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Fontroy v. Beard

March 10, 2009


On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 02-cv-02949 District Judge: The Honorable Timothy J. Savage

The opinion of the court was delivered by: SMITH,Circuit Judge.


Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 27, 2009

Before: SCIRICA, Chief Judge, AMBRO, and SMITH, Circuit Judges


In 2002, the Pennsylvania Department of Corrections ("DOC") implemented a new prison mail policy. This policy required attorneys and courts to affix "Control Numbers" to mail sent to inmates before those communications would be separated from regular mail, and opened and inspected for the first time in the addressee inmate's presence. Appellees Derrick Dale Fontroy, Theodore B. Savage, and Aaron Christopher Wheeler (the "Inmates") successfully challenged the constitutionality of this policy on First Amendment grounds in the District Court. Officials from the DOC have appealed. We are mindful that important First Amendment interests are at stake. But because we conclude that the new policy is "reasonably related to legitimate penological interests," Turner v. Safley, 482 U.S. 78, 89 (1987), it passes constitutional muster, and we will reverse the District Court.


To ensure that inmates cannot obtain contraband through the mail system, the DOC has policies for opening and inspecting incoming prison mail. The DOC receives mail addressed to inmates in mailrooms, which are located outside the perimeter of each corrections facility. There, the mail is xrayed and sorted. Mail inspectors at these off-site facilities then open and inspect regular mail for contraband. Legal mail,*fn1 however, must be treated differently. Although the DOC prohibits mail inspectors from reading mail addressed to inmates except in special circumstances, constitutional obligations require the DOC to take additional measures to ensure that legal mail remains unread. See Jones v. Brown, 461 F.3d 353, 355 (3d Cir. 2006) (holding that "state prisoners have an interest protected by the First Amendment in being present when their incoming legal mail is opened."); see also Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995) ("[A] pattern and practice of opening properly marked incoming court mail outside an inmate's presence infringes communication protected by the right to free speech." (emphasis added)). A policy that allows the opening of legal mail without the physical presence of addressee inmates "deprives the expression of confidentiality and chills the inmates' protected expression, regardless of the state's good-faith protestations that it does not, and will not, read the content of the communications." Jones, 461 F.3d at 359. As a result, the DOC tries to separate legal mail from regular mail so that legal mail can be opened and inspected for the first time in the addressee inmate's presence. How the DOC distinguishes between legal and regular mail is at the heart of this dispute.

Under the DOC mail policy in place from the 1970s until 2002, DOC staff looked at the return address alone to determine whether the sender was an attorney or court. If the return address indicated that the mail originated from one of those sources, the mail was classified as a "Privileged Correspondence."*fn2 Privileged Correspondence was then separated from the regular mail, sent to the corrections facility, and opened and inspected for the first time by on-site Housing Unit Officers in the inmates' presence.

In 2002, the DOC decided to change its policies and procedures for handling and inspecting legal mail sent to inmates. Appellant Jeffrey Beard, the Secretary of the DOC, explained during a deposition that the DOC had "ongoing concerns about the privileged mail that was coming to our institutions, because on a not infrequent basis, and in virtually all of our institutions at one time or another, we have come across attempts by inmates to smuggle various items in what was considered to be privileged mail." Two reports prepared in 1999 evidenced those ongoing concerns. A November 1999 report analyzing the high-profile escape of an inmate (the "Escape Report") suggested that the hacksaw blade and security screwdriver the inmate used to escape were obtained through mail treated as Privileged Correspondence. Additionally, a September 1999 report entitled "Privileged Correspondence Inspection and Contraband" (the "September Report") contained a "random sampling of incidents involving legal mail abuse." The September Report advised the DOC to revise the existing mail inspection policies because 1) contraband contained in Privileged Correspondence would pass through corrections facility gates before it could be discovered; and 2) the inspection of Privileged Correspondence was less effective because Housing Unit Officers had less experience and time to devote to the task than the professional Corrections Mail Inspectors.

After negotiating proposed revisions with the American Civil Liberties Union, Pennsylvania Institutional Law Project, and the Defender Association of Philadelphia, the DOC issued a new mail policy on September 1, 2002, effective September 30, 2002. Under the new policy, incoming attorney communications could be treated as Privileged Correspondence only if they met one of two conditions: 1) the attorneys hand-delivered the sealed communications to specified DOC facilities; or 2) the attorneys obtained a Control Number from the DOC and placed the Control Number on each envelope mailed to an inmate. Attorneys could obtain a Control Number by faxing a letter request containing the attorney's name, address, telephone and fax numbers, state attorney identification number, and a written verification subject to the penalties of 18 Pa. Cons. Stat. § 4904*fn3 that all mail sent to inmates using the Control Number would contain "only essential confidential, attorney-client communication and [would] contain no contraband." The DOC must then provide the attorney with a Control Number one business day after receiving a request.*fn4 A subsequent revision that was issued on May 20, 2004, effective July 15, 2004, made two relevant changes: the revision 1) allowed courts to obtain Control Numbers in the same manner as attorneys;*fn5 and 2) required all incoming mail that did not bear a Control Number but still appeared to be from a court to be hand-delivered after it was opened and inspected like other regular mail.

On May 16, 2002, the Inmates filed a pro se complaint against Appellants Beard, David DiGuglielmo, and Kim Ulisny (the "DOC Officials").*fn6 An Amended Complaint was filed on January 29, 2003, followed by a blizzard of other submissions.*fn7 The Inmates alleged that the DOC's new mail policy unconstitutionally burdened their First Amendment rights. They claimed that attorneys and courts had not obtained Control Numbers, despite repeated requests, and as a result Corrections Mail Inspectors were opening and inspecting legitimate legal mail outside of the Inmates' presence. The Inmates sought both damages and injunctive relief.

Both parties filed motions for summary judgment. Fontroy v. Beard, 485 F. Supp. 2d 592, 593 (E.D. Pa. 2007).*fn8 On May 3, 2007, the District Court granted the Inmates' motion for summary judgment with respect to their request to enjoin the new mail policy's implementation, and denied the DOC Officials' corresponding cross-motion for summary judgment on that issue.*fn9 Id. at 601. The District Court determined that the DOC's new mail policy*fn10 unconstitutionally infringed on the Inmates' First Amendment rights because there was no "reasonable connection between the asserted legitimate penological interest and the mail regulation" as required by Turner v. Safley. Id. at 592--93. The Court believed that "[t]he connection between the policy change and the rationale for it [was] tenuous and remote," and characterized the changes as "an overreaction to a single escape incident and a few isolated violations of the contraband policy involving legal mail that may or may not have occurred." Id. at 599. Accordingly, the Court held that the new mail policy failed the first part of Turner's two-step test: there was no rational relationship between the mail policy and the legitimate penological interest in prison safety and security. Id. In the alternative, the Court held that the new policy did not satisfy Turner's second step, which is outlined below, and therefore would not have passed constitutional muster even if a rational connection had been established. Id.

After the District Court denied their motion to alter the judgment, the DOC Officials filed a timely appeal challenging both the District Court's granting of the Inmates' motion for summary judgment and its denial of the DOC Officials' cross-motion for summary judgment.


The Inmates' underlying suit is actionable under 42 U.S.C. § 1983. Therefore, the District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court's summary judgment decisions is plenary, but we must view the facts in the light most ...

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