59 F.3d 1445 (3rd Cir. 1995), 94-5719, Bieregu v. Reno

Docket Nº:94-5719.
Citation:59 F.3d 1445
Party Name:Polyns BIEREGU, Appellant, v. Janet RENO; L. Yearby; G. Berman, All Employees of Mail Room Staffs.
Case Date:July 11, 1995
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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59 F.3d 1445 (3rd Cir. 1995)

Polyns BIEREGU, Appellant,


Janet RENO; L. Yearby; G. Berman, All Employees of Mail Room Staffs.

No. 94-5719.

United States Court of Appeals, Third Circuit

July 11, 1995

Submitted Under Third Circuit LAR 34.1(a) May 2, 1995.

Sur Petition for Rehearing Sept. 11, 1995.

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Polyns Bieregu, Fairton, NJ, appellant pro se.

Faith S. Hochberg, U.S. Atty., Paul A. Blaine, Asst. U.S. Atty., Camden, NJ, for appellees.



SAROKIN, Circuit Judge:

A prisoner brought this action pro se against prison officials, alleging that by repeatedly opening properly marked incoming legal mail outside of his presence, those officials had violated his constitutional rights. 1 Holding that defendants enjoyed qualified immunity because the law in this area was unsettled in our circuit, the district court granted summary judgment in favor of the officials. Plaintiff appeals.


The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331. Plaintiff filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

Plaintiff Polyns Bieregu is incarcerated at the federal prison in Fairton, New Jersey. He alleges that on numerous occasions and outside his presence, prison mailroom employees opened and read mail addressed to him from federal judges, in violation of the Constitution, federal regulations, and internal Bureau of Prisons ("BOP") guidelines.

The federal regulatory framework for handling prisoner mail is straightforward. The regulations distinguish between incoming "general mail," which the Warden must open and inspect and may read, and incoming "special mail," which the Warden may open "only in the presence of the inmate for inspection for physical contraband and the qualification of any enclosures as special mail." 28 C.F.R. Secs. 540.14(a), 540.18(a). 2 Special mail includes incoming mail from federal and state courts. Sec. 540.2(c). In order to receive the special handling, incoming special mail must be marked "Special Mail--Open only in the presence of the inmate" and

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have a clearly identified sender. Secs. 540.2(c), 540.18(a). According to a BOP Policy Statement, however, mail "from the chambers of a federal judge ... should be given special handling," even when it lacks the precise marking. Federal Bureau of Prisons, Program Statement No. 5265.08 (October 1, 1985), Sec. 13(a). For convenience, we will refer to correspondence between an inmate and attorney as "attorney mail" and to correspondence between an inmate and a state or federal judge, clerk's office, or other courthouse address as "court mail." We use the phrase "legal mail" as a general term including both attorney and court mail.

Plaintiff does not attack the general BOP scheme for handling mail, nor the specific authority of BOP employees to open incoming legal mail in his presence. Rather, plaintiff contends that in repeatedly opening court mail outside his presence, the mailroom employees violated his rights to "confidential and uncensored commications" [sic] and to "access to the court" under the First, Fourth, Sixth, and Fourteenth Amendments. As approved in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff sues directly under the Constitution.

In response to defendants' motion for summary judgment, plaintiff supplied evidence that five pieces of mail from federal judges were opened outside his presence within a three month period. The mail concerned civil proceedings to which plaintiff was a party. Plaintiff alleges further that on another occasion, the mailroom employees opened and damaged a scheduling order in a civil forfeiture proceeding. Bieregu claims that because the order was damaged, he failed to file a timely brief and his appeal was dismissed.

An internal review by the prison determined that on at least three of the five alleged occasions, mailroom employees did open plaintiff's properly marked legal mail outside his presence. The employees claim they did not read the mail and submitted affidavits denying they had opened it intentionally.

The district court concluded "we cannot say that a reasonable trier of fact would be compelled to find that defendants' actions were the result of mere negligence." Bieregu v. Reno, No. 94-2775, slip op. (D.N.J. Nov. 4, 1994), at 5. It went on to conclude that "a policy or practice of opening properly identified legal mail outside the presence of the inmate" is a constitutional violation. Id. at 9. Nevertheless, the court determined that because the law in this circuit is not clearly established as to whether such conduct rises to the level of a constitutional violation, the officials were entitled to qualified immunity.

Our review of a district court's grant of summary judgment is plenary. In re City of Philadelphia Litigation, 49 F.3d 945, 960-61 (3d Cir.1995). We consider whether there are genuine issues as to material facts and whether defendants are entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir.1987). In so determining, we will resolve all reasonable doubts and draw all reasonable inferences in favor of the nonmoving party. Meyer v. Riegel Products Corp., 720 F.2d 303, 307, n. 2 (3d Cir.1983), cert. dismissed, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984).


By definition a sentence of imprisonment involves a loss of one's liberty, and by necessity a substantial loss of one's privacy. Yet confinement does not result in the forfeiture of all constitutional rights. Indeed, the closing of the prison gates upon an inmate is punishment enough in most instances, and any attempt to isolate inmates completely from the outside world might not only violate their constitutional rights, but would disserve the interests of a society hoping to release prisoners to become law-abiding citizens. Thus the Supreme Court has reminded us that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). See also Wolff v.

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McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974) ("There is no iron curtain drawn between the Constitution and the prisons of this country"). Nor do those walls "bar free citizens from exercising their own constitutional rights by reaching out to those on the 'inside.' " Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989).

Accordingly, the Supreme Court has recognized that persons convicted of serious crimes and confined to penal institutions retain the right to petition the government for the redress of grievances, Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); the right to be free from racial segregation, Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968); the right to due process, Wolff, supra; the right of free speech, Abbott, 490 U.S. at 410, n. 9, 109 S.Ct. at 1880 n. 9; the right of meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977); and the right to exercise substantial religious freedom, Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987).

The Court has also recognized, however, that the rights of prisoners "must be exercised with due regard for the 'inordinately difficult undertaking' that is modern prison administration." Abbott, 490 U.S. at 407, 109 S.Ct. at 1878 (quoting Turner, 482 U.S. at 85, 107 S.Ct. at 2259). Prison officials must weigh the need for internal order and security against the rights of prisoners, as well as the constitutional rights afforded "those on the 'outside' who seek to enter that environment, in person or through the written word." Abbott, 490 U.S. at 407, 109 S.Ct. at 1878.

Courts have been called upon to review the balance struck by prison officials between the penal institution's need to maintain security within its walls and the rights of prisoners and non-prisoners. As former Chief Judge Higginbotham has written for our court, " 'courts have learned from repeated investigation and bitter experience that judicial intervention is indispensable if constitutional dictates--not to mention considerations of basic humanity--are to be observed in the prisons.' " Peterkin v. Jeffes, 855 F.2d 1021, 1033 (3d Cir.1988) (quoting Rhodes v. Chapman, 452 U.S. 337, 354, 101 S.Ct. 2392, 2403, 69 L.Ed.2d 59 (1981) (Brennan, J. concurring)).

Against this background we turn to the conduct of defendants regarding plaintiff's incoming court mail.


The district court granted summary judgment on the grounds that defendants enjoyed qualified immunity, but before reaching this issue we must first determine whether plaintiff has alleged a constitutional violation. In re City of Philadelphia, 49 F.3d at 960-61; Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991). This analysis involves two steps: determining (1) whether any of plaintiff's constitutional rights are infringed by the conduct alleged herein; and if so, (2) whether that infringement rises to the level of a constitutional violation, given the specialized standard of review applied to prison regulations and practices.

A number of courts of appeals have determined that opening properly...

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