Muhammad v. Pitcher

• Decision Date: 21 September 1994
• Docket Number: No. 92-2364,92-2364
• Citation: 35 F.3d 1081
• Parties: Rakim A. MUHAMMAD, Plaintiff-Appellee, v. Terry A. PITCHER; Dorothy Stiller; and Laura Siers, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1081

35 F.3d 1081

Rakim A. MUHAMMAD, Plaintiff-Appellee, v. Terry A. PITCHER; Dorothy Stiller; and Laura Siers,

Defendants-Appellants.

No. 92-2364.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 5, 1993.

Decided Sept. 21, 1994.

Rakim A. Muhammad, pro se.

Daniel E. Manville, Detroit, MI (argued and briefed), for plaintiff-appellee.

Chester S. Sugierski, Jr., Linda M. Olivieri (argued and briefed), Office of Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellants.

Before: LIVELY, JONES and SILER, Circuit Judges.

JONES, J., delivered the opinion of the court, in which LIVELY, J., joined. SILER, J. (pp. ---- - ----- ), delivered a separate dissenting opinion.

NATHANIEL R. JONES, Circuit Judge.

In this 42 U.S.C. Sec. 1983 civil rights action, Plaintiff-Appellee Rakim A. Muhammad, an inmate at the Standish Correctional Facility in Michigan, challenges Michigan Department of Corrections' (MDOC) policy of treating inmate mail from the State Attorney General's Office as ordinary mail rather than as confidential legal mail. The district court found the policy to be unconstitutional. We affirm.

I

On September 17, 1991, pursuant to MDOC policy directive BCF-63.03, Muhammad formally requested that prison staff open all of his legal mail only in his presence. Policy directive BCF-63.03 provides that, although ordinary incoming mail "shall be opened and inspected for money or contraband prior to delivery to the prisoner," legal mail is to be treated differently:

Upon written request by a prisoner to the institution's mail room supervisor, mail which is clearly designated as being from the prisoner's designated attorney, the courts, or from the Legislative Correctional Ombudsman, shall be opened and inspected for contraband in the prisoner's presence.

Similarly, MDOC policy directive DWA-61.01 provides:

A prisoner shall also have the right to carry on confidential and uncensored correspondence with his/her attorney, the courts and legal assistance organizations such as the American Civil Liberties Union, the State Appellate Defender's Office and Prison Legal Services.

Despite Muhammad's request, on October 9, 1991, Defendants-Appellants Dorothy Stiller, the prison's Mail Room Supervisor, and Laura Siers, a prison employee working in the mailroom, opened mail addressed to Muhammad that was clearly marked as coming from State Attorney General Frank Kelley. It turned out that the envelope that Defendants opened contained no confidential correspondence.

Stiller and Siers opened the letter from the Attorney General pursuant to a memorandum from Marjorie Van Ochten, Administrator of MDOC's Hearings Division, dated February 7, 1991. The memo stated that "mail to a prisoner from the Attorney General's Office need not be treated as legal mail and thus confidential." J.A. at 57. The express basis for this policy is that "[s]ince the Attorney General's Office (or a prosecutor) represents the State, there is no requirement of confidentiality in correspondence with the Attorney General or prosecutors." Id.

Muhammad filed the present suit pro se, requesting damages, an injunction, and a declaratory judgment. Both parties filed motions for summary judgment. ¹ The district court appointed counsel for plaintiff, and, after holding a hearing, granted partial summary judgment to Defendants on the issue of the availability of damages, ² and granted partial summary judgment awarding declaratory relief to Plaintiff. The court ruled that Defendants' practice--that of opening outside of Plaintiff's presence properly marked mail addressed to Plaintiff from the Attorney General's Office--was unconstitutional. This appeal followed.

II

"We review a district court's grant of summary judgment de novo .... [I]n a motion for summary judgment, 'credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.' " Russo v. City of Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)).

A

Defendants' first contention on appeal is that Muhammad has no interest in maintaining confidentiality regarding mail from the Attorney General, and consequently has no right to have mail from the Attorney General's Office opened in his presence. In the court below, Defendants emphasized that the Attorney General's Office represents the prison and so is adverse to the inmates. Similarly, in their brief on appeal, Defendants find it "difficult to imagine what confidentiality Plaintiff can claim in mail sent to him by the Attorney General, acting as opposing counsel in litigation initiated by Plaintiff." Defendants Br. at 8.

This statement indicates a surprising lack of imagination. As the district court and Plaintiff point out, the Attorney General's Office frequently serves prisoners in the very same way that legal assistance organizations such as the State Appellate Defender's Office and Prison Legal Services do. An inmate may correspond with the Attorney General for many reasons: to inquire about legal remedies, to negotiate about future prosecutions, to complain about prison conditions, etc. Indeed, many divisions in the Michigan Attorney General's Office--including Civil Rights and Civil Liberties, Consumer Protection, Criminal, Environmental Protection, Mental Health, Public Health--could take action on behalf of an inmate, or on behalf of the state based upon information provided by an inmate, even against MDOC or its employees.

Defendants also argue that even if Plaintiff's mail to the state Attorney General's Office is entitled to legal mail status, mail coming back from this office is not. They contend that most of the documents sent from the Attorney General's Office are public documents available to anyone. This argument is meritless. It takes very little imagination to realize that any response from the Attorney General to a confidential inquiry may well be sensitive and confidential itself.

The conclusion that mail from an attorney general to an inmate may be confidential should not be surprising, for courts have consistently recognized that "legal mail" includes correspondence from elected officials and government agencies, including the offices of prosecuting officials such as state attorneys general. See Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Guajardo v. Estelle, 580 F.2d 748, 758 (5th Cir.1978); Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir.1976); Faulkner v. McLocklin, 727 F.Supp. 486, 490 (N.D.Ind.1989); Thornley v. Edwards, 671 F.Supp. 339, 341 (M.D.Pa.1987); Carty v. Fenton, 440 F.Supp. 1161, 1163 (M.D.Pa.1977); Laaman v. Helgemoe, 437 F.Supp. 269, 322 (D.N.H.1977); Stover v. Carlson, 413 F.Supp. 718, 723 (D.Conn.1976); Preston v. Cowan, 369 F.Supp. 14, 23 (W.D.Ky.1973), aff'd in part and vacated in part on other grounds, 506 F.2d 288 (6th Cir.1974). We can find no case that reaches a contrary conclusion.

The Stover case is directly on point. A group of inmates at the Federal Correctional Institute in Connecticut argued that mail to an inmate from federal, state, or local prosecuting authorities should be treated as confidential legal mail. 413 F.Supp. at 723. The court agreed, holding that such mail "is as intimately related to the right of access to the courts as is correspondence with a private attorney." Opening such mail outside of an inmate's presence "effectively chills access to a governmental entity that is intimately related to the administration of justice." Id. The court in Carty, 440 F.Supp. at 1163, reached the same conclusion.

Similarly, the Federal Bureau of Prisons mandated that Department of Justice mail to federal prisoners, including mail from U.S. attorneys, is to be treated as legal mail, unless the mail is from the Bureau of Prisons itself. 28 C.F.R. Sec. 540.2. Even MDOC itself defines "legal mail" to include mail sent to government officials. Administrative Rule 791.6603(6).

Therefore, correspondence from the Attorney General's Office is no different than correspondence from any other legal assistance organization that MDOC already treats as legal mail. As the district court held, "a prisoner has a fundamental interest in maintaining the confidentiality of such correspondence." J.A. at 142.

B

Defendants' second contention on appeal is that, because the actual piece of mail that they opened was not itself confidential, Muhammad has failed to prove that he suffered any actual prejudice. This argument, however, overlooks the chilling effect that the challenged policy has on inmates who desire to correspond confidentially with the state Attorney General. As the district court explained, "a prisoner who suspects that a grievance may not remain confidential may fear retaliation by a corrections officer." J.A. at 143. Consequently, the court held that the actual contents of the letters opened by defendants and the number of lawsuits that Muhammad has filed are irrelevant to the constitutionality of the practice of opening mail addressed to Muhammad from the Attorney General outside his presence. The chilling effects described [in the quote above] are simply not addressed, and clearly not dispelled, by the defendants assertions.

J.A. at 164.

We agree with this analysis. "It is well-settled that a chilling effect on one's constitutional rights constitutes a present injury in fact." G & V Lounge v. Michigan Liquor Control Commission, 23 F.3d 1071, 1076 (6th Cir.1994); accord NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) ("The threat of sanctions may deter [the exercise of First Amendment freedoms] almost as potently as the actual application of sanctions.").

The actual...