Unpublished Disposition, 884 F.2d 582 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1987)

Donald E. McGANN, also known as Donnald E. McGann, Plaintiff-Appellant,v.Fred J. STOCK, Warden, F.C.I.; John M. Hurley, AssociateWarden; Mr. Tharp, Associate Warden; Fred J.Stock, Warden, F.C.I. et al.,Defendants-Appelllees.

No. 87-2616.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 31, 1989.* Decided Aug. 28, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


Donald McGann, a federal prisoner, appeals from a summary judgment in favor of the defendants, several prison officials and employees. We affirm.


While McGann was incarcerated at the Federal Correction Institute at Safford, Arizona, prison officials refused to deliver correspondence from several California state prisoners addressed to him. Some of this correspondence was from Suzie George, whom McGann alleges is his common law wife. Other letters were from inmates confined at the California Correction Facility at Vacaville, where McGann had previously been confined. The prison officials relied on bureau policy, codified at 28 C.F.R. Sec. 540.17, in refusing to deliver the correspondence. This policy prohibits inmate-to-inmate correspondence except where the inmates are immediate family members, or where the inmate at the other institution is a party or witness to litigation in which both inmates are involved. In addition, the approval of the wardens of each institution is required.

McGann sought permission to write Suzie George, but was allowed to write only about "legal matters." The case management coordinator informed McGann that he would be considered for general correspondence with George if he could provide documentation that she was his wife. Regarding his correspondence with other inmates, he was told that he could not assist inmates confined at other facilities with legal problems because they were not involved in matters of mutual litigation.

McGann filed a Sec. 1983 class action complaint on January 7, 1987, against several prison officials and employees, including Stock, the Warden; Hurley, the Associate Warden; Green, a Case Management Coordinator; and Tharp, the Mail Room Supervisor and Chief Records Officer. The complaint alleged that the Bureau policy governing inmate-to-inmate correspondence violated inmates' first amendment right of free speech, that the defendants wrongfully denied him correspondence privileges in contravention of the Bureau policy and in violation of his right of access to the courts, and that the return of correspondence to the sender before an appeal was a violation of due process. Because a Sec. 1983 suit requires state action, and McGann complained of acts of federal officials, the district court construed the action as a Bivens1  claim. The court also refused to certify the class. McGann subsequently filed an application for injunctive relief to stop alleged retaliation by prison officials for his filing of the civil rights action.

The defendants moved for summary judgment on the basis of their own affidavits. Tharp stated that the correspondence at issue had been returned pursuant to Bureau policy. Hurley stated that McGann never notified him that the returned correspondence was from inmates involved in mutual litigation, or from those whom McGann needed as witnesses for pending litigation. Warden Stock added that McGann never appealed the rejection of any correspondence, as provided for in the regulations.

The district court held that the Bureau's inmate-to-inmate correspondence policy was constitutional and that McGann had failed to demonstrate his compliance with the policy. The court entered summary judgment for the prison officials on August 14, 1987. The court made no mention of McGann's application for injunctive relief for retaliation. McGann filed a timely notice of appeal.


A. Constitutional Challenges to the Correspondence Policy

McGann, on appeal, basically makes two challenges to the constitutionality of the inmate-to-inmate correspondence policy of the Bureau: 1) the policy is an infringement of his first amendment rights; and 2) the policy denies him due process in that the appeal occurs after the correspondence has been returned.

We agree with the district court that the inmate-to-inmate correspondence policy does not violate McGann's first amendment rights. The Bureau's policy is set out in 28 C.F.R. Sec. 540.17. It states:

An inmate may be permitted to correspond with an inmate confined in any other penal or correctional institution, providing the other inmate is either a member of the immediate family, or is a party or a witness in a legal action in which both inmates are involved. The Warden may approve such correspondence in other exceptional circumstances, with particular regard to the security level of the institution, the nature of the relationship between the two inmates, and whether the inmate has other regular correspondence. The following additional limitations apply:

(a) Such correspondence at institutions of all security levels may always be inspected and read by staff at the sending and receiving institutions (it may not be sealed by the inmate); and

(b) The Wardens of both institutions must approve of the correspondence.

The Supreme Court recently upheld a similar restriction on inmate correspondence in Turner v. Safley, 482 U.S. 78 (1987). Turner involved a Missouri state regulation that prohibited inmate-to-inmate correspondence except correspondence "concerning legal matters." Turner, 482 U.S. at 81. In Turner, the Court held that a prison regulation that impinges on the constitutional rights of inmates is valid if it is "reasonably related" to legitimate penological interests. Id. at 89. Several factors are relevant to this determination. They are: 1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it; 2) whether there are alternative means of exercising the rights that remain open to the inmates; 3) the impact that accommodation of the asserted constitutional right will have on other inmates, guards, and prison resources; and 4) the presence or absence of alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Id. at 89-91.

Here, a review of these factors shows that the regulation meets constitutional standards. The Bureau's policy statement on inmate-to-inmate correspondence states several legitimate concerns: "The Warden shall establish and exercise controls to protect individuals, and the security, discipline, and good order of the institution." 28 C.F.R. Sec. 540.12. The regulation is logically connected to these goals: the danger of prisoners orchestrating acts of violence and planning escapes through the mails, see Turner, 482 U.S. at 91-92, is no less in federal prisons than in state facilities. Communications with other inmates is a potential spur to criminal behavior. Id.

Second, like the regulation in Turner, the Bureau's policy does not deprive prisoners of all means of expression. Rather, it bars communication only with a limited class of people with whom prison officials have particular cause to be concerned--other federal and state prisoners. Id. at 92. Accommodation of McGann's asserted right to unfettered inmate-to-inmate correspondence would lead to significantly less safety for guards and other prisoners alike.

Finally, there are no easy alternatives to the Bureau's policy. In Turner, the Supreme Court rejected McGann's contention that inspection of all such correspondence would be a less restrictive alternative, because it would impose more than a de minimis burden on prison officials. Id. at 93.

McGann also contends that the procedure for returning correspondence from inmates violates due process because the appeal occurs after the correspondence has already been returned to the sender. McGann alleges that the notification of the rejection after, or simultaneously with, the return of the rejected correspondence to its sender, denies effective review of the prison's decision to reject the correspondence. Presumably, McGann's argument is that after a successful appeal of a rejection, the inmate would still be deprived of the correspondence until the sender resends the correspondence. He argues that prison officials should hold all rejected mail until an appeal is concluded.

Procunier v. Martinez, 416 U.S. 396 (1974), discusses what due process requires when prison officials reject correspondence from or to an inmate. The prison officials must notify the inmate of the rejection, and give him a reasonable opportunity to protest the decision. 416 U.S. at 418-19. In addition, inmate protests must be reviewed by an official other than the one who originally rejected the correspondence. Id. The Court determined that these minimum procedures satisfied due process. The due process requirements of Procunier have been incorporated into the Bureau's correspondence policy,2  and were followed in McGann's case.

The Court did not address whether prison officials were to retain the correspondence pending an appeal. It held only that the inmate must have a "reasonable opportunity" to protest the rejection of correspondence. Due process is flexible and calls for such procedural protection as the particular situation demands. Dash, Inc. v. Alcoholic Beverage Control Appeals Bd., 683 F.2d 1229, 1233 (9th Cir. 1982). The general requirement of procedural due process is that the parties whose rights are affected are entitled to be heard at a meaningful time and in a meaningful manner. Orloff v. Cleland, 708 F.2d 372, 379 (9th Cir. 1983). In analyzing whether the timing of a hearing comports with due process, the Supreme Court has set out several factors to consider: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and 3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

In analyzing these factors, we see no due process violation. Here, a constitutional right is infringed by the procedures used in rejecting correspondence--free speech. These interests have been sufficiently outweighed, however, by the prison's needs to assure security and control, as discussed above. The second factor requires us to evaluate the possibility of an erroneous determination, and whether alternative procedures would minimize the deprivation. Here, McGann argues that if prison officials hold the rejected correspondence until the appeal is complete, it would minimize the length of the deprivation, assuming a successful appeal.3  This suggestion is logical, but it must be balanced against the third factor concerning the government's interests.

It would be unreasonable, as an administrative matter, to require the prison to hold all rejected correspondence pending an appeal. Prison officials have no way of knowing whether an inmate will appeal the rejection of a particular piece of correspondence, and the requirement of holding and safely storing correspondence for an indefinite period of time is burdensome. The Bureau's decision to return correspondence upon rejecting it does not constitute a violation of procedural due process. An inmate's opportunity to appeal a rejection is not significantly affected. The only further deprivation is one of timing. If a subsequent appeal is successful the sender can simply re-send the correspondence.

B. Claim that Prison Officials Didn't Follow Bureau Policy

McGann argues that the prison officials did not follow the Bureau's policy in his case,4  and thus denied him access to the courts by refusing to deliver correspondence from inmates of other prisons. The prison officials state that McGann never appealed anytime a letter was refused, and never informed them that the letters involved legal matters in which the other inmate was a party or a witness, and which involved both of them. Without this information, the prison officials were entitled to rely on the Bureau policy and deny delivery. The district court did not err in granting summary judgment where there was no evidence that McGann informed the prison officials of the nature of the correspondence at issue.

McGann's final argument on appeal is that the district court erred in failing to grant injunctive relief to stop the alleged harassment by prison officials in retaliation for having filed this lawsuit. It does not appear that the district court specifically addressed this issue in the judgment, or any of its prior orders. This issue is now moot, however, because effective relief can no longer be granted. See In re Combined Metals Reduction Co., 557 F.2d 179, 187-89 (9th Cir. 1977). McGann requested relief from alleged harassment pending final judgment in the action. Because the court already granted judgment, we cannot grant any effective relief. Also, McGann has subsequently been transferred to another facility,5  so any request for an injunction against prison officials at Safford is moot for this reason as well. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986); Wiggens v. Rushen, 760 F.2d 1009, 1010-1011 (9th Cir. 1985).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3


In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court implied a damage remedy against federal officers for violation of constitutional rights


The Bureau policy regarding the rejection of correspondence is codified at 28 C.F.R. Sec. 540.13:

When correspondence is rejected, the Warden shall notify the sender in writing of the rejection and the reasons for the rejection. The Warden shall also give notice that the sender may appeal the rejection. The Warden shall also notify an inmate of the rejection of any letter addressed to that inmate, along with the reasons for the rejection and shall notify the inmate of the right to appeal the rejection. The Warden shall refer an appeal to an official other than the one who originally disapproved the correspondence. The Warden shall return rejected correspondence to the sender....


Although McGann was not notified of the rejection of mail, he never sought to appeal the rejection of any correspondence


It is not clear whether McGann appeals the procedures used to reject correspondence from Suzi George as well as the other inmates. If so, his argument may well be moot because she was released from prison by the time the district court made its decision. Secondly, McGann never presented evidence that Suzi George was his common law wife, while the government presented evidence that McGann was legally married to another woman at the time he claimed Suzi George was his wife


According to the government's brief, McGann is currently incarcerated at FCI-Pleasanton in Dublin, California