Morgan v. Montanye

• Decision Date: 06 May 1975
• Docket Number: D,No. 614,614
• Citation: 516 F.2d 1367
• Parties: Zachary MORGAN, Appellant, v. Ernest MONTANYE, Warden of Attica State Prison, Correction Officer Steggs, etal., Appellees. ocket 74-2390.
• Court: U.S. Court of Appeals — Second Circuit

Page 1367

516 F.2d 1367

Zachary MORGAN, Appellant, v. Ernest MONTANYE, Warden of Attica State Prison, Correction

Officer Steggs, etal., Appellees.

No. 614, Docket 74-2390.

United States Court of Appeals,

Second Circuit.

Argued Jan. 23, 1975.

Decided May 6, 1975.

Gretchen White Oberman, New York City, for appellant.

Burton Herman, New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for appellees.

Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.

LUMBARD, Circuit Judge:

Zachary Morgan, an inmate at New York's Attica Correctional Facility, appeals from an order by Chief Judge Curtin of the Western District dismissing Morgan's pro se civil rights suit (42 U.S.C. § 1983) for injunctive relief and $15,000 damages arising out of allegedly unconstitutional interference by Attica officials with mail sent to Morgan by his attorney in connection with a pending state criminal appeal in the summer of 1973. We affirm.

This suit involved four items of correspondence which Morgan alleged were not handled in accordance with prison regulations governing receipt of mail from an attorney. Under New York prison regulations, "(t)he envelope and contents thereof of outgoing and incoming correspondence (except special correspondence) will be inspected to ascertain that there is nothing present therein which jeopardizes the safety and security of the facility." N. Y. Dep't of Correctional Services, Administrative Bull. No. 20, P 3 (as amended Dec. 14, 1972). ¹ Inspection of general correspondence is done in the Correspondence Department by prison officers. Different procedures apply, however, to an inmate's correspondence to and from attorneys and public officials. This "special correspondence" is treated as confidential material and is opened and inspected for contraband only in the prisoner's presence, so that the inmate can make sure that it is not read by prison officials. Morgan's complaint charged that prison officials violated the latter regulation and in doing so infringed his constitutional right to confidential and uncensored communications with his attorney.

The first incident of which Morgan complains occurred on July 14, 1973. Morgan alleged that he received a letter from his court-appointed attorney, Professor Frank S. Polestino of St. John's University School of Law in Jamaica, New York, and that this letter had been unlawfully opened and inspected out of his presence. Both the envelope and letter, which are part of the record on appeal, bear a stamp which prison officials put on general correspondence when they open and inspect it for contraband in the Correspondence Department. It should be noted, however, that the only indication on the envelope that it might have been from an attorney (and thus special correspondence) was a printed return address from St. John's Law School. Over that the name "F. S. Polestino" was handwritten. Morgan's address was also handwritten. Still, Morgan alleged that the officer in the Correspondence Department should have treated it as special correspondence, especially as the officer could have checked the department file and found that Polestino was listed as Morgan's attorney-of-record and had been on his correspondence list for a year.

Morgan further alleged that on July 23, 1973, a second envelope from Polestino was opened and inspected prior to its delivery to Morgan. This one was larger and contained the brief being prepared for Morgan's appeal. The address and return address were typed, and Attorney-at-Law was stamped on the front. Despite this clear indication that the mail was from an attorney, prison officials treated the package as general correspondence. Morgan claimed that when he received the package the last two pages of the appeal brief were missing.

Morgan complained to Correction Officer Harold Steggs that his legal mail was being treated as general correspondence and charged that someone had intentionally removed the two missing pages from the brief. Steggs, who worked in the Correspondence Department, sent Morgan the following response the next day:

Mr. Morgan: No one is abusing your right to legal mail, but it is difficult to assume that these Schools of Law are run by competent attorneys. Show me proof that this man was admitted to Law Bar Your legal to and from him will be treated as private legal mail. For your information contents of envelope was not censored. ²

Morgan claims that proof that Polestino was a member of the Bar was unnecessary, because Polestino was listed in the Correspondence Department file as his attorney-of-record. Nevertheless he supplied such proof, for which Steggs thanked him.

The complaint in this action was submitted to the court on August 3, 1973. On August 9, 1973, Morgan received a third letter from Polestino containing copies of the two missing pages from the brief and a note in which Polestino said that he was "disturbed to learn that a part of the brief (he) had sent to (Morgan) was missing." This letter was also allegedly opened and inspected prior to delivery to Morgan, and the envelope and note (which are part of the record on appeal) were stamped as general correspondence by prison officials. Like the July 14th envelope, this envelope bore no indication that it was from an attorney other than a printed law-school return address. Again Morgan's address was handwritten, as was Polestino's name.

Finally, on September 4, 1973, Morgan received another short note from Polestino in an envelope similar to those received on July 14th and August 9th. Again it was apparently opened and inspected out of Morgan's presence and stamped as general correspondence by prison officials.

Morgan's complaint was accompanied by an application to proceed in forma pauperis which the court granted on September 18, 1973, also ordering the defendants to show cause why Morgan should not be allowed to proceed further in forma pauperis. Defendants filed affidavits from Correction Officers Stephen Seely and Steggs, who responded to charges concerning the July 14th and 23d incidents the only two raised by Morgan by that time. Seely, who had been on duty July 14th, stated that he had no recollection of opening the letter in question. He noted that inmate's legal mail is handled in the regular course of business pursuant to Administrative Bulletin No. 20, and that when mail from attorneys arrives bearing no indication that it is from an attorney, it is opened in the Correspondence Department. Steggs stated that Morgan's legal mail was opened before Morgan on July 23, 1973. ³

In a four-page affidavit dated October 23, 1973, Morgan contested the affidavits of Steggs and Seely and stated that he had proof that his legal mail had been handled in violation of prison regulations over an extended period of time. On January 15, 1974, the court ordered him to submit such evidence. This he did on January 28th, along with a further affidavit. His evidence consisted not only of the envelopes from July 14th and July 23rd, but also the additional envelopes from August 9th and September 4th allegedly opened and inspected out of his presence. Polestino's letters from July 14th, August 9th, and September 4th were also included.

On June 3, 1974, Judge Curtin filed a brief opinion dismissing this action. He noted first that it was possible that prison officials had opened the envelopes inadvertently not realizing they were legal mail, but he found that whether or not respondents' conduct in opening the letters was inadvertent, it was constitutionally permissible under this circuit's en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). In Sostre, after holding that a prison warden had improperly refused to mail Sostre's complaint to a postal inspector and had improperly deleted material from a letter to Sostre's attorney as being irrelevant to Sostre's criminal appeal, this court stated:

We leave a more precise delineation of the boundaries of this protection (against censorship) for future cases. We need only add that when we say there may be cases which will present special circumstances that would justify deleting material from, withholding, or refusing to mail communications with courts, attorneys, and public officials, we necessarily rule that prison officials may open and read all outgoing and incoming correspondence to and from prisoners. Id. at 201 (latter emphasis added).

In considering Morgan's appeal, it should be noted that the dismissal below was based upon evidence set forth in affidavits submitted by Morgan, as well as exhibits attached thereto, and also on affidavits submitted by defendant prison officials. The decision is thus essentially a grant of summary judgment for defendants, with the issue on appeal being whether the complaint, affidavits and exhibits raise material issues of fact requiring a trial. See United States ex rel. Haymes v. Montanye, 505 F.2d 977, 979 (2d Cir. 1974). In determining whether Morgan's affidavits and exhibits support a cause of action, the court must be sensitive to the fact that Morgan was proceeding pro se below, ⁴ just as it would be were it considering a decision dismissing his pro se complaint prior to the submission of any evidence, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However the affidavits and exhibits, even liberally construed in Morgan's behalf, make it clear that Morgan's suit was properly dismissed.

Focusing first on Morgan's primary claim that prison officials unconstitutionally opened and inspected mail from his attorney out of his presence, we find that Morgan's complaint, affidavits, and exhibits allege only a single instance (the July 23d package) where legal mail, clearly marked as being from an attorney, ⁵ was opened out of his presence. From that...