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Bieregu v. Reno

filed: July 11, 1995.


Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 94-2775).

Before: Mansmann, Scirica, and Sarokin, Circuit Judges.

Author: Sarokin


SAROKIN, Circuit Judge :

A prisoner brought this action pro se against prison officials, alleging that by repeatedly opening properly marked incoming legal mail outside of his presence, those officials had violated his constitutional rights.*fn1 Holding that defendants enjoyed qualified immunity because the law in this area was unsettled in our circuit, the district court granted summary judgment in favor of the officials. Plaintiff appeals.


The district court had jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

Plaintiff Polyns Bieregu is incarcerated at the federal prison in Fairton, New Jersey. He alleges that on numerous occasions and outside his presence, prison mailroom employees opened and read mail addressed to him from federal Judges, in violation of the Constitution, federal regulations, and internal Bureau of Prisons ("BOP") guidelines.

The federal regulatory framework for handling prisoner mail is straightforward. The regulations distinguish between incoming "general mail," which the Warden must open and inspect and may read, and incoming "special mail," which the Warden may open "only in the presence of the inmate for inspection for physical contraband and the qualification of any enclosures as special mail." 28 C.F.R. §§ 540.14(a), 540.18(a).*fn2 Special mail includes incoming mail from federal and state courts. § 540.2(c). In order to receive the special handling, incoming special mail must be marked "Special Mail - Open only in the presence of the inmate" and have a clearly identified sender. §§ 540.2(c), 540.18(a). According to a BOP Policy Statement, however, mail "from the chambers of a federal Judge . . . should be given special handling," even when it lacks the precise marking. Federal Bureau of Prisons, Program Statement No. 5265.08 (October 1, 1985), § 13(a). For convenience, we will refer to correspondence between an inmate and attorney as "attorney mail" and to correspondence between an inmate and a state or federal Judge, clerk's office, or other courthouse address as "court mail." We use the phrase "legal mail" as a general term including both attorney and court mail.

Plaintiff does not attack the general BOP scheme for handling mail, nor the specific authority of BOP employees to open incoming legal mail in his presence. Rather, plaintiff contends that in repeatedly opening court mail outside his presence, the mailroom employees violated his rights to "confidential and uncensored commications" [sic] and to "access to the court" under the First, Fourth, Sixth, and Fourteenth Amendments. As approved in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), plaintiff sues directly under the Constitution.

In response to defendants' motion for summary judgment, plaintiff supplied evidence that five pieces of mail from federal Judges were opened outside his presence within a three month period. The mail concerned civil proceedings to which plaintiff was a party. Plaintiff alleges further that on another occasion, the mailroom employees opened and damaged a scheduling order in a civil forfeiture proceeding. Bieregu claims that because the order was damaged, he failed to file a timely brief and his appeal was dismissed.

An internal review by the prison determined that on at least three of the five alleged occasions, mailroom employees did open plaintiff's properly marked legal mail outside his presence. The employees claim they did not read the mail and submitted affidavits denying they had opened it intentionally.

The district court concluded "we cannot say that a reasonable trier of fact would be compelled to find that defendants' actions were the result of mere negligence." Bieregu v. Reno, No. 94-2775, slip op. (D.N.J. Nov. 4, 1994), at 5. It went on to conclude that "a policy or practice of opening properly identified legal mail outside the presence of the inmate" is a constitutional violation. Id. at 9. Nevertheless, the court determined that because the law in this circuit is not clearly established as to whether such conduct rises to the level of a constitutional violation, the officials were entitled to qualified immunity.

Our review of a district court's grant of summary judgment is plenary. In re City of Philadelphia Litigation, 49 F.3d 945, 1995 WL 88161, * 15 (3d Cir. 1995). We consider whether there are genuine issues as to material facts and whether defendants are entitled to judgment as a matter of law. Id. ; Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). In so determining, we will resolve all reasonable doubts and draw all reasonable inferences in favor of the nonmoving party. Meyer v. Riegel Products Corp., 720 F.2d 303, 307, n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984).


By definition a sentence of imprisonment involves a loss of one's liberty, and by necessity a substantial loss of one's privacy. Yet confinement does not result in the forfeiture of all constitutional rights. Indeed, the closing of the prison gates upon an inmate is punishment enough in most instances, and any attempt to isolate inmates completely from the outside world might not only violate their constitutional rights, but would disserve the interests of a society hoping to release prisoners to become law-abiding citizens. Thus the Supreme Court has reminded us that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). See also Wolff v. McDonnell, 418 U.S. 539, 555-56, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) ("There is no iron curtain drawn between the Constitution and the prisons of this country"). Nor do those walls "bar free citizens from exercising their own constitutional rights by reaching out to those on the 'inside.'" Thornburgh v. Abbott, 490 U.S. 401, 407, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989).

Accordingly, the Supreme Court has recognized that persons convicted of serious crimes and confined to penal institutions retain the right to petition the government for the redress of grievances, Johnson v. Avery, 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747 (1969); the right to be free from racial segregation, Lee v. Washington, 390 U.S. 333, 19 L. Ed. 2d 1212, 88 S. Ct. 994 (1968); the right to due process, Wolff, supra ; the right of free speech, Abbott, 490 U.S. at 410, n.9; the right of meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); and the right to exercise substantial religious freedom, Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972); O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987).

The Court has also recognized, however, that the rights of prisoners "must be exercised with due regard for the 'inordinately difficult undertaking' that is modern prison administration." Abbott, 490 U.S. at 407 (quoting Turner, 482 U.S. at 85). Prison officials must weigh the need for internal order and security against the rights of prisoners, as well as the constitutional rights afforded "those on the 'outside' who seek to enter that environment, in person or through the written word." Abbott, 490 U.S. at 407.

Courts have been called upon to review the balance struck by prison officials between the penal institution's need to maintain security within its walls and the rights of prisoners and non-prisoners. As former Chief Judge Higginbotham has written for our court, "'courts have learned from repeated investigation and bitter experience that judicial intervention is indispensable if constitutional dictates--not to mention considerations of basic humanity--are to be observed in the prisons.'" Peterkin v. Jeffes, 855 F.2d 1021, 1033 (3d Cir. 1988) (quoting Rhodes v. Chapman, 452 U.S. 337, 354, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (Brennan, J. Concurring)).

Against this background we turn to the conduct of defendants regarding plaintiff's incoming court mail.


The district court granted summary judgment on the grounds that defendants enjoyed qualified immunity, but before reaching this issue we must first determine whether plaintiff has alleged a constitutional violation. In re City of Philadelphia, 49 F.3d at , 1995 WL 88161, at * 15; Siegert v. Gilley, 500 U.S. 226, 231, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991). This analysis involves two steps: determining (1) whether any of plaintiff's constitutional rights are infringed by the conduct alleged herein; and if so, (2) whether that infringement rises to the level of a constitutional violation, given the specialized standard of review applied to prison regulations and practices.

A number of courts of appeals have determined that opening properly marked incoming attorney or court mail outside a prisoner's presence, or reading such mail, infringes the Constitution. Though finding a constitutional violation, the Seventh, Eighth, and Eleventh Circuits identified no right in particular. See Castillo v. Cook County Mail Room Department, 990 F.2d 304, 307 (7th Cir. 1993) (per curiam) (allegation that prison officials opened three pieces of incoming court mail outside inmate's presence states "colorable claim" of constitutional violation); Lemon v. Dugger, 931 F.2d 1465, 1468 (11th Cir. 1991) (prison official violated prisoner's "constitutional right not to have his mail read" where one piece of incoming attorney mail opened and read in inmate's presence); Jensen v. Klecker, 648 F.2d 1179, 1182-83 (8th Cir. 1981) (allegations that prison officials had deliberately and repeatedly opened incoming and outgoing attorney mail outside prisoner's presence sufficient to defeat officials' motion for summary judgment). The Sixth and Tenth Circuits looked to the First Amendment. See Lavado v. Keohane, 992 F.2d 601, 609-10 (6th Cir. 1993) ("opening/reading" incoming court mail outside prisoner's presence in arbitrary or capricious fashion violates First Amendment); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980) (opening outgoing court and attorney mail outside presence of inmate violates the First Amendment), cert. denied, 450 U.S. 1041, 68 L. Ed. 2d 239, 101 S. Ct. 1759 (1981). The Second Circuit also relied on the First Amendment, but on the Petition Clause in particular. See Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986) (allegation that prison officials repeatedly opened outgoing attorney mail states claim for violation of rights to petition and to correspond with legal counsel). The Fifth Circuit relied on a constitutional right of access to the courts, arising under the Due Process Clause. See Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir. 1976) (prisoner's right of access "requires that incoming prisoner mail from courts . . . be opened only in the presence of the inmate"). Taylor, however, may no longer be good law in the Fifth Circuit. See Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993) (opening incoming attorney or court mail outside inmate's presence does not violate prisoner's rights to free speech or court access), cert. denied, ___ U.S. ___, 114 S. Ct. 1081 (1994); Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993). Lastly, in the Ninth Circuit, Judge Reinhardt has argued in Dissent that the right to privacy was at stake. Stevenson v. Koskey, 877 F.2d 1435, 1443 (9th Cir. 1989) (Reinhardt, J., Dissenting) ("reading legal mail is a violation of the prisoner's privacy rights").

Similarly, district courts in our circuit, like the one herein, have concluded that to read legal mail or to open it outside a prisoner's presence violates the Constitution, though they too have not agreed as to the constitutional rights at issue. See Jordan v. Fauver, 881 F. Supp. 947, 1995 WL 139274, at * 4-5 (reading legal mail in presence of inmate violates his right to court access) (D.N.J. 1995); Proudfoot v. Williams, 803 F. Supp. 1048, 1052 (E.D.Pa. 1992) (opening and scanning outgoing attorney and court mail in presence of prisoner violates inmate's rights to petition, counsel, and court access); Thornley v. Edwards, 671 F. Supp. 339, 342 (M.D.Pa. 1987) (opening incoming court mail outside presence of inmate violates his rights to counsel and court access), mot. denied, summ. judg. granted, 1988 WL 188333 (M.D.Pa. 1988); Carty v. Fenton, 440 F. Supp. 1161, 1162-63 (M.D.Pa. 1977) (opening incoming court mail outside inmate's presence violates his right to court access).

Only once have we confronted the question of whether opening and reading an inmate's legal mail violates the Constitution. See Allen v. Aytch, 535 F.2d 817 (3d Cir. 1976). We did not reach the issue, however, relying instead on Justice Brandeis's concurrence in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 80 L. Ed. 688, 56 S. Ct. 466 (1936) to remand for ...

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