Fontroy v. Beard

• Decision Date: 03 May 2007
• Docket Number: Civil Action No. 02-2949.
• Citation: 485 F.Supp.2d 592
• Parties: Derrick Dale FONTROY, I., Theodore B. Savage, J.D., and Aaron Christopher Wheeler v. Jeffrey A. BEARD, David Diguglielmo, and Kim Ulisny.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 592

485 F.Supp.2d 592

Derrick Dale FONTROY, I., Theodore B. Savage, J.D., and Aaron Christopher Wheeler v. Jeffrey A. BEARD, David Diguglielmo, and Kim Ulisny.

Civil Action No. 02-2949.

United States District Court, E.D. Pennsylvania.

May 3, 2007.

Derrick Dale Fontroy, I., Labelle, PA, Pro se.

Theodore B. Savage, J.D., Cresson, PA, Pro se.

Aaron Christopher Wheeler, Graterford, PA, Pro se.

MEMORANDUM OPINION

SAVAGE, District Judge.

The plaintiffs, state prisoners, challenge the constitutionality of the Pennsylvania prison mail policy that permits prison staff to open incoming legal and court mail that does not bear a prison issued control number outside the presence of the inmates. That opening a prisoner's legal mail outside his presence impinges his First Amendment right to freedom of speech is established. Whether the Pennsylvania Department of Corrections' ("DOC") legal and court mail policy infringes that right is the issue. Answering this question requires a determination of whether the policy is reasonably related to a legitimate penological interest. The inquiry is governed by the test set forth by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which the Third Circuit recently applied to New Jersey's prison legal mail policy in Jones v. Brown, 461 F.3d 353 (3d Cir.2006), cert. denied, ____ U.S. ____, 127 S.Ct. 1822, 167 L.Ed.2d 330 (2007).

After reviewing the record and drawing all inferences in favor of the defendants, I conclude that the DOC's current policy for processing legal and court mail does not meet constitutional standards because the DOC has failed to demonstrate a valid reasonable connection between the asserted legitimate penological interest and the mail regulation. Therefore, summary judgment will be entered in favor of the plaintiffs and against the defendants, and an injunction enjoining the defendants from enforcing the current legal and court mail policy will be issued.

Procedural Background

The defendants moved to dismiss the amended complaint¹, arguing that the current legal and court mail policy does not violate the plaintiffs' constitutional rights because it is a rational response to a legitimate governmental interest, specifically prison safety and security. After the plaintiffs filed a motion for summary judgment, the parties were notified that the defendants' motion to dismiss would be considered as a cross-motion for summary judgment.²

The parties, when the plaintiffs were represented by counsel,³ engaged in discovery to develop facts necessary to disposition of the cross motions for summary judgment. Relevant documents were produced, declarations were submitted, and depositions of essential witnesses were taken. Oral argument, with the plaintiffs participating via teleconference, was heard.

Although the parties disagree upon numerous facts, there is no disagreement as to the material facts regarding the history of the DOC's mail policy, the development of its current legal and court mail regulation, and its implementation. Thus, this action may be decided on the summary judgment record.⁴

Current Legal Mail Policy

Prior to October 2002, all legal mail was opened in front of the inmate to whom it was addressed. The delivery practice varied throughout the prison system's twentysix institutions. In some prisons, the mail was delivered to the inmates at their housing units. At SCI — Graterford, inmates in general population received legal mail through a window at a command center at the hub of the cell blocks, and inmates who were not in general population received their mail on their cell blocks. In every instance, it was opened in their presence.

Currently, mail from attorneys may be delivered to the prison either by hand delivery during normal business hours or through the United States Postal Service. The former, which is presented unsealed, is inspected outside the inmate's presence but in the presence of the courier, resealed, and personally delivered to the inmate addressee.⁵ This practice is not challenged.

Posted mail is treated differently, depending on whether the sending attorney affixes a registered control number on the envelope or package. Mail bearing a control number,⁶ which is assigned by the DOC to attorneys, who certify that they will not transmit contraband or anything other than "essential, confidential, attorney-client communication" through the mail, is opened and inspected only in the presence of the inmate.⁷ Without a control number, mail from an attorney is processed as regular mail. It is opened and checked for contraband in the prison mail room before delivery to the inmate inside the prison.

Later, in July of 2004, the policy was modified to include court mail in the control number procedure. Prior to that time, court mail had been opened only in the inmate's presence. Now, mail received from courts bearing a control number is processed the same as legal mail having a control number; and, court mail without a control number is treated like regular mail and opened in the mail room outside the inmate's presence.

The Turner Analysis

Prison regulations, when challenged on constitutional grounds, are reviewed under the standard established by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). The Turner Court set out a twopart test for considering a challenge to a prison regulation. A court must first determine whether there is a valid, rational connection between the prison regulation and a legitimate governmental interest. If the connection is established, the court then evaluates three factors: (1) whether alternative means of exercising the right remain open to inmates; (2) the impact accommodation of the asserted prison right will have on the prison generally; and (3) whether there is an absence of ready alternatives. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254. Only if the regulation passes the first step, the rational connection standard, are the remaining three factors reached.

In examining a prison regulation, a court must be cognizant of the "delicate balance" that prison administrators must reach "between the order and security of the internal prison environment and the legitimate demands of those on the `outside' who seek to enter that environment." Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Accordingly, courts afford prison administrators "considerable" deference in regulating interactions between prisoners and the outside world. Id. at 408, 109 S.Ct. 1874.

The Turner analysis begins with determining whether there is a rational connection between the prison regulation and the asserted legitimate governmental interest. This requirement guards against arbitrary and irrational policies, and exaggerated responses to valid concerns. Jones, 461 F.3d at 360 (quoting Turner, 482 U.S. at 89-90, 107 S.Ct. 2254).

The burden of coming forward with the legitimate governmental interest is on the DOC. See Turner, 482 U.S. at 89, 107 S.Ct. 2254. The DOC must demonstrate the rational connection between the regulation and that interest. At the same time, substantial deference is given to those running the prison in determining the means of accomplishing the legitimate goals of the corrections system, especially where security is implicated. Overton v. Bazzetta, 539 U.S. 126, 132-33, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003); Fraise v. Terhune, 283 F.3d 506, 516 (3d Cir.2002).

Addressing the first step, the defendants have presented a history of the DOC's privileged mail policy which has changed over time in response to security concerns, two investigative reports prepared by the DOC, and the testimony of the Secretary of Corrections and those involved in mail handling at Graterford. They contend that this evidence justifies the DOC's legal and court mail policy.

The penological interest put forth by the defendants is protecting the safety and security of the prisons. In its recent decision, Jones v. Brown, 461 F.3d 353 (3d Cir.2006), the Third Circuit reiterated its holding in Bieregu v. Reno, 59 F.3d 1445 (3d Cir.1995), and confirmed that prison safety and security is a legitimate and valid penological interest. Jones, 461 F.3d at 361, 364. Thus, if there is a valid threat to safety and security, the inquiry turns to the rationality of the DOC's response to the perceived threat to that penological interest.

Experience has shown that mail can be used to introduce contraband into the prisons and into the hands of inmates. Contraband making its way through the mails includes the harmless — such as greeting cards and personal letters — and the dangerous — such as escape tools, drugs and weapons. According to Jeffrey A. Beard, Secretary of Corrections, and Kim Ulisny, Mail Room Supervisor at Graterford, prison officials have confiscated cash, drugs, items that could be fashioned into weapons or implements of escape, explosives, biohazards, pornography and other items that compromise security from the mail.⁸ Some contraband has been found in mail that appeared to have been sent by an attorney or a court, the sender using a phony letterhead and envelope.⁹ The DOC has not quantified these instances. Instead, it has presented only a few incidents occurring throughout the state system over a period of thirteen years.

The two studies cited by the defendants, the Escape Report, issued by the DOC in November 1999, and the Pennsylvania Department of Corrections Privileged Correspondence Inspection and Contraband Report, dated September 20, 1999, ("September 1999 Report") reported that contraband had been smuggled into the prison through mail that had been designated as legal mail. These internal reports drew on evidence developed over the years in Pennsylvania prisons. The studies recommended that legal mail be opened and inspected, not read, outside the presence of the inmates in a secure setting by trained inspectors to...