Bonner v. Outlaw, 07-3676.

Citation552 F.3d 673
Decision Date09 January 2009
Docket NumberNo. 07-3676.,07-3676.
PartiesVernon BONNER, Plaintiff-Appellee, v. T.C. OUTLAW, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Lonnie Frank Bryan, AUSA, argued, Minneapolis, MN, for appellant.

Thomas Henry Boyd, argued, Minneapolis, MN, for appellee.

Before BYE, JOHN R. GIBSON and SMITH, Circuit Judges.

BYE, Circuit Judge.

T.C. Outlaw filed an interlocutory appeal from the district court's1 denial of his motion to dismiss, or for summary judgment, on the basis of qualified immunity. We affirm.

I

Vernon Bonner was an inmate at the Federal Correctional Institution ("FCI") in Waseca, Minnesota. T.C. Outlaw was the warden at FCI. While Bonner was incarcerated at FCI, his attorney, Thomas J. Organ, twice sent him correspondence, which included trial transcripts Bonner allegedly needed to pursue other litigation. The correspondence was rejected by prison officials because they were not in compliance with prison regulations pertaining to the receipt of "packages." Bonner was not notified his mail was rejected either time. Bonner eventually learned of the rejections from his attorney, and he completed the grievance process with respect to the rejection of the packages and the lack of notice that those packages were rejected.

Bonner filed a Bivens2 action against Outlaw, the Federal Bureau of Prisons, and Sue McIntosh, a Bureau of Prisons employee who was assigned to the mail room. Bonner alleged violations of the First, Fifth, and Sixth Amendments to the U.S. Constitution. Bonner claimed the rejection of the packages violated his constitutional rights, as did Outlaw's failure to notify him of the rejections. The defendants filed a motion to dismiss, which the district court granted. On appeal, this Court affirmed the dismissal of all claims based on the actual rejections of the packages. Bonner v. Fed. Bur. of Prisons, 196 Fed.Appx. 447, 448 (8th Cir.2006) (per curiam). We concluded the rejection of the packages did not violate Bonner's constitutional rights because they did not comply with valid prison regulations. Id. We noted, however, "[i]nmates do have a right to procedural due process ... when their mail is rejected." Id. Thus, we remanded Bonner's procedural due process claim against Outlaw because the "district court did not address Bonner's allegation that defendant T.C. Outlaw failed to notify him that his incoming mail had been returned." Id.

On remand, Outlaw filed a motion to dismiss for failure to state a claim or for summary judgment. Among other grounds for relief, Outlaw asserted the defense of qualified immunity. The district court denied Outlaw qualified immunity, concluding Bonner alleged the violation of a clearly established constitutional right. Outlaw filed the instant interlocutory appeal challenging the district court's denial of qualified immunity.

II

Outlaw can appeal the district court's denial of qualified immunity pursuant to the collateral order doctrine. Lindsey v. City of Orrick, 491 F.3d 892, 897 (8th Cir.2007). This court reviews de novo the district court's denial of qualified immunity. Brown v. Fortner, 518 F.3d 552, 558 (8th Cir.2008). To determine whether Outlaw is entitled to qualified immunity, we engage in a two-step analysis. First, we ask "whether, taking the facts in the light most favorable to the injured party, the alleged facts demonstrate that [Outlaw] violated a constitutional right." Lindsey, 491 F.3d at 897 (alteration added) (quoting Clemmons v. Armontrout, 477 F.3d 962, 965 (8th Cir.2007)). If so, "we next ask whether the right is clearly established or, to put it another way, `whether it would be clear to [Outlaw] that [his] conduct was unlawful in the situation [he] confronted.'" Id. (alterations added) (quoting Clemmons, 477 F.3d at 965).

A

Taking the facts in the light most favorable to Bonner, they demonstrate Outlaw violated Bonner's constitutional right to procedural due process by failing to notify him that his incoming mail had been returned. To state a procedural due process violation, Bonner must first demonstrate the deprivation of a protected liberty or property interest. Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). If he does so, the amount of process due Bonner is determined by balancing the specific interest affected, the likelihood the challenged action would result in an erroneous deprivation of that right, and the burden of providing additional procedures, including administrative costs and burdens. Id.; see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

In Procunier v. Martinez, the Supreme Court held "[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a `liberty' interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment." 416 U.S. 396, 417, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), overruled on other grounds by, Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As such, "the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards." Id. The Court approved a requirement that an inmate be notified of the rejection and have a reasonable opportunity to protest the decision, concluding such requirements "do not appear to be unduly burdensome." Id.

Outlaw argues Procunier is inapplicable because its holding applies to "letters," not to the "packages" rejected in this case. Outlaw's argument fails, however because the reasoning of Procunier applies to all forms of correspondence addressed to an inmate. It is the inmate's interest in "uncensored communication" that is the liberty interest protected by the due process clause, regardless of whether that communication occurs in the form of a letter, package, newspaper, magazine, etc. Thus, whenever prison officials restrict that right by rejecting the communication, they must provide minimum procedural safeguards, which include notice to an inmate that the correspondence was rejected. See id. Although Procunier discusses letters, that is because letters were simply the form of correspondence at issue in that specific case. Nothing about the reasoning of Procunier justifies treating packages differently than letters for purposes of the notice that should be given an inmate when correspondence addressed to that inmate is rejected. Courts, including this one, have routinely rejected the distinction Outlaw advances here and have applied Procunier to numerous forms of correspondence other than letters. See Ping v. Raleigh, No. 98-2739, 2000 WL 59539, at * 1 (8th Cir. Jan.24, 2000) (holding due process rights apply to rejection of "play-by-mail games"); Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir.2002) (holding due process rights apply to rejection of Georgetown Law Journal); Krug v. Lutz, 329 F.3d 692, 697 (9th Cir.2003) (holding due process rights apply to rejection of subscription magazines); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (holding due process rights apply to rejection of newspapers); Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 109 (4th Cir.1996) (holding due process rights apply to rejection of subscription magazines); Hopkins v. Collins, 548 F.2d 503, 504 (4th Cir.1977) (holding due process rights apply to rejection of newspapers).

Outlaw, citing several cases, argues packages have unique characteristics and pose greater security concerns than other types of correspondence, thus justifying different treatment. See Bell v. Wolfish, 441 U.S. 520, 555, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (reversing court of appeals decision striking down prison policies governing the amount of packages an inmate could receive, noting "such packages are handy devices for the smuggling of contraband."); Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir.1998) (upholding prison regulation limiting receipt of packages). These cases, however, concern an inmate's First Amendment rights with respect to receiving packages, not an inmate's due process rights to notice when those package are rejected. While there may be valid reasons for treating packages differently than letters in terms of an inmate's right to receive the correspondence, we see no justification for treating packages differently than letters with respect to the notice that should be provided to an inmate once a package is rejected.3

To support his interpretation of Procunier, Outlaw relies on a Bureau of Prisons regulation governing an inmate's notification of rejected correspondence, which provides:

When correspondence is rejected, the Warden shall notify the sender in writing of the rejection and the reasons for the rejection. The Warden shall also give notice that the sender may appeal the rejection. The Warden shall also notify an inmate of the rejection of any letter addressed to that inmate, along with the reasons for the rejection and shall notify the inmate of the right to appeal the rejection.

28 C.F.R. § 540.13. Outlaw argues this regulation distinguishes between letters and other correspondence, requiring an inmate be notified for rejections of the former but not the latter. He contends the regulation requires notice to a sender when all correspondence is rejected, but notice to an inmate only when "a letter addressed to that inmate" is rejected. In contrast, Bonner claims the regulation does not support Outlaw's interpretation, arguing the regulation is, at best, silent about whether an inmate should receive notice when something other than a letter is rejected.

We need not decide whether 28 C.F.R. § 540.13 authorized Outlaw's decision not to give Bonner notice his packages were rejected. Even if the regulation does make the distinction Outlaw argues here, the constitutionality of his conduct is governed by case law, not regulations. For the reasons...

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