Royse v. Superior Court of State of Wash., In and For Walla Walla County, 85-3708

• Decision Date: 08 November 1985
• Docket Number: No. 85-3708,85-3708
• Citation: 779 F.2d 573
• Parties: Merle L. ROYSE, Plaintiff-Appellant, v. The SUPERIOR COURT OF the STATE OF WASHINGTON, In and For WALLA WALLA COUNTY; Pamela Ray, Individually and in her official capacity as Clerk of the Superior Court, et ux., and her sureties of bond, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 573

779 F.2d 573

Merle L. ROYSE, Plaintiff-Appellant, v. The SUPERIOR COURT OF the STATE OF WASHINGTON, In and For

WALLA WALLA COUNTY; Pamela Ray, Individually and in her

official capacity as Clerk of the Superior Court, et ux.,

and her sureties of bond, Defendants-Appellees.

No. 85-3708.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 8, 1985. ^*

Decided Jan. 3, 1986.

As Amended on Denial of Rehearing and Rehearing En Banc Feb. 21, 1986.

Meryle Royse, Walla Walla, Wash., for plaintiff-appellant.

Donald W. Schacht, Walla Walla, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT and REINHARDT, Circuit Judges, and TAYLOR, ^** Senior District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Appellant Royse, an inmate at the Washington State Penitentiary at Walla Walla, challenges an order of the superior court for that County requiring a contraband inspection of all mail from inmates to that court. Because we find that the order does not violate the inmates' right of access to the courts, we affirm the district court's summary judgment dismissal.

FACTS AND PROCEEDINGS BELOW

In April 1977, the Superior Court for Walla Walla County, issued a prison mail security order requiring the inspection of all mail sent by inmates of the penitentiary (WSP) to judges or officials of that court. ¹

It is undisputed that the reason for the mail inspection is to protect the security of superior court judges and other court personnel. Prior to issuance of the challenged order, a superior court judge in an adjoining county died from the explosion of a bomb mailed to his office.

Royse, an inmate of the WSP, filed an action in federal district court claiming that the order and inspection procedure violated his right of access to the courts. The court granted defendants' motion for summary judgment. Royse timely appealed.

STANDARD OF REVIEW

This court reviews de novo a grant of summary judgment. Lojeck v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).

DISCUSSION

Federal courts traditionally have adopted a "broad hands-off attitude" toward problems of prison administration. Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). This policy of judicial restraint is even stronger where state penal institutions are involved. Id. at 405, 94 S.Ct. at 1807. But where a prison regulation or practice offends a fundamental constitutional guarantee, federal courts "will discharge their duty to protect constitutional rights." Id. at 405-06, 94 S.Ct. at 1807-08.

Royse contends that the inspection process results in the "censorship" of "legal mail," including mail to attorneys. The scope of the inspection, however, is limited to mail from inmates to the state court. Royse fails to provide any evidence that any mail to an attorney has been affected by the contraband inspection or that any inspected mail has been censored or returned to an inmate.

The sole issue we need decide is whether Royse's challenge of the inspection procedure constitutes a valid fourteenth amendment due process claim based on access to the courts. See Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941).

The Supreme Court has established a two-part test to review censorship of prison mail. Procunier, 416 U.S. at 413, 94 S.Ct. at 1811. First, the regulation "must further an important or substantial governmental interest unrelated to the suppression of expression." Id. Second, the restriction of first amendment rights "must be no greater than is necessary or essential to the protection of the particular governmental interest." Id.

The district court applied the Procunier test to the inspection procedure challenged here, finding that "access to the courts is no more a fundamental right than are first amendment association and speech interests." ² Although this court has applied There is no question that the challenged inspection procedure serves an important governmental interest in protecting inmates, prison staff, and court personnel from injury or death due to mail bombs. As to the second prong of the Procunier test, we agree with the district court's finding that the inspection procedure is "minimally intrusive." Royse has failed to demonstrate that his access to the courts has been impaired by the inspection procedure.

                the Procunier test to censorship of incoming prisoner mail, Pepperling v. Crist, 678 F.2d 787 (9th Cir.1982), we have not considered the application of this test to cases involving the mere inspection of an inmate's "legal mail" for contraband.   Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir.1981)
                

While the inspection procedure here does not fail the Procunier test required for censorship of inmate mail, we decline to require the application of this test to the contraband inspection challenged here as a violation of inmates' right of access to the courts. As the Supreme Court has observed, "freedom from censorship is not equivalent to freedom from inspection or perusal." Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974). We find that the inspection of inmate mail for contraband does not constitute mail "censorship" governed by the Procunier test.

As to Royse's due process claim based on access to the courts, we note that this right "has not been extended by [the Supreme Court] to apply further than protecting the ability of an inmate to prepare a petition or complaint." Id. Because the inspection procedure here does not delay...