Eleventh Circuit Discusses Split Re Standards Governing the Opening of Prisoners' Legal Mail

Per Al-Amin v. Smith, --- F.3d ----, 2008 WL 60018 (11th Cir. Jan. 07, 2008):

Post- Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254 (1987), this Court has accorded “wide-ranging” and “substantial” deference to prisoner administrators in their execution of policies and practices that they consider necessary to preserve internal order and discipline and to maintain institutional security. See Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.1999); Lawson v. Singletary, 85 F.3d 502, 509-10 (11th Cir.1996). Such deference is justified because of “the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.” Lawson, 85 F.3d at 510. Before we apply Turner 's factors to the mail-opening issue here, we review the post- Turner split in other circuits about this issue.

Subsequent to Turner, the Fifth Circuit reconsidered Taylor and Guajardo and rejected their holdings under Turner 's “reasonably related” test. See Brewer, 3 F.3d at 825. The plaintiff-inmates in Brewer complained that their legal mail was opened outside their presence, despite a prison policy requiring otherwise. Brewer involved broad “legal mail” which the Fifth Circuit described as “legal mail from various courts, attorneys, and government officials.” Id. at 818.

The Fifth Circuit acknowledged prisoners' “constitutionally protected right of access to the courts” but concluded that “what we once recognized in [ Taylor ] as being ‘compelled’ by prisoners' constitutional rights-i.e., that a prisoner's incoming legal mail be opened and inspected only in the prisoner's presence-is no longer the case in light of Turner and Thornburgh. ” Id. at 820, 825 (citation omitted). The Fifth Circuit stated that Taylor 's requirements of the least restrictive means and a substantial or important government interest “appear[ed] to have been modified” by Turner 's “instruction that when a prison practice impinges on inmates' constitutional rights, whatever those rights might be, such a practice is valid if it is ‘reasonably related to legitimate penological interests.’ ” Id. at 823-25. The Fifth Circuit noted that the prisoners did not allege “that their mail has been censored” and “they concede that such mail was opened and inspected for the ‘legitimate penological objective’ of prison security, i.e., to detect contraband.” Id. at 825. The Fifth Circuit concluded that “the violation of the prison regulation requiring that a prisoner be present when his incoming legal mail is opened and inspected is not a violation of a prisoner's constitutional rights.” Id. at 825.

In contrast, several other circuits post- Turner have concluded that opening properly marked attorney mail outside a prisoner's presence infringes the constitutional right to access to the courts. See Sallier v. Brooks, 343 F.3d 868, 877-78 (6th Cir.2003) (concluding that no penological interest or security concern justifies opening attorney mail outside prisoner's presence when prisoner requested otherwise); Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir.1995) (disagreeing with Fifth Circuit's Brewer, and concluding the pattern and practice of opening inmate's properly marked incoming “court mail” ^FN25 outside his presence fails the Turner reasonableness standard and violates inmate's rights to free speech and access to courts) ( abrogated in part on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 (1996)); ^FN26 see also Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir.2005) (stating, “when a prison receives a letter for an inmate that is marked with an attorney's name and a warning that the letter is legal mail, officials potentially violate the inmate's rights if they open the letter outside of the inmate's presence”); Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir.2003) (noting, “[i]nterference with legal mail implicates a prison inmate's rights to access to the courts” but concluding two incidents of mail interference “are insufficient to state a claim for denial of access to the courts because [the inmate] has not alleged that the interference with his mail either constituted an ongoing practice of unjustified censorship or caused him to miss court deadlines or in any way prejudiced his legal actions”); Powells v. Minnehaha County Sheriff Dep't, 198 F.3d 711, 712 (8th Cir.1999) (concluding inmate stated constitutional claim based on officers opening legal mail when he was not present).

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Applying Turner 's factors to this case, we conclude that our well-established law in Taylor and Guajardo-that inmates have a constitutionally protected right to have their properly marked attorney mail opened in their presence-is not changed by Turner and remains valid, well-established law.