Stanley L. Boswell, Plaintiff-appellant, v. Kenneth L. Mcginnis; Raymond G. Toombs, Defendants-appellees, 52 F.3d 324 (6th Cir. 1995)

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US Court of Appeals for the Sixth Circuit - 52 F.3d 324 (6th Cir. 1995) April 12, 1995

Before: JONES, NELSON, and RONEY,*  Circuit Judges.

ORDER

Stanley L. Boswell appeals a district court order dismissing his civil rights complaint filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary, declaratory, and injunctive relief, Boswell sued Raymond Toombs, warden of the Ionia Maximum Correctional Facility, and Kenneth McGinnis, director of the Michigan Department of Corrections (MDOC), alleging that the defendants violated his constitutional rights by upholding a policy which permitted prison employees to open mail that Boswell had received from the Michigan Attorney General's office outside of his presence. Boswell filed his suit in state court and the defendants subsequently removed the case to federal court. Over Boswell's objections, the district court adopted the magistrate judge's report and recommendation, and granted summary judgment for the defendants. Boswell has filed a timely appeal. On appeal, he requests the appointment of counsel.

Upon review, we conclude that this action should be remanded to the district court for reconsideration of its decision in light of this court's recent decision in Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir. 1994). In Muhammad, this court held that mail received by a prisoner from the state Attorney General's office is to be considered "legal mail" that is to be opened in the prisoner's presence. Id. at 1083-86.

Accordingly, we deny Boswell's request for counsel and vacate and remand the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable Paul H. Roney, Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation