Unpublished Disposition, 940 F.2d 670 (9th Cir. 1988)

No. 90-35699.

United States Court of Appeals, Ninth Circuit.

Before ALARCON, FERGUSON and CYNTHIA HOLCOMB HALL, Circuit Judges

MEMORANDUM^** 

Frank Whiteshield, a prisoner at the Oregon State Penitentiary in Salem, asserts that his First Amendment and due process rights were violated when corrections officers at the prison opened a padded envelope containing legal briefs outside his presence and then confiscated the envelope. He sued prison staffers under 42 U.S.C. § 1983. Defendants successfully moved for summary judgment, and Whiteshield now appeals. We affirm.

The relevant facts are as follows. On or about September 13, 1988, a padded mailing envelope hand-addressed to plaintiff, with the words "pro se" after his name, was received and opened by staffers at the prison mailroom. Although the envelope showed no return address or other markings to indicate that it contained legal mail, it contained copies of legal briefs sent by the Ninth Circuit Clerk's Office.

The opened envelope was then stapled shut and handled according to prison policy for delivery of legal mail; that is, it was delivered to Whiteshield's counselor, who allowed him to remove and retain the briefs. However, the counselor refused to permit him to keep the envelope, informing him that the padded envelope was considered contraband because drugs could be concealed in the padding. The mailer was confiscated, photocopied and destroyed. Whiteshield then filed this action, seeking declaratory and injunctive relief and damages.

DISCUSSION

Whiteshield contends that defendants violated his First Amendment rights and prison regulations by opening the envelope and inspecting its contents outside his presence. The district court acknowledged that Wolff v. McDonnell, 418 U.S. 539 (1974), and former Oregon Administrative Rule ("OAR") 291-131-030 require that legal mail be opened only in the presence of the inmate/addressee. However, it ruled that because the envelope was not identified as legal mail and carried no return address, the mailroom's action was justified by concerns for prison security and was negligent at most. We agree.

To prevail on his Sec. 1983 claim, Whiteshield must establish that he "was deprived of a right secured by the Constitution or laws of the United States." Kennedy v. Los Angeles Police Dept., 901 F.2d 702, 705 (9th Cir. 1989) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Defendants argue that no such right existed here and point out that Wolff itself is ambiguous on the issue:

[T]he constitutional status of the rights asserted, as applied in this situation, is far from clear. While First Amendment rights of correspondents with prisoners may protect against the censoring of inmate mail ..., this court has not yet recognized First Amendment rights of prisoners in this context.

Wolff, 418 U.S. at 575-76. The Court assumed without deciding that such a right existed, and concluded that "petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires." Id. at 577. See also Thornburgh v. Abbott, 490 U.S. 401, 407-413 (1989) (discussing application of First Amendment to incoming prison mail generally); Royce v. Sup. Ct. of Washington, 779 F.2d 573 (9th Cir. 1986) (allowing prisons to inspect inmates' outgoing legal mail for contraband). As in Wolff and Royce, we need not decide whether the policy at issue is constitutionally required, since we hold that the prison's error was de minimus and caused Whiteshield no damage.

As the district court noted, the envelope in question was addressed by hand on a generic U.S. Post Office "Official Mail" label, and carried no return address or postmark. The only indicator of its legal nature was the words "pro se" after the plaintiff's name. Furthermore, a padded mailer, unlike a standard letter, may contain bulky contraband items such as drugs, matches or weapons. Presented with these facts, the mailroom staff acted reasonably by opening and inspecting the contents before realizing that they were legal in nature.¹ 

By contrast, federal prison regulations require that all legal mail may be opened unless it is clearly labeled as such and carries the return address and name of the sending attorney or court. 28 C.F.R. Sec. 540.19 (specifying requirements). In upholding the regulations, the Fourth Circuit held that they were "reasonably related to [the] legitimate penological interests" of security and administrative concerns. U.S. v. Stotts, 925 F.2d 83, 89 (4th Cir. 1991) (citing Turner v. Safley, 482 U.S. 78 (1987)). The system also functions as a "ready screening technique" for mailroom workers, and guarantees that legal mail will be correctly recognized as such. Id.; see also Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974) (terming such requirements "entirely appropriate"). Although Oregon has not adopted such a restrictive rule, the envelope in question might well have been handled correctly if it had born a Ninth Circuit return address or stamp.

Finally, Whiteshield has not alleged that opening the letter caused him any compensable damages, such as compromising his access to the courts or disclosing confidential information about his claims against the prison system. Injunctive relief is also inappropriate, because he has not shown that the violation is likely to recur. Accord, Morgan v. Montanye, 516 F.2d 1367 (2d Cir. 1975); cf. Jensen v. Klecker, 648 F.2d 1179 (8th Cir. 1981) (summary judgment improper where complaint alleges that legal mail was frequently mishandled).

III. Due Process ClaimWhiteshield also contends that the confiscation of the padded mailer violated former OAR 291-131-035 and 291-131-040, which require notice and allow for a hearing when mail is being confiscated.²  He claims that its confiscation without a hearing violated procedural due process, because the mailer was his property, similar to two others he already owned, and was needed as evidence in a separate lawsuit challenging prison mail-handling procedures.

The district court did not decide whether the mandatory language of the regulations gave Whiteshield a property interest in the envelope and/or in a confiscation hearing. Instead, it accepted the prison's argument that the envelope itself was not "mail" but merely packaging material, and was deemed contraband by prison authorities. Although no regulation expressly defines padded envelopes as either "contraband" or "non-mail," we must defer to the expertise of prison administrators in such matters. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (affording broad discretion to prisons to regulate incoming mail in the interests of maintaining "order and security"). Thus, we accept defendants' interpretation of their own regulations and affirm the grant of summary judgment on the confiscation claim as well.³ 

CONCLUSION

The judgment of the district court is AFFIRMED.