191 F.3d 540 (4th Cir. 1999), 97-7111, Altizer v. Deeds

Docket Nº:97-7111
Citation:191 F.3d 540
Party Name:FRANK ERVIN ALTIZER, JR., Plaintiff-Appellee, v. GEORGE DEEDS, Defendant-Appellant, and RICHARD FLEMING; SERGEANT MINTON, Defendants, STEVEN H. GOLDBLATT, Amicus Curiae.
Case Date:September 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 540

191 F.3d 540 (4th Cir. 1999)

FRANK ERVIN ALTIZER, JR., Plaintiff-Appellee,

v.

GEORGE DEEDS, Defendant-Appellant,

and

RICHARD FLEMING; SERGEANT MINTON, Defendants, STEVEN H. GOLDBLATT, Amicus Curiae.

No. 97-7111

United States Court of Appeals, Fourth Circuit

September 7, 1999

Argued: March 2, 1999

Page 541

COUNSEL ARGUED: Pamela Anne Sargent, Assistant Attorney General, Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Ashley N. Bailey, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amicus Curiae. ON BRIEF: Mark L. Earley, Attorney General, Criminal Law Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant. Steven H. Goldblatt, Director, Christopher M. Anzidei, Student Counsel, Jeremy G. Suiter, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amicus Curiae.

Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.

Reversed by published opinion. Judge Williams wrote the majority opinion, in which Judge Widener joined. Judge Michael wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

George Deeds, warden of the Keen Mountain Correctional Center (KMCC), appeals, through the Attorney General for the Commonwealth of Virginia, the district court's order granting Frank Altizer, a Virginia prisoner, partial summary judgment in Altizer's 42 U.S.C.A. § 1983 (West Supp. 1999) action alleging interference with his outgoing mail. The district court held that Warden Deeds's practice of routinely opening and inspecting outgoing mail for contraband without any particularized suspicion, from sometime in 1994 until January 1996, violated Altizer's free speech rights under the First Amendment. On appeal, we conclude that Warden Deeds's practice of opening and inspecting Altizer's outgoing mail was reasonably related to legitimate penological interests, and, therefore, constitutional. Accordingly, we reverse.

I.

Altizer, a Virginia inmate and one of this Court's most frequent filers,1 filed suit against Warden Deeds pursuant to 42

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U.S.C.A. § 1983 (West Supp. 1999). In his rambling pro se complaint Altizer alleged, among other things, that Warden Deeds violated his constitutional rights by ordering prison officials to open and inspect his outgoing mail -one piece of which contained a homemade knife -for contraband. Altizer sought injunctive and monetary relief.

Warden Deeds filed an answer, a motion to dismiss, a motion to strike, a motion for sanctions, and a supplemental motion to dismiss. The district court notified Altizer of the motion to dismiss pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Altizer responded by filing two short briefs. After reviewing the record, the district court granted Warden Deeds's motion to dismiss in part and denied it in part. The district court also denied Warden Deeds's other motions.

In so ruling, the district court -after initially describing the complaint as "nonsensical" -charitably construed Altizer's complaint as raising the following allegation:

On January 7, 1996, Altizer was informed that any legal mail he addressed to "a clerk of court, two (2) state assistant attorneys general, and one attorney had to be opened, inspected and read, before it would be delivered" to the KMCC mailroom for processing. This policy was implemented by [Warden] Deeds only as to Altizer and inmates for whom he had provided legal assistance, in retaliation for Altizer's activities as a "writ writer" and for his prosecution of Altizer v. Angelone, Civil Action No. 96-0003-R.2

(J.A. at 145 (construing Complaint ¶¶ 1-5, 7-9, & 15).)3 The district court concluded that this allegation, construed in the light most favorable to Altizer, possibly stated violations of the Equal Protection Clause and the First Amendment. Moreover, the district court concluded that Warden Deeds was not entitled to qualified immunity and that Altizer's suit was not barred by the "three strikes" provisions of 28 U.S.C.A. § 1915(g) (West Supp. 1999).

After a lengthy period of discovery, the parties filed cross motions for summary

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judgment.4 On June 13, 1997, the district court granted both motions in part and denied both motions in part. Of particular importance here, the district court granted summary judgment for Altizer in part, finding that Warden Deeds had violated Altizer's First Amendment right to freedom of speech by opening and inspecting every piece of his outgoing mail.5 Because Altizer had alleged no factual basis for compensatory or punitive damages, however, the district court awarded him only $1.00 in nominal damages. 6

Both parties filed motions for reconsideration. In Warden Deeds's motion, he once again argued that Altizer's suit was barred by the "three strikes" provisions of § 1915(g). In support, Warden Deeds submitted records of Altizer's prior litigious history reflecting that Altizer had far more than three actions dismissed as frivolous by the district court alone. The district court had previously found the "three strikes" provision inapplicable because Altizer filed his action on January 23, 1996, approximately three months before the effective date of the Prison Litigation Reform Act (PLRA), which amended § 1915(g). In its opinion on reconsideration, the district court noted that Warden Deeds provided no retroactivity "analysis" in his motion to dismiss, and could not raise specific supporting arguments in support of a motion for relief from judgment. Subsequently, however, the district court granted Warden Deeds's motion for stay of its order pending a decision by this Court on Warden Deeds's appeal.

On appeal, Warden Deeds vigorously pursues the district court's failure to apply the PLRA's "three strikes" provision to Altizer's complaint. In addition, Warden Deeds argues that the district court erred in holding that the First Amendment bars prison officials from opening and inspecting an inmate's outgoing mail. In the alternative, Warden Deeds contends that such a right was not clearly established and that, as a result, he was entitled to qualified immunity. Warden Deeds also argues that the district court erred in awarding Altizer $1.00 in damages because Altizer failed to demonstrate that the mail allegedly interfered with was his own. Finally, Warden Deeds argues that the district court granted summary judgment to Altizer in large part due to pleadings and other documents that Altizer failed to serve on counsel for Warden Deeds in direct violation of Rule 5(a) of the Federal Rules of Civil Procedure. We address these claims in turn.7

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II.

On appeal, we must first consider whether the "three strikes" provision of the PLRA applies retroactively to a prison litigant who filed his § 1983 action before the PLRA's effective date. Altizer filed the § 1983 action forming the basis for this appeal on January 23, 1996, prior to the enactment of the PLRA. In accordance with pre-PLRA law, a magistrate judge granted Altizer's request to proceed in forma pauperis (IFP) on April 22, 1996.8 Under pre-PLRA law, a prisoner granted IFP status did not have to pay any filing fees when bringing a § 1983 action.

On April 26, 1996, the PLRA was enacted into law. Section 804 of the PLRA amended 28 U.S.C.A. § 1915. As a result, prisoners proceeding IFP are now required to pay the full filing fee. IFP status simply allows a prisoner to pay the filing fee in installments. See 28 U.S.C.A. § 1915(b) (West Supp. 1999). Further,§ 804 of the PLRA created a new subsection (g), which reads as follows:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C.A. § 1915(g).

On May 6, 1996, Warden Deeds filed a motion to dismiss on the grounds that Altizer's suit was barred by the "three strikes" provision of § 1915(g). With the motion to dismiss, Warden Deeds attached the final orders from the last seven cases filed by Altizer -all of which were filed within the six months preceding the instant case -showing that all seven were dismissed as frivolous by the district court. In fact, there is evidence that Altizer has filed at least 107 unmeritorious lawsuits in federal and state court since he was incarcerated.9

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On August 26, 1996, the district court denied Warden Deeds's motion to dismiss. In particular, the district court found the "three strikes" provision inapplicable because Altizer filed his action on January 23, 1996, approximately three months before the effective date of the PLRA. On June 23, 1997, Warden Deeds moved the district court to reconsider its "three strikes" ruling. In its opinion denying Warden Deeds's motion for reconsideration, the district court noted that Warden Deeds had provided no retroactivity"analysis" in his motion to dismiss.

All five Circuit Courts of Appeals that have addressed whether actions that have been dismissed as frivolous prior to the effective date of the PLRA count toward an inmate's three strikes have answered the question affirmatively. See Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997); Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 144 (3d Cir. 1997); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir...

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