing of a legal document, it is clear that Defendants' practices and acts in this case did not impede Plaintiff's access to the courts.
D. Cruel and Unusual Punishment Claim
"In determining whether conduct or conditions such as those complained of here violate the Eighth Amendment, the basic test is whether the conduct is of such a character as to violate fundamental fairness or as to shock the conscience as measured by evolving standards of contemporary society." Pifcho v. Brewer , 77 F.R.D. 356, 358 (M.D.Pa.1977) (Nealon, C.J.), citing Trop v. Dulles , 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). See Howell v. Cataldi , 464 F.2d 272 (3d Cir. 1972). On the basis of this test, we find no support for Plaintiff's contention that his placement on restricted general correspondence and subsequent disciplinary actions against him constituted cruel and unusual punishment. Defendants' conduct was neither shocking nor violative of fundamental fairness.
Since we have concluded that Defendants' use of "restricted general correspondence" status as applied to the Plaintiff, was an unreasonable and arbitrary infringement of his First Amendment rights we will grant in part this cross-motion for summary judgment with respect to his request for injunctive relief. This will in no way authorize or permit the Plaintiff to correspond with the jurors who tried his criminal case. The issue of damages is not before us at this time.
We will enjoin the Defendants from continuing Plaintiff or placing him in the future on "restricted general correspondence" without just cause and without appropriate due process procedures.