Opinion
Civil No. 06-cv-487-PB.
July 3, 2007
ORDER
Darren Starr, an inmate at the Northern New Hampshire Correctional Facility ("NCF") has filed this action, pursuant to 42 U.S.C. § 1983, alleging that his First and Fourteenth Amendment rights have been violated by defendants' actions in causing a December 2003 seizure of Starr's incoming mail, and by events that occurred subsequent to that seizure. As fully explained herein, I find that Starr's complaint states claims upon which relief may be granted, and I direct service of the complaint upon the defendants named therein.
Standard of Review
Under this Court's local rules, when an incarcerated plaintiff commences an action pro se and in forma pauperis, the magistrate judge must conduct a preliminary review to determine whether the complaint or any portion thereof should be dismissed because:
(i) the allegation of poverty is untrue, the action is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief under 28 U.S.C. § 1915A(b); or
(ii) it fails to establish subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).
LR 4.3(d)(2). In conducting the preliminary review, the Court construes pro se pleadings liberally in favor of the pro se party. See Cooper v. Chao, 71 Fed.Appx. 76, 77 (1st Cir. 2003);Ayala Serrano v. Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "The policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled."Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied, Ahmed v. Greenwood, 522 U.S. 1148 (1998).
At this preliminary stage of review, all factual assertions made by the plaintiff and inferences reasonably drawn therefrom must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (stating the "failure to state a claim" standard of review and explaining that all "well-pleaded factual averments," not "bald assertions," or "unsupportable conclusions" must be accepted as true). This review ensures that pro se pleadings are given fair and meaningful consideration.
Background
In December of 2003, Trina Catalino, a non-inmate, mailed a letter to Darren Starr, an inmate at NCF. Accompanying the letter were loose pages that Catalino had printed from the internet. The printed pages contained copies of certain New Hampshire statutes. Starr states that the pages were sent at his request, and were intended for use in preparing litigation. Starr asserts that the statutes sent were obviously related to the preparation of litigation because they dealt specifically with "Correction and Punishment," see N.H. Rev. Stat. Ann. ("RSA") § 622, et seq., the "Department of Corrections," see RSA § 21-H, and rules of the State Nursing Board adopted pursuant to the state's Administrative Procedure Act, RSA § 541-A. Starr was known by NCF officials to be a litigious inmate, and it is reasonable to assume that, if Starr received in the mail copies of laws about the authority and responsibilities of the DOC and its employees, that NCF staff members who knew of that mailing would have identified the printed statutes as likely intended for use in litigation.
The pages in question were unbound, and all of them fit inside a single envelope. Defendant Coulombe, an NCF mailroom employee, seized the envelope from Catalino and notified Starr in writing that it would be sent to the NCF's Literary Review Committee ("LRC"). The LRC is a group that, according to DOC policy, is made up of three prison officials, a member of the security staff, a member of the mental health staff, and a member of the educational staff. The LRC is charged with evaluating mail sent to inmates and identified by the mailroom staff as possibly inappropriate, to determine whether all or part of the mailing should be forwarded to the intended inmate recipient, destroyed, returned to the sender, or otherwise handled.
On February 18, 2004, the LRC met to review the mail that was withheld from Starr on December 23, 2003. The members of the LRC on that occasion were defendants Clough, Redmond, Pidgeon, Walsh, and Coulombe. Starr alleges that the LRC that was convened to review his mail had more than three members, did not include any member of the educational staff, and included at least three members of the security staff, all in violation of written prison policy governing the makeup and function of the LRC.
On February 21, 2004, Starr received a notice, dated February 19, 2004, that because he had received a "large quantity of internet printouts," in violation of the "Publisher's Only" rule, his mail had been rejected and would not be forwarded to him. That notice also advised Starr that he had ten days to appeal the decision of the LRC, and that after ten days, if no appeal were taken, the mail would be returned to the sender at Starr's expense. The document also had a box checked next to the statement: "Any material that contains contraband as defined by this policy or other regulations," indicating that, as rejected mail, Starr's letter would now be considered contraband by NCF officials.
The LRC decision was also accompanied by another document entitled "5 Day Notice," which, contrary to the LRC denial notice, advised Starr that the "excess/unauthorized mail/property" in question had to be removed from the NCF within five days of the date of the notice, or the property would be considered to be contraband. No specific disposition of property deemed to be contraband is stated in the 5 Day Notice. The 5 Day Notice refers to DOC Policy and Procedure Directive ("PPD") 9.2, which governs the "Issuance and Control of Resident Property." PPD 9.2 does not specifically authorize the 5-Day notice to be sent for rejected incoming mail, nor does PPD 9.2 specify how incoming mail that is rejected or determined to be contraband should be managed.
I reviewed the version of PPD 9.2 effective at the time of the events of which Starr complains. I understand that the PPD has since been supersede by PPD 9.02 (eff. Sept. 1, 2005). I note that the superseding version of the PPD does not contain any reference to a 5 Day Notice being an appropriate response to rejected incoming mail.
Starr states that due to a delay in obtaining access to the prison's law library, he was unable to respond to the notice until February 26, 2004. On that date, Starr put an appeal of the LRC decision, directed to the NCF Warden, into the prison mail box located on his housing unit. Starr put the appeal in the box prior to the time when daily mail pick-ups are supposed to occur. The mail was not removed from the box by any prison official until March 1, 2004. The Warden did not receive Starr's appeal until March 2, 2004. The Warden responded to Starr that because he had failed to pursue an appeal within five days of the issuance of the 5 Day Notice, the internet printouts and the personal letter that the printouts were sent with had been destroyed. The appeal was, therefore, denied, as Cattell was not able to examine and evaluate the materials in question or the validity of the LRC's decision.
The Warden erroneously stated in his denial of the appeal that Starr "apparently took no action" on the LRC decision until March 2, 2004.
Starr filed a first-level grievance regarding the destruction of the letter and printouts. The grievance was, as Starr's appeal had been, thorough and detailed as to what items were sent and rejected, and the basis for Starr's objection to the denial of his mailed material. Defendant Thyng denied the grievance on the grounds that Starr did not appeal the decision of the LRC in time.
Starr filed a second-level grievance with Warden Cattell. Again, the grievance was thorough and detailed with regard to the facts alleged and legal theories and cases Starr asserted in support of his position. Cattell denied Starr's grievance, stating that "by the time [Starr] got around to sending [his] appeal the items had been destroyed." Cattell stated that because Starr had failed to make arrangements to have the documents sent out of the prison by February 24, 2004, the items were destroyed.
Starr filed a third-level grievance, as thorough as its predecessors in explaining exactly what steps he had taken to protest the destruction of his mail, and how his conduct had comported with prison policy to the extent possible, with the office of the DOC Commissioner. John Vinson, the Commissioner's attorney, responded to that grievance as follows:
Let me see if I understand this. You got a 5-day notice. You ignored it. You did not ask that it be held in abeyance until you appealed. You then waited to appeal until at least the 7th day. Then you claim some violation of your rights. The warden's response is sustained.
Starr asserts that the prison officials considering his appeal and grievance filings disregarded the fact that Starr should never have been given a 5 Day Notice, that he was provided with an appropriate form that allowed for a ten day window for Starr to respond to the LRC decision, that nowhere was Starr advised in either notice, both of which are attached to the complaint, that a failure to respond within five days would cause an automatic destruction of the mailing in question. Further, Starr states that to the extent that Starr's filings may have been untimely, if examined for compliance with the five-day rule, he in fact did timely appeal and the delays were caused by factors within the exclusive control of prison officials, not by any intentional or unintentional delay on the part of Starr. This fact was also disregarded by the reviewing officials.
Although generally applied in the context of determining the timeliness of court filings by inmates rather than the sending of internal administrative grievances, the "prison mailbox rule" states that an inmate's pleading is to be considered filed at the time it is properly placed into the custody of prison officials, because after that time, the inmate has no control over the handling of the document and is not able to guarantee, through his own diligence, that the document will be advanced to the proper recipient in a timely fashion. See Houston v. Lack, 487 U.S. 266, 271-72 (1988); Casanova v. Dubois, 304 F.3d 75, 78-79 (1st Cir. 2002).
Discussion
I. Section 1983
Section 1983 creates a cause of action against those who, acting under color of State law, violate federal constitutional or statutory law. See 42 U.S.C. § 1983; City of Okla. City v. Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002). In order for a defendant to be held liable under § 1983, his or her conduct must have caused the alleged constitutional or statutory deprivation. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir.), cert. denied, 522 U.S. 819 (1997). Here, Starr has raised several claims that the DOC employee defendants, all state actors, have violated his federal constitutional rights. As such, his claims arise under § 1983.II. First Amendment
Incarceration brings about necessary limits on certain aspects of an inmate's constitutional rights. Turner v. Safley, 482 U.S. 78, 84 (1987). The First Amendment rights of prisoners may be abridged to the extent that the exercise of those rights is "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977) (internal citations omitted). However, prison inmates maintain a First Amendment right, albeit not an unlimited right, to send and receive mail. See id.; see also Thornburgh v. Abbott, 490 U.S. 401, 407 (1989).
The First Amendment "embraces the right to distribute literature, and necessarily protects the right to receive it."Martin v. City of Struthers, 319 U.S. 141, 143 (1943). The First Amendment "protects material disseminated over the internet as well as by the means of communication devices used prior to the high-tech era." Clement v. Cal. Dep't of Corrs., 364 F.3d 1148, 1152 (9th Cir. 2004) (citing Reno v. ACLU, 521 U.S. 844, 868 (1997)). In the prison context, a number of courts have found that applying "publisher's only" rules to restrict all printed material sent into the prison with a personal letter, as opposed to directly from the publisher, violates inmates' First Amendment rights. See e.g., Lindell v. O'Donnell, 211 Fed.Appx. 472, 474 (7th Cir. 2006), cert. denied, 127 S.Ct. 2104 (2007) (recognizing that an all-out ban on receiving printed internet materials from friends and family members would be unconstitutional); Lindell v. Frank, 377 F.3d 655, 660 (7th Cir. 2004), cert. denied, 543 U.S. 1169 (2005) (concluding that application of "publisher only" rule to all newspaper clippings and copies was a "close issue because of the deference prison administrators enjoy," but was unconstitutional in that prisoners lacked access to the restricted materials and less exaggerated responses were available); Allen v. Coughlin, 64 F.3d 77, 80-81 (2d Cir. 1995) (recognizing that a constitutional violation may exist where prison officials remove "entirely innocuous" newspaper clippings from prisoners' mail pursuant to a publisher-only rule).
In Turner, the Supreme Court set out a four-factor test for courts to use in determining whether a particular prison policy serves legitimate penological objectives: (1) whether the regulation is rationally related to a legitimate and neutral government objective; (2) whether the inmate has other avenues available to exercise the right in question; (3) the impact that accommodating the asserted right will have on prison guards and other prisoners, as well as on the allocation of prison resources; and (4) whether there is any ready alternative to the regulation that will fully accommodate the prisoners' rights at de minimus cost to valid penological interests, indicating that the regulation is an exaggerated response by prison officials. 482 U.S. at 87, 89-90. Applying this test, I will examine the regulations at issue here to determine whether or not Starr can state an actionable deprivation of his First Amendment rights.
A. The Mail Regulation
The handling of prisoner mail is governed by PPD 5.26 which provides procedures for the review of all incoming mail to inmates. Purportedly following that policy, defendant Coulombe seized Starr's incoming mail because it contained several sheets of loose paper with New Hampshire statutes on them that had been printed from the internet. The material was forwarded to the LRC and reviewed by defendants Coulombe, Greenwood, Clough, Redmond, and Walsh. Upon review, the LRC did not make any determination that the content of the mailing was contraband, but determined that because it was a "large quantity" of papers printed from the internet, the mailing violated the "Publisher's Only" rule.
PPD 5.26 and the "Rejected Material" form attached to PPD 5.26 are reproduced and addended to this Order, for reference, as Attachment 1.
None of the notices to Starr regarding the mailing advised him of how many pages the envelope contained, or what number of pages would constitute a "large quantity." PPD 5.26 does not identify any number of loose pages in its definition of materials that need to be received directly from a publisher. Starr does state that the information all fit into a single envelope, along with a personal letter.
The "Publisher's Only" rule, located at PPD 5.26(IV)(D)(1), requires that "[a]ll publications, tapes, records, discs or other material may be introduced into the mail by a bona fide publisher or bona fide bookstore and prepaid by direct subscription only." The rule creates an exception for "[o]ne (1) subject article from a publication" included in a piece of mail, provided that the article is on paper no larger than 8 ½" × 11" and is not altered. PPD 5.26(IV)(D)(2).
A separate section of the regulation governing the receipt of mail by a prisoner defines materials that must be sent directly by a publisher as "[b]ooks, magazines, periodicals, newspapers and recordings [tapes, discs or records]." Nothing in PPD 5.26 specifically addresses the mailing of loose pages downloaded from the internet sent in an envelope, or addresses material printed from the internet at all. The only reference to "large quantities" of paper sent to an inmate in PPD 5.26 indicates that "[w]hen the cost is borne by the inmate, there is no limit on the volume of letters an inmate may send or receive, or on the length, language, content or source of mail or publications, except when there is a reasonable belief that the limitation is necessary to protect public safety or institutional order and security." PPD 5.26(IV)(E)(1). There is no indication in the facts alleged by Starr that there was any danger to public safety, institutional order, or institutional security presented by several loose sheets of paper that were printed with New Hampshire laws.
Several other provisions of PPD 5.26 are relevant to Starr's complaint. PPD 5.26(IV)(C)(1) mandates that the LRC be made up of three members, including representatives of the DOC's security, mental health, and educational staff. PPD 5.26 governs the treatment of mail that the LRC determines to be unacceptable for prisoner receipt. PPD 5.26(IV)(N)(1) permits an inmate ten days, from the date of decision, to appeal to the Warden an LRC rejection of a piece of incoming mail. That provision also gives the inmate an additional ten days, should the Warden deny the inmate's appeal, to send the rejected material out of the institution. Only after that ten day grace period can the mail be either discarded, destroyed, or returned to the sender of the mail at the inmate's expense.
PPD 5.26(IV)(C)(8) also directs the LRC to advise inmates that their incoming mail has been rejected by using a "Rejected Material" form that is attached to PPD 5.26. That form advises the inmate that he or she has ten days from the date on the form to appeal the rejection of the mail to the Warden, and that such an appeal should be taken by sending an inmate request slip. The form further warns inmates that if no timely appeal is filed, the material will be held in the mail room for an additional ten days and then the material will be returned to the sender at the inmate's expense.
PPD(IV)(B)(4) prohibits the rejection of mail because its content is "religious, philosophical, political, social, sexual, unpopular or repugnant." Essentially, prison officials may not reject mail based on its content unless that content poses a threat to the safety and security of the institution, its employees, or any of the inmates.
Finally, PPD (IV)(B)(5) and PPD (IV)(C)(5) direct prison officials to destroy the entire contents of an incoming package or envelope if any portion of the package or envelope is objectionable or offensive, including publications, personal mail or printed material. This regulation is reasonable, according to its own terms, "[b]ecause tearing out rejected or offensive portions of personal mail, publications or printed materials creates animosity and ill will." Plainly stated, the prison has deemed it better to destroy the entire mailing rather than just the portion of the mailing that the LRC has decided to reject.
B. Burden of First Amendment Rights and Legitimate Penological Objectives
Starr's right to receive mail and publications has unquestionably been burdened by the defendants' use of PPD 5.26 to seize, prohibit, and destroy a personal letter and pages of statutory law that had been mailed to him at NCF. Because the application of the regulation impinged Starr's First Amendment right to receive mail, the regulation must be reasonably related to a legitimate penological objective. There is no doubt that monitoring, and some regulation of, information that flows into the prison is a legitimate penological objective, to the extent that such monitoring and regulation serves to protect institutional security, or to prevent the introduction of contraband, or illegal, disruptive, or dangerous information into the prison. Thornburgh, 490 U.S. at 415 (citing Pell v. Procunier, 417 U.S. 817, 823 (1974)).
This is not to say, however, that the standard is without power to control a prison regulation's overbreadth. The reasonableness standard set forth in Turner, to be utilized by the Court in evaluating the relationship of the regulation to a legitimate penological objective, provides:
if . . . satisfied by nothing more than a ' logical connection' between the regulation and any legitimate penological concern perceived by a cautious warden, it is virtually meaningless. Application of the standard would seem to permit disregard for inmates' constitutional rights whenever the imagination fo the warden produces a plausible security concern and a deferential trial court is able to discern a logical connection between that concern and the challenged regulation.Turner, 482 U.S. at 100-01 (Stevens, J.) (concurring in part and dissenting in part) (citation omitted) (emphasis in original). Accordingly, Turner must be read to require some objectively reasonable connection be able to be drawn between a prison rule and the legitimate concern to which the rule is addressed. A connection, examined under a less stringent standard requiring only a logical link between the rule and its motivation, risks creating carte blanche to any prison administration that can draw a line, however tenuous, between a rule limiting inmates' rights and some broad or catch-all security concern, as long as the line drawn is not illogical.
C. Reasonableness Under the Four Turner Factors
Starr's complaint spells out a restriction of his First Amendment rights, occasioned by the application of a regulation that appears to be related to a legitimate penological concern. Whether or not that restriction is an unreasonable burden on Starr's First Amendment rights is determined by the four-factor analysis set out in Turner. As described below, after evaluating these factors, I find that Starr has sufficiently alleged that his First Amendment rights were unreasonably restricted by the application of PPD 5.26 to allow this claim to proceed against the defendants here.
1. Rational Relationship and Neutral Objective
A prison regulation impinging on Starr's First Amendment right to receive mail must bear a rational relationship to a neutral penological objective. Thornburgh, 490 U.S. at 415; Turner, 482 U.S. at 90. As discussed above, a regulation that allows the prison to censor mail and to determine, based on content, whether or not a particular piece of mail presents a risk to institutional security, has a rational relationship to a legitimate penological interest. According to Starr's complaint, however, PPD 5.26 was applied to him in order to suppress his criticism of the prison, as expressed by his litigation against the prison. Starr points to the fact that New Hampshire statutes printed from the internet were censored, seized, and destroyed by prison officials, while other materials, including health-related and spiritual or religious information, mailed in substantially the same format of loose pages downloaded from the internet, were permitted. I find, therefore, that Starr has alleged that the regulation in question was rendered illegitimate by the improper purpose of suppressing Starr's permissible First Amendment right to express his opinion of the prison and his prison conditions and to seek redress for his grievances. See Thornburgh, 490 U.S. at 415-16 (finding under Turner that only those regulations basedsolely on the regulated activities' potential for disrupting prison security, are neutral) (emphasis added).
2. Alternative Means of Exercising Right
To permissibly curtail Starr's First Amendment right, a regulation must not be so broad as to prevent Starr from exercising the right in question by any other means. Thornburgh, 490 U.S. at 418; Turner, 482 U.S. at 90. Ordinarily, inmates can retrieve New Hampshire statutory law from the prison library. In this case, however, Starr alleges that a lockout preventing Starr from accessing the statutes in question at the prison's library computer prevented him from obtaining the information he needed, and that waiting to obtain the information in another way would have interfered with his then — pending litigation. Accordingly, I find that Starr has alleged that in this instance he did not have an adequate alternative means of exercising his right to obtain legal materials.
3. Impact of Accommodation of Starr's Rights
The Court must consider the impact that accommodating Starr's asserted rights would have on guards and inmates at the prison.Thornburgh, 490 U.S. at 418; Turner, 482 U.S. at 90. Assuming, as I must, that the facts alleged by Starr are true, it does not appear that there would have been any adverse impact at all to the prison, prison employees, or any other inmate, in allowing Starr to receive his personal letter and the statutes enclosed with it. There is no apparent safety or security risk based on the physical nature of loose sheets of paper containing New Hampshire statutory law. Further, it would not have cost any time or money to forward Starr's incoming mail to him promptly upon ascertaining its content, which could have been accomplished by a fairly cursory review of the documents.
4. Ready Alternative/Exaggerated Response
"[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns." Turner, 482 U.S. at 90. The regulation that was used to justify the seizure and destruction of Starr's mail in this case is not actually contained within the text of the PPD governing the treatment of incoming mail. It appears that, in response to the likely relatively new phenomenon of material being downloaded from the internet and then forwarded to inmates in letters, the prison administration has attempted to craft a response by determining that undefined "large quantities" of paper would be rejected as violating the "Publisher's Only" rule. Without a review of the content of the material, however, rejecting papers that fit within an envelope as "large quantities" of paper, when there is no volume restriction on mail, appears to be an exaggerated response to the issue of internet materials being sent into the prison. While such a regulation might be drafted to prevent inmates from skirting a "Publisher's Only" rule and secreting in contraband information within hundreds of pages of paper, it is a stretch to apply such a rationale to paper that fits inside an envelope. Such a document cannot create more of a security risk than a word-processed personal letter that fits inside an envelope of the same length, and which PPD 5.26 explicitly permits. Accordingly, I find that, at least as applied in this matter, the regulation, as alleged, is an exaggerated response on the part of prison officials to a potential penological concern. The regulation, as applied, therefore, unreasonably restricts Starr's First Amendment rights.
III. Due Process Claims
Plaintiff's second claim asserts the deprivation of a liberty interest created by the First Amendment to the United States Constitution. Thornburgh, 490 U.S. at 418. The Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV. Starr is entitled to due process procedures that ensure that his right to receive mail is protected from arbitrary government action. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Starr is entitled to "minimum procedures appropriate under the circumstances and required by the Due Process Clause" that insure that his First Amendment rights are protected. Id. Starr describes a hearings process in which the LRC failed to include a member of the DOC educational staff, Starr was denied notice by way of specific rule or regulation that the incoming mail was problematic, and was denied adequate clear notice that his mail would be destroyed. Starr further alleges that the process afforded him effectively denied him the opportunity to appeal the LRC decision prior to the destruction of his mail. Starr therefore has sufficiently alleged a denial of due process to state a claim upon which relief may be granted regarding the formation of the LRC, the procedures employed by the LRC, and the appeal taken after the LRC ruling. Accordingly, I direct that the due process claims be served on the defendants.
It appears that plaintiff is further asserting the deprivation of a liberty interest created by the NHSP regulations governing mail. State-created regulations may create a protected liberty interest that affords a prisoner due process when facing a deprivation of that interest. Dominique v. Weld, 73 F.3d 1156, 1159 (1st Cir. 1996) (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). Because a prisoner's right to receive mail is protected by the federal constitution, I do not find it necessary at this stage of litigation to assess whether those regulations have created any due process rights independent of the process due to Starr to enable him to protect his substantive constitutional rights.
IV. Retaliation
Starr next alleges that the seizure and destruction of his mail, and the denial of due process that followed, constituted unconstitutional retaliation for the exercise of his First Amendment rights. Conduct on the part of prison officials that is "not otherwise constitutionally deficient is actionable under § 1983 if done in retaliation for the exercise of constitutionally protected first amendment freedoms." Oropallo v. Parrish, No. 93-1953, 1994 WL 168519, at *3 (D.N.H. May 5, 1994),aff'd, 23 F.3d 394 (1st Cir. 1994) (citing Ferranti v. Moran, 618 F.2d 888, 892 n. 4 (1st Cir. 1980) ("[A]ctions otherwise supportable lose their legitimacy if designed to punish or deter an exercise of constitutional freedoms.") (citation omitted)); see Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert. denied, 512 U.S. 1209 (1994) (prison officials cannot lawfully impose a disciplinary sanction against a prisoner in retaliation for the prisoner's exercise of his constitutional right). "[G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). On the other hand, as noted above, prison officials may make policy that is reasonably related to legitimate penological interests, even at the expense of certain constitutional rights. See Beard v. Banks, ___ U.S. ___, 126 S.Ct. 2572, 2579 (2006) (citing Turner, 482 U.S. at 89-90).
In order to state a claim for retaliation for exercising his First Amendment rights, Starr must allege: (1) the conduct which led to the alleged retaliation was protected by the First Amendment, (2) some adverse action at the hands of the prison officials, and (3) a causal link between the exercise of his First Amendment rights and the adverse action take. See Price v. Wall, 464 F. Supp. 2d 90, 96 (D.R.I. 2006); see also LaFauci v. N.H. Dep't of Corr., No. Civ. 99-597-PB, 2005 WL 419691, at *7 (D.N.H. Feb. 23, 2005) (Unpublished Order). I consider each of these elements of a retaliation claim in turn.
A. Petitioning the Government for Redress of Grievances/Maintaining Right of Access to the Courts
The right to petition the government for a redress of grievances has been characterized as "among the most precious of the liberties safeguarded by the Bill of Rights." United Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967). In the prison context, this right means that inmates must be "permit[ted] free and uninhibited access . . . to both administrative and judicial forums for the purpose of seeking redress of grievances against state officers." Turner, 482 U.S. at 84 (citing Johnson v. Avery, 393 U.S. 483 (1969)); Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc), cert. denied, Sostre v. Oswald, 404 U.S. 1049 and Oswald v. Sostre, 405 U.S. 978 (1972).
Starr has alleged that he exercised his First Amendment right to petition the government for a redress of grievances by engaging in litigation against the prison and its employees both prior to and during the time the acts challenged here occurred. Starr alleges that the fact that his litigation history was known to the defendants, some of whom were previously named as defendants to other suits he filed, and that he was receiving mail that was obviously related to either pending or future litigation, gives rise to the inference that the seizure and premature destruction of his mail, as well as the denial of his due process rights, were done in retaliation for his constitutionally protected conduct of petitioning the government for a redress of his grievances against the DOC. Because Starr's prior and future litigation is protected by the First Amendment as an exercise of his right to petition the government to redress grievances, Starr has alleged sufficient facts to satisfy the first requirement for stating a retaliation claim.
Starr has filed a number of lawsuits against DOC employees in this Court. See Starr v. Corr. Comm'r, No. 89-cv-MFL (filed July 25, 1989); Lepine v. Corr. Comm'r, No. 97-cv-072-SM (filed Feb. 18, 1997); Cookish v. Rouleau, No. 02-cv-028-SM (filed Jan. 18, 2002); Starr v. Rouleau, No. 02-cv-053-SM (filed Jan. 29, 2002);Starr v. N. N.H. Corr. Facility, Warden, No. 04-cv-002-SM (filed Jan. 5, 2004); Starr v. Dube, No. 05-cv-264-SM (filed July 26, 2005) (raising issues occurring simultaneously with the events at issue here); Starr v. Cox, No. 05-cv-368-JD (filed Oct. 27, 2005) (same).
B. Adverse Action
To state an adverse action, plaintiff must allege that the defendants subjected him to "conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her Constitutional rights." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled in part on other grounds by Phelps v. Kapnolas, 308 F.3d 180, 187 n. 6 (2d Cir. 2002); see Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999). Even if a particular inmate is not chilled in his expression, a claim for retaliation may still arise if the retaliatory behavior alleged is objectively sufficient and onerous to deter an ordinary person from exercising his rights. Gay v. Shannon, No. Civ.A. 02-4693, 2005 WL 756731, *8 (E.D.Pa. 2005) (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Starr alleges that the defendants seized his mail containing both legal materials and a personal letter, determined that the legal materials violated prison regulations, and that they then destroyed the entire correspondence before the expiration of the period for appeals allowed by the mail regulations. The premature destruction of the mail, Starr alleges, was also caused by the improper application of a "five day notice" to a mail situation, the failure of the prison to provide him with time in the library to prepare his appeal before the expiration of the improperly abbreviated appeals period, and then the failure to deliver the appeal to the Warden for five additional days. I find that an inmate of ordinary firmness might well be chilled in his efforts to litigate his grievances against the prison, both administratively and in the courts, if his efforts to do so were expected to be rewarded with the destruction of his personal mail without being afforded the proper opportunity to challenge such an action. Starr, therefore, has stated sufficient facts to allege that adverse actions were taken against him that would chill an ordinary inmate in his situation from exercising his First Amendment right to petition the government for a redress of grievances.
C. Retaliatory Action Caused by First Amendment Violation
Circumstantial evidence is often enough to support a claim that an adverse action was taken with retaliatory intent, as intentions are often difficult to prove through direct evidence.See Beauchamp v. Murphy, 37 F.3d 700, 711 (1st Cir. 1994), cert. denied, 514 U.S. 1019 (1995); Ferranti, 618 F.2d at 892 (chronology of events provided support for inference of retaliation); McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979) (same); see also Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, Palermo v. Woods, 516 U.S. 1084 (1996). Here, Starr alleges that mail he received containing materials printed off the internet that were nonlegal in nature were forwarded to him without question. When he was sent a letter containing loose sheets of paper with New Hampshire statutes printed on them, however, his mail was seized, and was subject to an extra-regulation timetable for appeal, and therefore destroyed before Starr had any opportunity to appeal the rejection of his mail to the appropriate authorities. When he attempted to grieve this allegedly inappropriate destruction of his personal letter and legal materials, he was advised at each level of his appeal that the destruction of his mail was the result of his own inaction, and not the result of a misreading of the regulation. The responses to Starr's thoroughly argued position containing references to the regulations governing mail uniformly failed to acknowledge Starr's arguments and references to the prison's own regulations. Both Warden Cattell's and Attorney Vinson's responses to Starr adopted a tone which clearly indicated that Starr's arguments citing to the law and to the prison's regulations were beyond reason or understanding. These events, considered together, present sufficient circumstantial evidence of an intent to retaliate against Starr for the exercise of his First Amendment rights to meet the third requirement for a retaliation claim. Accordingly, I find that Starr has stated a retaliation claim upon which relief may be granted, and I direct that this action be served on the defendants named in the complaint.
The nonlegal documents printed from the internet and mailed in letters, in the same form as the mail at issue in the instant complaint, which were not seized, are attached to Starr's complaint. These documents were on the subject of Tai Chi Chuan practice (eleven pages mailed in and accepted by the NCF mailroom) and a medical condition called folliculitis (2 pages mailed in and accepted by the NCF mailroom).
V. Supervisory Liability Claims
Starr has named Thyng, Cattell and Vinson as defendants to this action in their supervisory capacities. Starr bases his allegation of supervisory liability on the fact that, through Starr's grievances and appeals, the supervisory defendants were aware of the violation of Starr's constitutional rights, and yet they failed to remedy the situation. "Supervisory liability under § 1983 cannot be predicated on a respondeat [superior] theory, but only on the basis of the supervisor's own acts or omissions."Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998) (internal citations omitted). A supervisor, to be liable for the acts of those who serve underneath him, "either was a primary actor involved in, or a prime mover behind, the underlying violation." Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). There must be "an affirmative link, whether through direct participation or through conduct that amounts to condonation or tacit authorization" to the violation alleged. Id. at 44.
Construing the allegations in the complaint as true, as I am required to do at this preliminary stage of review, the facts readily demonstrate that the supervisory defendants implicitly approved and supported the deprivation of Starr's First Amendment rights by failing to respond to Starr's complaint in any meaningful way. By advancing policies that served to deprive Starr of his rights, they were directly responsible for the losses sustained by Starr. Starr has, therefore, sufficiently alleged that Thyng, Cattell, and Vinson were responsible for the first amendment violation and retaliation alleged, in their individual as well as supervisory capacities, and I direct that the claims in this case be served against those defendants in their individual supervisory capacities.
Conclusion
As I find that plaintiff has stated claims upon which relief may be granted, I order the complaint (document no. 1) be served on Defendants. The Clerk's office is directed to serve the New Hampshire Office of the Attorney General ("AG's office"), as provided in the Agreement On Acceptance Of Service, copies of this order and the complaint (document no. 1). See LR 4.3(d)(2)(C). Within thirty days from receipt of these materials, the AG's office will submit to the court an Acceptance of Service notice specifying those defendants who have authorized the AG's office to receive service on their behalf. When the Acceptance of Service is filed, service will be deemed made on the last day of the thirty-day period which runs from the AG's receipt of these materials.
As to those defendants who do not authorize the AG's office to receive service on their behalf or whom the AG's office declines to represent, the AG's office shall, within thirty days from receipt of the aforementioned materials, provide a separate list of the last known addresses of such defendants. The Clerk's office is instructed to complete service on these individuals by sending to them, by certified mail, return receipt requested, copies of these same documents.
Defendants are instructed to answer or otherwise plead within twenty days of acceptance of service. See Fed.R.Civ.P. 12(a)(1)(A).
Plaintiff is instructed that all future pleadings, written motions, notices, or similar papers shall be served directly on the Defendants by delivering or mailing the materials to them or their attorneys, pursuant to Fed.R.Civ.P. 5(b).
SO ORDERED.
ATTACHMENT 1
Enforcement Operations 5.26 INMATE MAIL SERVICE 10/01/05 08/01/06 John Sanfilippo, Warden Name/Title 5.26 Commissioner's Office 271-8016 Office Phone # 08/01/05 Stephen J. Curry, Commissioner NH DEPARTMENT OF CORRECTIONS CHAPTER POLICY AND PROCEDURE DIRECTIVE STATEMENT NUMBER SUBJECT: EFFECTIVE DATE REVIEW DATE PROPONENT: SUPERCEDES PPD# DATED ISSUING OFFICER: DIRECTOR'S INITIALS ___________ DATE ___________ ____________________________________ APPENDIX ATTACHED: YES _________ NO __________ REFERENCE NO: See reference section on last page of PPD.I. PURPOSE:
To establish guidelines for incoming and outgoing correspondence, publications, and property and to provide a process and criteria for reviewing and rejecting unauthorized materials.II. APPLICABILITY:
to all inmates and staff
III. POLICY:
It is the policy of the Department of Corrections to allow inmates to send and receive correspondence, publications and property through the United States Postal Service or regulated parcel carriers, according to all applicable laws, policy and procedures and regulations. All quarantine inmates will receive postage stamps to enable them to maintain community ties.
IV. PROCEDURE:
B. Mail Security Screening
Responsibility
1. A responsible individual will be designated as the Mail Officer and Mail Service Unit Supervisor for each confinement facility.
2. The Mail Officer is responsible for the operation of the Mail Service Unit, including the completion of the legal mail log (attachment 2), withheld mail log (attachment 3), notice to inmates regarding Literary Review Committee (LRC) decisions and the supervision of all assigned personnel.
3. The Mail Officer will report to the facility administrator through an established chain of command.
4. Incoming and outgoing mail may be withheld from the stream of mail for referral to the LRC or for further investigation. Unless subject to one of the exceptions described below (or permitted by a separate PPD) inmates whose mail is withheld will be notified in writing of that decision. When second-class periodicals (newspapers, magazines, etc) or 3rd or 4th class or other bulk mail are withheld, that information will be posed in the units or blocks. When first class documents or packages are withheld, an inmate will be notified within ten (10) days of the date the mail was withheld. The written notice shall include:
a. Inmate name
b. Item description (letter or package)
c. Other contents, if any
d. Date the item was pulled
e. Reason why the item was pulled
f. The other person's (sender's or recipient's) name
g. Whether the item was "held in the mail room or sent to another location"
A DOC staff member shall sign the notice. The same information shall be kept in the withheld mail log for first class letters and packages (see attachment 3).
5. At their own expense, inmates may request one copy of the existing withheld mail log entries pertaining to them for a particular date or timeframe so long as they are entitled to the information pursuant to this policy and all other PPDs. In the event that an inmate is not entitled to the information, the inmate will be told that "no information exists", or the substantial equivalent. The log shall be maintained in the mailroom for a minimum of sixty (60) days. Thereafter, the log may be destroyed or archived, at the department's discretion. Inmates may also file an inmate request slip seeking the information without charge:
1. All incoming and outgoing mail is subject to being opened and read. All mail will be routinely inspected for contraband, except for privileged correspondence as specified below (see IV F). Information obtained from inspection of such mail will not be divulged, except as deemed necessary in conducting an investigation or judicial or quasi-judicial proceeding. Any material provided to investigative agencies will be handled and processed as physical evidence in accordance with applicable laws and rules and regulations.
2. Incoming or outgoing inmate mail that meets any of the following criteria, will be forwarded to the LRC or Investigations for review, consistent with the notice provisions in IV A 4.
a. Descriptions or depictions of procedures for the construction or use of weapons, ammunition, bombs, incendiary devices, or other items that might constitute a security hazard.
b. Materials that depict, encourage, or describe methods of escape from correctional facilities, or contain blueprints, drawings or similar descriptions of locking devices of penal institutions, and other materials that might assist escape.
c. Descriptions or depictions of procedures for brewing alcoholic beverages, or the manufacture of drugs.
d. Any material that violates postal regulations, make unlawful threats, or attempts at blackmail or extortion.
e. Any material that contains contraband as defined by this policy or other regulations.
f. Any material pertaining to gambling or a lottery.
g. Documents written in code.
h. Descriptions or depictions that encourage activities which may lead to the use of physical violence or group disruption.
i. Materials that encourage or instruct in the commission of criminal activities or are in violation of the rules of conduct for prisoners.
j. Unauthorized solicitation of gifts, goods, or money from a person other than the inmate's family
k. Prison unions.
l. Correspondence constituting or contributing to the conduct or operation of a business, except correspondence necessary to protect the property or funds of the inmate during confinement.
m. Contents that would, if transmitted, create a clear and present danger of violence and physical harm to persons or property, or severe psychiatric or emotional disturbance to a inmate.
n. Obscene material.
o. Inmate to inmate mail.
p. Sexually explicit material or material that would be detrimental to the treatment of inmates or that would encourage or educate inmates in deviant or unlawful sexual practices will be not permitted.
3. Mail forwarded to the Investigations Unit will be reviewed to determine the appropriate disposition.
a. Material that will become part of an official investigation will be retained as evidence. Both the sender and the intended recipient will be notified within ten (10) working days that the material is being held as evidence consistent with the written notice provisions in IV A 4, unless making the notification will jeopardize the investigation, in which case a written exception must be sought from the Chief of Investigations or higher authority. In the event that the exception is not approved, the inmate will be given written notification within ten (10) days of the date of that decision or the mail will simply be forwarded to him/her.
b. Material that does not constitute a meaningful violation of paragraph 2 above will be returned to the Mail Officer with instructions to forward it to the addressee. If the material is held less than ten (10) days, it shall simply be forwarded to the inmate.
c. Inmate to inmate mail may be retained or destroyed and is not subject to notification requirements. Facilitators of inmate to inmate mail may be subjected to visit suspensions or other sanctions.
d. Material that the Investigations Unit has determined should be rejected will be returned to the Mail Officer with an explanation for rejection together with instructions to notify both the sender, if known and the intended recipient of that action, consistent with this policy. Notice to the inmate and the sender shall be from the mailroom using the Rejected Mail Form (attachment 1). In the case of withheld outgoing mail, the recipient shall not be notified.
e. Material that may violate paragraph C3 below will be sent back to the Mail Officer with instructions to route the material to the LRC.
4. Material that violates no other sections of this policy may not be rejected solely because its content is religious, philosophical, political, social, sexual, unpopular or repugnant.
5. Because tearing out rejected or offensive portions of personal mail, publications or printed material creates animosity and ill will, it is reasonable to exclude the entire document. Thus, if any material contained in the envelop or package is destroyed or sent out, all material contained in the envelope or package shall be destroyed or sent out. On appeal from an inmate, where the rejected portion is so small and the violations of these rules so slight as to create no impact on the objectives of these rules, the Warden may, at their sole discretion, allow the material.
1. The Commissioner shall appoint a committee to review questionable incoming or outgoing mail to include publications, pictures, or documents according to the guidelines established by this policy. The Committee shall be composed of three (3) members: a representative from security, mental health, and education.
2. Any publication or material determined to be in violation of these guidelines will be returned to the sender at the inmate's expense, after the person to whom the mail was sent has been notified by the mailroom officer (Attachment 1). Any outgoing publication or material determined to be violation of these guidelines shall be returned to the inmate unless otherwise unsuitable to be returned, in which case it shall be destroyed or retained as evidence, at the discretion of the department.
3. Review Criteria:
a. Obscene material, including publications containing explicit descriptions, advertisements or pictorial representations of homosexual acts, bestiality, bondage, sadomasochism, or sex involving children and including, but not limited to material that violates RSA 650:1, will not be permitted.
b. Sexually explicit material or material that would be detrimental to treatment of inmates or that would encourage or educate inmates in deviant or unlawful sexual practices will not be permitted.
c. Nudity or sexual depictions that violate no other provisions of this policy and which have scholarly, medical or purely artistic value may be admitted.
d. Homosexual materials may be admitted that violate no other section of this policy and that are not sexually explicit;
1) If they cover the activities of gay-rights or gay religious groups
2) If they are literary publications with homosexual themes or preferences.
4. The committee will meet on a monthly basis if necessary, or more frequently at the discretion of the Committee Chair.
5. Because tearing out rejected or offensive portions of publications or printed material creates animosity and ill will, it is reasonable to exclude the entire document. On appeal from an inmate, where the rejected portion is so small and the violations of these rules so slight as to create no impact on the objectives of these rules, the Warden, may, at their sole discretion, allow the material.
6. There shall not be an excluded list of publications: each issue of a subscription is to be reviewed separately. However, a inmate may request from the Mail Officer information about whether a publication is frequently rejected in order to allow the inmate to make an informed decision concerning subscribing to a particular magazine. The Committee shall periodically provide the Mail Officer at each facility and the Library with a list of rejected publications.
7. Materials forwarded to the committee will be kept in a secure storage area in the mailroom pending review.
8. When a determination is made by the LRC, the LRC shall return the material to the mailroom with an explanation of what decisions were reached. When the mail that is forwarded to the LRC is rejected, the LRC will provide the rationale and reason to the mail office. The mailroom shall notify the inmate in writing of the decision made consistent with IV A 4. Decisions with regard to second class periodicals or 3rd or 4th class or other bulk mail shall be posted in the units or blocks. Decision with regard to first class envelopes or packages shall be sent to the inmate. LRC decision slips for envelopes or packages will include an area for DOC staff to list each letter or package at issue, the name of the individual or business the envelope or package was "sent to" or "received from" and the reason each envelope or package was rejected. The rejected mail form should be used for this purpose (attachment 1)
1. All publications, tapes, records, discs or other material may be introduced into the mail by a bona fide publisher or bona fide bookstore and prepaid by direct subscription only. All must be prepaid and postage paid, and delivered through the United States Postal Service. Personal letter tapes and COD packages will not be accepted. Items that have been re-packed or delivered by other sources will not be accepted.
2. An exception to this rule is a follows:
a. One (1) subject article from a publication may be included in a piece of mail.
b. This article must be no larger than standard letter size of 8 1/2 × 11.
c. The articles must not be altered in any form; i.e. pasted, taped, stapled, etc.
d. Mail found to be in violation of this rules will be logged in the mailroom and processed as in PPD 9.2, paragraph IV F.
1. When the cost is borne by the inmate, there is no limit on the volume of letters an inmate may send or receive, or on the length, language, content or source of mail or publications, except when there is a reasonable belief that the limitation is necessary to protect public safety or institutional order and security. The volume of mailed material that may be kept in the housing units may be limited for fire and safety reasons.
2. Packages may be received from book or tape clubs or mail order firms if approved in advance by the Unit Manager/Facility Lieutenant. Packages are limited to 15 pounds and may not contain any unauthorized item.
3. Correspondence between Inmates of any institution is not authorized. Inmates who are immediate family members may correspond upon written approval from the Warden. Co-defendants may be permitted to correspond pursuant to a Court Order and with the approval of the Warden.
4. Bulk mail that advertises or solicits any item or service that inmates are not authorized to receive will not be forwarded to the inmates but will be removed from the institution and destroyed. Mail order catalogs of popular vendors will be available for use in the library. The Warden can make exceptions to this policy.
1. Correspondence between an inmate and a privileged correspondent will not ordinarily be inspected. However, it may be opened in the presence of the inmate when considered necessary to insure the authenticity of the correspondent or to check for contraband. In any case, it will not be opened outside the presence of the inmate unless the inmate specifically waived this privilege in writing or it is an emergency. Mail in privileged status must be clearly addressed to or received from one of the twelve (12) privileged classifications in this PPD.
2. The following is a complete list of agencies or individuals classified as privileged. Mail addressed as indicated will not be opened for inspection except in the inmate's presence and may be sealed before deposit in the mail collection boxes. Addresses marked with an *, do not required postage.
a. President of the United States, Washington DC
b. Vice President of the United States, Washington DC
c. Members of Congress addressed to appropriate office
d. The Attorney General of the United States and regional offices of the Attorney General
e. Federal or State Courts*
f. The Governor and Council of the State of New Hampshire, State House, Concord, NH 03301*
g. The Attorney General of the State of New Hampshire, State House Annex, Concord, NH 03301*
h. Commissioner of the Department of Corrections*
i. Members of the State Parole Board*
j. Designated Attorney
k. Members of the New Hampshire General Court (House of Representatives, Legislators, Senators *at the Legislative Office Building)
l. County Attorneys
3. The word "PRIVILEGED" must be written on the address side of the envelope in order to assure privileged handling in either in-bound or out-bound mail.
4. Each unit will record all incoming and outgoing legal mail on the legal mail log (Attachment 2). Each inmate will sign the log signifying receipt of incoming legal mail. If an inmate refuses to sign, write "REFUSED" in the signature block.
5. For security concerns, mail from outside sources to inmates shall be received in regular mail envelopes. Mail in courier or inter-office routing envelopes will be forwarded to investigations.
6. Incoming "legal" mail found in violation of this policy shall be forwarded to investigations for appropriate action with the person(s)/firm(s) involved.
1. All inmate outgoing mail must be processed through the Mail Services Unit.
2. All non-privileged outgoing mail is subject to inspection. All correspondence not specifically identified and protected as privileged correspondence is non privileged.
3. All non-privileged outgoing mail of any kind must be placed in the unit mailboxes unsealed. Non-privileged sealed mail will be inspected and returned to the inmate if he/she can be readily identified. If the inmate cannot be identified, the mail will be discarded.
4. At no time will inmates handle, contact or otherwise process mail of other inmates.
5. The mail officer will place outgoing mail in the area mailboxes for pickup. All outgoing mail is required to have the inmate ID number clearly marked on the envelope in accordance with IV G 3 of this policy.
6. The mail officer will pick up mail from the mailboxes according to a schedule. Mail will be picked up six (6) days a week, except holidays.
7. Inmates must pay postage on all mail that cannot be delivered in the messenger mail system.
8. All mail will be stamped on the envelope as follows:
NEW HAMPSHIRE STATE (full facility name)
This mail is forwarded from the (facility name). The contents have not been evaluated and the (facility name) is not responsible for the substance or content of the enclosed correspondence.
9. All outgoing mail will have the inmate's full name as displayed on the inmate ID card, identification number, facility name and address in the upper left-hand corner of the envelope. Full name means the name that appears on the inmate ID card. Nicknames, shortened names or initials will not be accepted. Mail not meeting this criteria will be rejected.
1. All incoming mail to inmates must be processed through the mail unit for inspection. In order to process incoming mail efficiently and correctly, all incoming mail is required to have the inmate's full and ID number as part of the mailing address. Mail received without the ID number will be returned to sender as having insufficient address.
2. Except for lawful and authorized communications regarding unauthorized and/or illegal mail, the confidentiality of mail contents will not be discussed or divulged by personnel assigned to duty in the mail inspection area.
3. The Mail Officer shall:
a. Screen all incoming mail, except packages, and remove privileged correspondence and mail between inmates.
b. Open remaining non-privileged correspondence and inspect it for contraband, checks and money orders.
1) Contraband will be removed and processed according to the current PPD governing inmate property control (9.2).
2) Checks and/or money orders will be removed, logged in the "mail services checks and money orders journal" (A-15 Form) and sent to the inmate Account Office. If an inmate, through legal mail or regular mail receives a check, the check will be forwarded to the mailroom to be logged. All cash received in the mail will be treated as contraband.
3) Photographs, pictures or unsolicited professional photos of children, adult visitors or prospective visitors unclothed or nearly unclothed will be removed.
4) Packages will be logged at the entrance to the Mailroom immediately upon receipt. A copy of the package log will be given daily to the Property Officer upon receipt of the packages.
a) Upon receipt of the packages from the mailroom, the Property Officer will verify the packages received against the package log.
b) Inspect all incoming packages and remove all contraband and unauthorized property.
c) Dispose of all contraband and unauthorized property according to the current policy governing Inmate Property Control (9.2)
d) Books, periodicals and recordings (tapes, discs or records) are not permitted to be sent in packages or letters. Books, magazines, periodicals, newspapers and recordings will not be accepted unless packaged and mailed by a bona fide publisher by direct subscription only.
e) Except for packages mailed or shipped directly from an approved publisher, vendor or manufacturer, the State of New Hampshire or the Department of Corrections or any of their employees will not be responsible for any incoming package to inmates whether mailed through the United States Postal Service or shipped through a regulated parcel carrier such as United Parcel Service, Federal Express, etc. unless the package has been mailed "Certified Mail Return Receipt Requested" or properly received by the parcel carrier.
f) No COD (Cash on Delivery) items are accepted for inmates. All items must be pre-paid.
4. Any incoming mail that contains items that are not authorized to be sent through the mail, cannot be checked for contraband without being destroyed or contains unauthorized items will be returned to the sender and logged in the mailroom. If the sender cannot be readily identified, the addressees will have an opportunity to have the item(s) sent out at their own expense. A grace period of 30 days will be allowed before the material is destroyed.
The mailroom will forward all first class mail and packages to inmates who have been transferred or released (if the inmate has furnished the mailroom a forwarding address) for a period not to exceed 30 days.
1. At no time will inmates handle, contact or otherwise process mail of other inmates.
2. Unit Managers will establish a procedure to insure the timely delivery of mail to inmates living in their respective units. It is the inmates' responsibility to insure that they are present for mail call or make arrangements with the unit mail clerk if their work schedule conflicts with the unit mail call.
3. The Mail Officer will deliver all incoming mail into the custody of a designated Corrections Officer in each housing area according to schedule. Mail will be delivered six (6) days a week, except holidays. Mail will be de delivered within 24 hours of receipt in the mailroom.
4. The designated Corrections Officer in each housing area will insure that mail is given directly to the individual inmate (addressee). Mail will not be left in an unsecured and/or unsupervised location at any time.
1. At no time will inmates handle, contact or otherwise process packages of other inmates.
2. The Property Officer will make a reasonable effort to notify inmates — addressees of the time(s) to pick up packages at the property area within 48 hours, excluding weekends and holidays of receipt at the property room.
3. The Property Officer will insure that packages are given directly to the individual inmate — addressee.
1. When incoming mail, other than bulk mail, third class or fourth class mail, is rejected for any reason, the originator, if readily identifiable, will be notified of the mail rejection by the Mail Officer or Property Officer, whichever position is rejecting the mail (letter or packages). (See IV A C).
2. When outgoing mail is not forwarded through the USPS or regulated carrier, the Mail Officer must notify the inmate in writing and the reasons thereof. (See IV A C)
3. All notices of rejected or non-processed/unforwarded mail and/or packages must be in writing and specifically cite the reason(s) for the rejection or non-processing. (See IV A C).
1. If an inmate or correspondent believes that the LRC or the Investigations Unit improperly rejected mail or packages, he/she may appeal within 10 days of the date they were sent notice of the LRC and/or Investigations Unit's decision to the Warden of the facility where the mail was sent or received for a review of the basis of the rejection. The Warden's decision is final. If the Warden does not overturn the decision, the inmate will have ten (10) days from the date from the date of the decision to send out the material. If after ten days the material is still in the mailroom, it will be discarded/destroyed or returned to the send at the inmate's expense, at the department's discretion.
2. Any appeal to the Warden must include the following information:
a. Inmate's name
b. Item and other contents, if applicable
c. date mail pulled
d. name of the person to whom the letter or package was sent, if applicable
e. Why the item was pulled
f. Item's location.
Without this information, the Warden/mailroom may be unable to process the request and the material may be returned to the sender or destroyed, at the department's discretion.
3. If the mail officer believes that the Investigations Unit or the LRC has passed mail that should have been rejected under this policy, the mail officer may appeal within ten (10) days to the Warden for review. The Warden's decision is final.
4. If an inmate wishes to pursue an appeal of the Warden's decision in federal court, the inmate must exhaust all administrative remedies first by filing a timely appeal with the Warden and filing a grievance with the Commissioner (PPD 1.16).
5. It is the inmate's responsibility to notify the Warden of he/she wishes to appeal the Warden's decision to the Commissioner. Otherwise, rejected mail may be sent out or destroyed, at the department's discretion. Similarly, it is the inmate's responsibility to notify the Warden of he/she wishes to file a court claim after receipt of the Commissioner's decision. Inmates are responsible for notifying the mailroom if they intend to file an appeal with the Warden or Commissioner and must ask the mailroom to preserve the material as evidence. Inmates are responsible for maintaining any mail (in original form) that he/she believes should have been sent out but that is, instead returned to him/her.Standards for the Administration of Correctional Agencies Standards for Adult Correctional Institutions 2-CO-5D-01 4-4487; 4-4489 thru 4496 Standards for Adult Probation and Parole Field Services Standards for Adult Community Residential Services 4-ACRS-6A-06 thru 6A-09 REFERENCES Second Edition. Standards Fourth Edition Standards Third Edition Standards Fourth Edition Standards Other
SANFILIPPO/pf
Attachments
REJECTED MATERIAL
In accordance with the policies and procedures of the Department of Corrections that govern Inmate's mail service, the enclosed correspondence is being returned/rejected for the following reason(s): Outgoing mail will be handled in accordance with PPD 5.26 IV(F) and (G). Incoming mail will be handled in accordance with PPD 5.26(IV)(H).Letter or package at issue Sender or intended recipient Other contents (if any) From: New Hampshire Department of Corrections Mailroom (Indicate Facility) ____________ To: _______________________ Inmate Name: _______________________________ Unit/Cell: _____________ ID # Mail Room Personnel ___________________________________________ Date 1. 2. 3. (If more space is needed please attach a separate sheet of paper) Cash money Unused correspondence materials; postage stamps, envelopes, paper and/or greeting cards Publication not from authorized vendor Check or money order not properly filled out Nude or semi nude pictures of children or adult or prospective visitor Does not meet the criteria of privileged/legal mail Contains contraband or unknown substances Glued, taped or stapled materials affixed to the correspondence material Laminated item(s), cardboard, carbon paper or map(s) Stickers either attached to correspondence material or unused Items larger than 8 × 10 Tattoo patterns and/or gang signs Unauthorized legal documents Unauthorized correspondence between Inmates of any institution Constitutes or contributes to the conduct or operation of a business Materials that would present a clear and present danger of physical or mental disturbance to a Inmate. Depicts or describes procedures for construction or use of weaponry or explosives Depicts or describes methods of escape from correctional institutions Depicts or describes homosexual acts, bestiality, sadomasochism, bondage or pedophilia Describes or discusses violations of institutional rules Contains material that threatens physical harm, blackmail or extortion Encourage activities that may lead to the use of physical violence or group disruption Other: ________________________________________________________________________________ Mail Returned To. OVER (for a description of procedure for appeal of the LRC decision pursuant to PPD 5.26) In the event that this description and PPD 5.26 are different, PPD 5.26 controls YOU HAVE TEN (10) DAYS FROM THE ABOVE DATE TO APPEAL BY SENDING AN INMATE REQUEST SLIP TO THE WARDEN IN CHARGE OF THE FACILITY WHERE THE MATERIAL DESCRIBED ABOVE WAS "MAILED TO" OR "MAILED FROM" PURSUANT TO PPD 5.26IF ANY MATERIAL CONTAINED IN AN ENVELOPE OR PACKAGE THAT HAS BEEN WITHHELD IS DESTROYED OR SENT OUT, ALL MATERIAL CONTAINED IN AN ENVELOPE OR PACKAGE THAT HAS BEEN WITHHELD WILL BE DESTROYED OR SENT OUT.
IF YOU DO NOT FILE A TIMELY APPEAL TO THE WARDEN, AND THE ABOVE MATERIAL WAS MAILED TO YOU, THE MATERIAL WILL BE HELD IN THE MAIL ROOM FOR TEN DAYS AND THEN THE MATERIAL WILL BE RETURNED TO THE SENDER AT YOUR EXPENSE.
IF YOU DO NOT FILE A TIMELY APPEAL TO THE WARDEN AND THE ABOVE MATERIAL WAS MAILED BY YOU, THE MATERIAL WILL BE HELD IN THE MAIL ROOM FOR TEN DAYS AND THEN RETURNED TO YOU, UNLESS OTHERWISE UNSUITABLE TO BE RETURNED, IN WHICH CASE IT SHALL BE RETAINED AS EVIDENCE OR DESTROYED, AT THE DEPARTMENT'S DISCRETION. IF IT HAS NOT BEEN DEEMED SUITABLE FOR RETURN TO YOU, YOU MUST PROVIDE THE INFORMATION SET FORTH BELOW AND ASK THAT IT BE RETAINED.
IF YOU FILE A TIMELY APPEAL WITH THE WARDEN ABOUT MAIL SENT TO YOU OR SEND AN INMATE REQUEST SLIP TO ASK THE MAIL ROOM TO "SEND THE MATERIAL TO A PARTICULAR PERSON" YOU MUST INCLUDE THE FOLLOWING INFORMATION SO THAT THE WARDEN AND/OR MAIL ROOM CAN IDENTIFY THE MATERIAL YOU ARE REFERRING TO: your name, item and other contents, date mail pulled, other person to whom letter or package was sent (if applicable) why the item was pulled, and location of item WITHOUT THIS INFORMATION, THE WARDEN AND/OR MAIL ROOM MAY BE UNABLE TO PROCESS YOUR REQUEST AND THE MATERIAL MAY BE RETURNED TO THE SENDER OR DESTROYED AT THE DEPARTMENT'S DISCRETION.
IF YOU WISH TO PURSUE A CLAIM IN FEDERAL COURT, YOU MUST EXHAUST YOUR ADMINISTRATIVE REMEDIES BY FILING A GRIEVANCE WITH THE COMMISSIONER.
IT IS THE INMATE'S RESPONSIBILITY TO NOTIFY THE WARDEN IF THE INMATE WISHES TO APPEAL THE WARDEN'S DECISION TO THE COMMISSIONER, OTHERWISE REJECTED MATERIAL MAY BE SENT OUT OR DESTROYED BEFORE THE COMMISSIONER HAS A CHANCE TO REVIEW THE APPEAL. LIKEWISE, IF AN INMATE WISHES TO FILE A COURT CLAIM AFTER RECEIPT OF THE COMMISSIONER'S DECISION, THE INMATE MUST AGAIN NOTIFY THE WARDEN, ASKING THE WARDEN TO PRESERVE THE MATERIAL AS EVIDENCE, OR MATERIALS WILL BE SENT OUT OR DESTROYED.
IF AN INMATE FILES AN APPEAL TO THE WARDEN OR COMMISIONER HE/SHE MUST ALSO NOTIFY THE MAILROOM TO HOLD THE MATERIAL AT ISSUE. INMATES ARE RESPONSIBLE FOR MAINTAINING ANY MAIL THAT THEY BELIEVE SHOULD HAVE BEEN SENT OUT BUT THAT IS, INSTEAD, RETURNED TO THEM.
SP — 226 White — Sender Yellow — Mail Room Pink — Inmate