Opinion
No. C 04-00379 CRB (PR).
February 16, 2006
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc # 22).
Plaintiff, a prisoner at San Quentin State Prison ("SQSP") and frequent litigant in federal court, filed a pro se First Amended Complaint under 42 U.S.C. § 1983 ("FAC") alleging that between the years 2000 and 2004 he had over 50 pieces of incoming confidential legal mail opened, copied and read by mail room staff outside of his presence. Plaintiff further alleges that he complained to these defendants and to their superiors, but to no avail.
Per order filed on April 12, 2005, the court found that plaintiff's allegations appear to state a cognizable First Amendment claim under § 1983 against the named defendants, when liberally construed. See Apr. 12, 2005 Order at 2 (citingO'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (opening and inspecting of legal mail outside presence of prisoner may have impermissible "chilling" effect on constitutional right to petition government)).
The court dismissed plaintiff's other allegations for failure to state a claim upon which relief could be granted under the authority of 28 U.S.C. § 1915A(b). See Apr. 12, 2005 Order at 2 n. 1.
Defendants now move for summary judgment under Federal Rule of Civil Procedure 56 on the ground that there are no genuine issues as to any material facts, and that they are entitled to judgment as a matter of law. Defendants also claim that they are entitled to qualified immunity. Plaintiff has filed an opposition and defendants have filed a reply.
DISCUSSION
A. Standard of Review
Summary judgment is proper where the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party.Id.
The moving party for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. But on an issue for which the opposing party will have the burden of proof at trial, as is the case here, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.
Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this showing, "the moving party is entitled to judgment as a matter of law." Celotex Corp., 477 U.S. at 323.
B. Analysis
Plaintiff alleges that between the years 2000 and 2004 he had over 50 pieces of confidential legal mail opened, copied and read by mail room staff outside of his presence. Plaintiff specifically alleges that mail room staff opened, copied and read many of the responses he received to more than 150 form letters he sent to various attorneys and legal organizations seeking legal representation. Plaintiff alleges that he complained of the elicit conduct to the appropriate prison personnel, but that no positive action was undertaken to prevent his legal mail from being opened.
Prison officials may institute procedures for inspecting "legal mail," i.e., mail sent between attorneys and prisoners. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (incoming mail from attorneys); see also Royse v. Superior Court, 779 F.2d 573, 574-75 (9th Cir. 1986) (prison officials may inspect mail sent by prisoner to the courts). But the opening and inspecting of "legal mail" outside the presence of a prisoner may have an impermissible "chilling" effect on the constitutional right to petition the government. See O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (citing Laird v. Tatum, 408 U.S. 1, 11 (1972)). If the prisoner demonstrates a chilling effect, prison officials must establish that legitimate penological interests justify the policy or practice. See id. at 327.
Only "legal mail" is subject to the rationale of O'Keefe. Prison officials may open and inspect mail to a prisoners from courts outside the prisoner's presence because mail from courts, as opposed to mail from a prisoner's lawyer, is not "legal mail."Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996), amended, 135 F.3d 1318 (9th Cir. 1998). Mail issued by a court is a matter of public record and can be accessed by prison officials through traditional means. Id. In addition, the Ninth Circuit has held that mail sent to prisoners from public agencies, public officials, news media and recognized civil rights groups falls within the ambit of "media mail," not "legal mail." Mann v. Adams, 846 F.2d 589, 590 (9th Cir. 1988). "Media mail" is not entitled to any special preference in the face of prison security considerations. Id.
Defendants argue that they are entitled to summary jugdment because plaintiff has set forth no evidence showing that any of the allegedly opened, copied and/or read mail was "legal mail." They note that the evidence in the record only shows that the mail at issue was "media mail" or something other than "legal mail" withing the meaning of Keenan, O'Keefe and Mann. The court agrees.
In support of his claim, plaintiff submits 19 envelopes he alleges were opened, copied and read outside of his presence. The envelopes are from the following sources:
1) Prison Legal News
2) Ella Baker Center for Human Rights
3) American Civil Liberties Union
4) Assemblymember Wilma Chan (returned)
5) Prisoners' Rights Union
6) National Jury Project
7) Paul Harris
8) The Hawkins Center
9) L.A. Cntr. for Law and Justice (returned)
10) Protection Advocacy, Inc. (returned)
11) Columbia Human Rights Law Rev.
12) M. Allen Hooper (returned)
13) East Bay Comm'n. Law Center
14) Legal Center for the Elderly
15) illegible addressee
16) Northern California Lawyers (returned)
17) L.A. Free Clinic
18) Siegal and Lewitter
19) Prisoner's Rights Union
FAC, Ex. A. In addition, he submits mail from the following sources:
1) United States Senator Barbara Boxer
2) Chicago Kent College of Law (returned)
3) Prisoners' Rights Law
4) Assemblymember Chan
5) ACLU
6) Janice Mazur (attorney)
FAC, Ex. B.
The vast majority of the mail listed above is "media mail," i.e., mail from public agencies, public officials, news media and/or recognized civil rights organizations, not entitled to any special preference. Mann, 846 F.2d at 590. The opening, copying or opening of this "media mail" outside the presence of plaintiff did not implicate the impermissible "chilling" effect on the constitutional right to petition the government recognized inO'Keefe. See id.
A few of the pieces of mail listed above do not appear to be "media mail." However, plaintiff has provided no evidence showing that any of these other pieces of mail were "legal mail." There is no evidence that the letters from Paul Harris or Janice Mazur involved legal correspondence from plaintiff's attorney or some other confidential legal source, for example. Cf. O'Keefe, 82 F.3d at 325.
In support of his opposition to defendant's motion for summary judgment, plaintiff does submits a letter from his attorney, Sarah Chester of the California Appellate Project. The letter, addressed to prison officials, states that plaintiff has had ongoing difficulty with his legal mail and that Ms. Chester is concerned about possible infringements on the attorney-client privilege. Unfortunately for plaintiff, the letter does not show that "legal mail" was actually opened and inspected outside of his presence. Instead, the letter simply reiterates plaintiff's assertion to Ms. Chester that his legal mail was being illegally inspected. Plaintiff has not set forth any evidence showing a genuine issue for trial on his claim that defendants opened and inspected his "legal mail" in violation of his First Amendment rights. See Fed.R.Civ.P. 56(e).
Even if some of the few pieces of mail allegedly opened and inspected outside of plaintiff's presence were "legal mail," defendants argue that they are entitled to summary judgment and qualified immunity because they were opened in error and were resealed and initialed pursuant to established prison protocol. In support, Defendant E.L. Johnson, the former mail-room sergeant, alleges under penalty of perjury that due to the large volume of mail and limited resources confidential mail is sometimes inadvertently opened. In these instances, the mail is resealed and initialed. Plaintiff sets forth no evidence to the contrary. His conclusory allegation that his confidential legal mail was opened intentionally is insufficient to create a genuine issue for trial. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (conclusory allegations insufficient to defeat summary judgment).
The court is satisfied that the possible mishandling of one or two pieces of legal mail without any evidence of improper motive or resulting interference with the right to counsel or access to the courts does not give rise to a constitutional violation.See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990);see also Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975) (no claim where letter from prisoner's attorney opened out of prisoner's presence in single instance); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974) (isolated incident of mail mishandling insufficient to state claim under § 1983). Defendants are entitled to summary judgment as a matter of law. See Celotex Corp., 477 U.S. at 323.
Defendants are also entitled to qualified immunity. UnderSaucier v. Katz, 533 U.S. 194 (2001), the court must undertake a two-step analysis when a defendant asserts qualified immunity in a motion for summary judgment. The court first faces "this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" 533 U.S. at 201. If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity.
If the court determines that the conduct did violate a constitutional right, it then moves to the second step and asks "whether the right was clearly established" such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 201-02. Even if the violated right was clearly established, qualified immunity shields an officer from suit when he makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he confronted. Brosseau v. Haugen, 125 S. Ct. 596, 599 (2004); Saucier, 533 U.S. at 205-06. If "the officer's mistake as to what the law requires is reasonable . . . the officer is entitled to the immunity defense." Id. at 205.
Here, even if the possible mishandling of one or two pieces of legal mail constituted a constitutional violation, defendants still would be entitled to qualified immunity. It simply cannot be said that a reasonable official would have known that erroneously opening legal mail and then documenting the error would have been clearly unreasonable or unlawful. Saucier, 533 U.S. at 202. The rule of qualified immunity "`provides ample protection to all but the plainly incompetent or those who knowingly violate the law;'" defendants can have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (doc # 22) is GRANTED.The clerk shall enter judgment in favor of defendants and close the file.
IT IS SO ORDERED.