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THORNLEY v. EDWARDS

March 20, 1987

Ronald Thornley, Plaintiff
v.
C. R. Edwards, Warden, U.S.P., Lewisburg, PA, Defendant



The opinion of the court was delivered by: NEALON

Chief Judge William J. Nealon.

 MEMORANDUM AND ORDER

 Ronald Thornley, a prisoner at the U.S. Penitentiary at Lewisburg, PA (Lewisburg), filed a Request for Mandamus and a request to proceed in forma pauperis on October 22, 1986. Thornley alleged that prison officials "on a daily basis, open [outside the presence of the addressee/inmate] all incoming mail, clearly marked as originating from United States Courts, State and Municipal Courts, United States Department of Justice, and Department of State Attorney Generals." Document 1 of the record at p. 2. He further asserted that legal mail is opened by an automatic device which at times damages the envelope's contents. He requested injunctive relief compelling prison officials to cease this practice.

 Magistrate Joseph F. Cimini filed a Report in this case on January 9, 1987. He recommended that on the basis of financial information submitted, Thornley be permitted to proceed in forma pauperis. After noting that Thornley has exhausted his administrative remedies and that the court has jurisdiction over this matter under 28 U.S.C. § 1361, the Magistrate recommended summary dismissal of the action. He concluded that Thornley's mandamus request is frivolous as a matter of law in light of the regulations set forth at 28 C.F.R. §§ 540.18 and 540.19. On January 26, 1987, Thornley filed Exceptions in which he argued that the opening of his legal mail outside his presence violates his constitutional right of free access to the courts.

 For the reasons set forth below, the court determines that Thornley's allegation that prison officials open his legal mail outside his presence states a colorable violation of his sixth amendment right of free access to the courts. This case will be remanded to Magistrate Cimini to determine, by a rule to show cause or otherwise, whether any factual disputes exist and to recommend a proper disposition.

 ANALYSIS

 The relevant regulations of the Bureau of Prisons, 28 C.F.R. §§ 540.18 and 540.19, read as follows:

 
§ 540.18 Special mail.
 
(a) The Warden shall open incoming special mail only in the presence of the inmate for inspection for physical contraband and the qualification of any enclosures as special mail. The correspondence may not be read or copied if 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."
 
(b) In the absence of either adequate identification or the "special mail" marking indicated in paragraph (a) of this section appearing on the envelope, staff may treat the mail as general correspondence and may open, inspect and read the mail. . . .
 
§ 540.19 Legal correspondence.
 
(a) Staff shall mark each envelope of incoming mail (mail from courts or attorneys) to show the date and time of receipt, the date and time the letter is delivered to an inmate and opened in the inmate's presence, and the name of the staff member who delivered the letter. The inmate may be asked to sign as receiving the incoming legal mail. This paragraph applies only if the sender has marked the envelope as specified in § 540.18.
 
(b) The inmate is responsible for advising any attorney 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 the front of the envelope is marked "Special Mail -- Open only in the presence of the inmate." Legal mail shall be opened in accordance with special mail procedures (see § 540.18).
 
(c) Grounds for the limitation or denial of an attorney's correspondence rights or privileges are stated in Part 543, Subpart B. If such action is taken, the Warden shall give written ...

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