Abbott v. Meese

• Decision Date: 28 July 1987
• Docket Number: No. 84-5718,84-5718
• Citation: 263 U.S.App.D.C. 186,824 F.2d 1166
• Parties: Jack ABBOTT, et al., Appellants, v. Edwin MEESE, III, Attorney General of the United States, et al. *
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1166

824 F.2d 1166

263 U.S.App.D.C. 186

Jack ABBOTT, et al., Appellants, v. Edwin MEESE, III, Attorney General of the United States, et al. ^*

No. 84-5718.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 23, 1986.

Decided July 28, 1987.

As Amended July 28, 1987.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 73-01047).

Steven Ney, with whom Edward I. Koren and Alvin J. Bronstein, Washington, D.C., were on brief, for appellants.

Richard A. Stanley, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief, for appellees.

Before EDWARDS and RUTH BADER GINSBURG, Circuit Judges, and FAIRCHILD, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit. ^**

Opinion for the Court filed by Senior Circuit Judge FAIRCHILD.

FAIRCHILD, Senior Circuit Judge.

This action involved, among other things, regulation of correspondence between inmates of different prisons, and rejection of publications directed to inmates. Named plaintiffs were prisoners and former prisoners suing on behalf of themselves and all other prisoners in federal institutions. On June 7, 1974, the district court ordered that the action be maintained as a class action, except for determining the question of damages, and that the class consist of all current and future prisoners. On September 1, 1978, on plaintiff's motion, the district judge ordered the addition, as plaintiffs, of the Prisoners' Union, Weekly Guardian Associates, and the Revolutionary Socialist League, publishers of publications which had been rejected at federal prisons.

On September 13, 1984, after trial, the district court filed a decision, and ordered defendants permanently enjoined from applying certain regulations, but granted judgment for defendants in all other respects. Plaintiffs and defendants appealed from the portions of the judgment adverse to them. Defendants' appeal, however, was later dismissed on their motion. Individual damage claims had been "severed" before trial. Assuming that the existence of unresolved damage claims deprives the judgment of finality, we have jurisdiction In arguing the appeal, plaintiffs have not challenged all the portions of the judgment adverse to them. The issues argued relate to a general prohibition, with certain exceptions, of inmate-to-inmate correspondence, and censorship of publications directed to inmates.

under 28 U.S.C. Sec. 1292(a)(1) since the order refused injunctions sought by plaintiffs.

I. PROHIBITION ON INMATE-TO-INMATE CORRESPONDENCE

The regulation relating to correspondence between inmates, 28 C.F.R. Sec. 540.17 (1986), reads as follows:

An inmate may be permitted to correspond with an inmate confined in any other penal or correctional institution, providing the other inmate is either a member of the immediate family, or is a party or a witness in a legal action in which both inmates are involved. The Warden may approve such correspondence in other exceptional circumstances, with particular regard to the security level of the institution, the nature of the relationship between the two inmates, and whether the inmate has other regular correspondence. The following additional limitations apply:

(a) Such correspondence at institutions of all security levels may always be inspected and read by staff at the sending and receiving institutions (it may not be sealed by the inmate);

(b) The Wardens of both institutions must approve of the correspondence.

Although the language is permissive in form, the record indicates that the regulation amounts to a prohibition except for correspondence between family members or those involved in a legal action.

The district court upheld the regulation, writing as follows:

The plaintiffs contend that the general ban on prisoner-to-prisoner correspondence destroys prisoner relationships, thus working a hardship on inmates and prohibiting a potentially rehabilitative activity. As on the publications issues, the plaintiffs point to state systems which have liberal policies but find no adverse results.

They argue that inmate "grapevines" are usually strong enough to relay information between prisons without the benefit of mail privileges, rendering the ban on written communication useless and therefore unduly restrictive.

The defendants respond that prisoner-to-prisoner mail could be used for communication between members of prison gangs: in particular it could be used to arrange assaults on inmates who are transferred under the Bureau's protective custody program. Testimony on the conduct of prison gangs indicated that this is not a remote possibility. There was evidence, too, that prisoners have succeeded in sending letters to one another in order to carry on drug transactions and formulate escape plans. The plaintiffs suggest that the risk of such problems could be handled by monitoring correspondence; but the defendants reply that they could not hope to monitor a sufficient number of letters, and in any event, prisoners could easily write in private jargon that prison authorities would not understand. Thus no less restrictive policy than a general ban on inter-inmate correspondence is in the interest of security. The court sustains this position. Again, as in the case of publications, the Bureau is not obliged to take risks other systems accept, nor is it required to forego controlling one means of communication where it cannot all means.

The Supreme Court recently upheld a very similar prohibition in Turner v. Safley, --- U.S. ----, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Turner clearly controls this point, with one possible exception.

The regulation considered in Turner permits correspondence "concerning legal matters," but the regulation before us is more restrictive, permitting an inmate to correspond with another inmate who "is a party or a witness in a legal action in which both inmates are involved."

Plaintiffs challenge the regulation on the ground that it prevents inmates from seeking In Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969), the Supreme Court held that "unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation ... barring inmates from furnishing such assistance to other prisoners." See Rudolph v. Locke, 594 F.2d 1076, 1078 (5th Cir.1979). Johnson was extended to assistance in civil rights actions in Wolff v. McDonnell, 418 U.S. 539, 577-80, 94 S.Ct. 2963, 2985-86, 41 L.Ed.2d 935 (1974). 430 U.S. at 828, 97 S.Ct. at 1498. As suggested by the Johnson language, there is no absolute right to the assistance of another inmate if a reasonable alternative is provided.

                and obtaining legal assistance from other inmates.  This argument rests upon the inmates' "constitutional right of access to the courts."   Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977)
                

It has been held that where an adequate method of access is provided, an inmate may not insist on the right to the assistance of a particular inmate. Gometz v. Henman, 807 F.2d 113, 116 (7th Cir.1986); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir.1981).

The Bureau has several regulations pertaining to "Inmate Legal Activities" 28 C.F.R. Sec. 543.10-.16. Defendants point out a provision requiring each Warden to establish an inmate law library and procedures for access to legal reference materials and to legal counsel, and for the preparation of legal documents. Section 543.15 governs legal aid programs which are funded or approved by the Bureau. Section 543.11(f) provides that unless the institution has an active, ongoing legal aid program, the Warden shall allow an inmate the assistance of another inmate during leisure time.

If, in fact, the Bureau failed to provide resources and assistance sufficient to fulfill an inmate's right to meaningful access to the courts without the assistance of inmates in other institutions by correspondence, an amendment to the prohibition of correspondence would be required. The record, however, does not establish the lack of a reasonable alternative.

II. REJECTION OF PUBLICATIONS

The Bureau of Prisons has issued regulations delegating to each warden authority to reject a publication to which an inmate has subscribed or which has been otherwise sent to him. Generally the warden may reject a publication only if it is determined "detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity." 28 C.F.R. Sec. 540.71(b) (1986). The regulation also sets forth a non-exhaustive list of criteria, and a publication which meets one of them "may" be rejected. Rejection by the warden is subject to appeal within the Bureau of Prisons. We set forth in an Appendix the governing regulations, 28 C.F.R. Sec. 540.70 and Sec. 540.71(b), (c), (d), and (e), as well as a portion of a Bureau Program Statement No. 5266.5 which contains updated additional instructions dealing with sexually explicit material.

Plaintiffs challenge on First Amendment grounds parts of Sec. 540.71(b) and the Program Statement facially and as applied. They seek a specific determination on 46 rejected publications. "[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974). The freedom of the inmates to receive publications and to read them is at stake. "It is now well established that the Constitution protects the right to receive information and ideas. 'This freedom [of speech and press] ... necessarily protects the right to receive....' " Stanley v. Georgia, 394 U.S. 557, 564...