Al-Amin v. Smith, No. 06-15248.

• Decision Date: 07 January 2008
• Docket Number: No. 06-15248.
• Parties: Jamil AL-AMIN, Plaintiff-Appellee, v. Warden Hugh SMITH, Admin. Asst. Sanche M. Martin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

511 F.3d 1317

Jamil AL-AMIN, Plaintiff-Appellee, v. Warden Hugh SMITH, Admin. Asst. Sanche M. Martin, Defendants-Appellants.

No. 06-15248.

United States Court of Appeals, Eleventh Circuit.

January 7, 2008.

Andrew M. Magruder, Sp. Asst. Atty. Gen., Augusta, GA, Devon Orland, Atlanta, GA, for Defendants-Appellants.

A. Stephens Clay, IV (Court-Appointed), Kilpatrick Stockton, LLP, Atlanta, GA, for Al-Amin.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT, HULL and WILSON, Circuit Judges.

HULL, Circuit Judge:

In this 42 U.S.C. § 1983 action, plaintiff-appellee, a state prisoner, alleges that defendants-appellants repeatedly opened his privileged attorney mail outside of his presence and thereby violated his constitutional rights to access to the courts and free speech. Defendants appeal the denial of their motion for summary judgment on qualified immunity grounds. After review and oral argument, we reverse the district court's qualified immunity ruling as to plaintiff's access-to-courts claim but affirm as to plaintiff's free speech claim.¹

I. BACKGROUND

From 2002 to 2007, plaintiff Jamil Al-Amin was a prisoner at Georgia State Prison ("GSP"), operated by Georgia's Department of Corrections ("DOC").² Defendants are Hugh Smith, GSP warden, and Sanche Martin, his assistant.

A. DOC's Mail Policy

The DOC policy known as "SOP IIB04-0001" provides certain mail privileges to inmates at Georgia prisons. Specifically, SOP IIB04-0001 provides that correspondence between inmates and their attorneys is "privileged mail." An inmate's attorney includes "any attorney with whom the inmate has had, or is attempting to establish, an attorney client relationship" and who is licensed to practice in state or federal courts. The policy provides for external inspection of privileged mail "by fluoroscope, metal detecting device, or manual inspection for the purpose of detecting contraband."³

Following an external inspection, "an appropriately designated staff member may open and inspect (but not read) all privileged mail in the presence of the inmate/probationer to whom it is addressed." Thus, under DOC's own policy, GSP may not read Al-Amin's attorney mail and may open it only in his presence.⁴

B. Mail from Al-Amin's Wife

In 2002, plaintiff's wife, Karima Al-Amin ("Karima") began sending legal correspondence marked "legal mail" to him. Karima is a licensed attorney practicing in Atlanta, Georgia.

From April 13, 1999 to August 1, 2004, defendant Martin oversaw the daily operations of the prison mailroom.⁵ Martin admits that, in April 2002, she accidentally opened a letter from Karima. As Martin resealed the letter, she saw that Karima was an attorney and that the letter came from Karima's law office. Martin informed Warden Smith that Al-Amin had received "mail of a personal nature" from his attorney-wife.

In May 2002, Warden Smith asked Al-Amin for a list of his attorneys of record. Smith asked for the list because Al-Amin had a number of attorneys and Smith did not want mailroom staff opening Al-Amin's legal mail outside Al-Amin's presence. Al-Amin gave Smith the names of five attorneys, but did not include Karima.⁶ Because Al-Amin did not identify Karima as one of his attorneys, Smith informed Martin and other mailroom staff that Karima's letters should be treated as regular mail. According to Smith and Martin, Al-Amin and Karima never informed them that Karima was representing Al-Amin.

C. August 2003 Grievance

In 2003, Officer James Jones, who brings legal mail to inmates, told Al-Amin that Martin was opening legal mail from Karima. Al-Amin then filed an August 2003 grievance alleging that Martin had "knowingly[,] ignoring and disregarding D.O.C. Policy, instructed that my Legal Mail is to be opened." Al-Amin's grievance listed his nine attorneys, including his wife. Al-Amin requested that his privileged mail be treated as such.

On September 19, 2003, Warden Smith denied the grievance, stating that "[n]o evidence was found to support the allegations you made against Ms. Martin. Mail is processed within established guidelines." On September 25, 2003, Al-Amin filed a grievance appeal, repeating his allegations and stating that "[m]y wife is one of my lawyers and should be shown the respect of any attorney."

On November 13, 2003, as part of the grievance investigation, Theresa Jarriel submitted a sworn statement based on a telephone interview with Martin. Martin told Jarriel that: (1) when Al-Amin came to GSP, he received legal mail in envelopes with preprinted business labels from his wife; (2) "a lot of the privileged mail had personal letters in it although some of the envelopes contained legal transcripts and such"; and (3) because Al-Amin was asked to list his attorneys and Karima was not included, Warden Smith instructed mailroom staff to open all mail received from Karima, whether privileged or not, before taking it over to Al-Amin's building.

On November 14, 2003, Warden Smith submitted a sworn statement that "Al-Amin's legal mail received from any attorney of record is opened in his presence as established in policy. Mail received from his wife who I am told is an attorney or legal representative has been opened outside of inmate Al-Amin's presence." On November 18, 2003, Smith sent a memorandum to the DOC's Assistant Regional Director and the lead investigator for Inmate Affairs and Appeals stating that mail arriving for Al-Amin would be processed as privileged mail as long as it met the criteria under the mail policy.

D. November 25, 2003 Grievance Response

On November 25, 2003, Raymond Head, manager of the Inmate Affairs Unit, issued a grievance response. According to Head's response, Al-Amin's allegation was "referred to the appropriate staff for appropriate action to ensure this does not occur again in the future." Warden Smith received Head's grievance response and instructed Martin to now treat all mail from Karima as legal, privileged mail and to open it in Al-Amin's presence. Martin in turn, instructed the mailroom staff to treat mail from Karima as legal mail.

In her affidavit, Martin states that after November 25, 2003, she treated all of Karima's mail as legal mail and she never opened any of it outside Al-Amin's presence.⁷ Martin avers that she never instructed or permitted any individuals to inspect Al-Amin's privileged mail.⁸ If any of Karima's mail was opened outside Al-Amin's presence after November 25, 2003, Martin states, "it was inadvertently done by the mail room sorter."

According to Warden Smith's affidavit, he was not aware that any of Karima's mail was treated as non-privileged after November 25, 2003. Had Smith known that mailroom employees were treating Karima's mail as non-privileged, he would have corrected the situation.

In contrast, Al-Amin testified that legal mail from Karima continued to be opened outside his presence even after Head's November 25, 2003 grievance response. Al-Amin points to thirteen envelopes (attached to his complaint) mailed between June 28, 2004 and February 8, 2005 as legal mail opened outside his presence.⁹ Further, in 2005, Karima questioned Warden Smith about the continual opening of Al-Amin's legal mail. Smith replied that the opened mail from Karima was mail from her home of a personal nature. Karima informed Smith that all communications had been duly marked as "legal mail" and that she had not sent any mail from her home.

E. Al-Amin's Complaint

On March 21, 2005, Al-Amin filed a § 1983 complaint against Warden Smith and Martin in their individual capacities.¹⁰ Attached to the complaint are photocopies of the thirteen envelopes between June 28, 2004 and February 8, 2005, which he alleges were improperly opened before reaching him.¹¹ The return address on each envelope is Karima's law office address and each is marked "legal mail." Four of the envelopes are also marked "attorney-client privilege." Al-Amin's lawsuit seeks damages for only these thirteen letters.¹²

However, as background, Al-Amin's complaint stresses that during 2003 defendants had previously opened and read his attorney mail and been told to stop. According to Al-Amin's complaint, during 2003, Martin knowingly violated the DOC policy by instructing mailroom staff to open and read his legal mail outside his presence and GSP staff continued to do so even after Head's November 25, 2003 directive to treat Al-Amin's legal mail as privileged.

Al-Amin's complaint further alleges that Martin's authorizing of GSP mailroom staff to continue to open and read all of Al-Amin's privileged mail from Karima violated not only the DOC mail policy but also his constitutional rights. As to Warden Smith, the complaint alleges that, after Al-Amin's grievance was sustained, Smith knowingly failed to take corrective actions to ensure that Al-Amin's legal mail was not opened and read outside Al-Amin's presence, thereby violating his constitutional rights.

Al-Amin requests: (1) a declaratory judgment that defendants violated his constitutional rights; (2) a permanent injunction ordering defendants to open his attorney mail only in his presence; (3) nominal and punitive damages; and (4) attorney's fees.¹³

F. Cross Motions for Summary Judgment

Defendants' motion for summary judgment argued that Al-Amin had shown no constitutional violation because Al-Amin: (1) did not list his wife on his attorney-of-record list and therefore his wife's mail was not privileged; and (2) did not articulate any actual injury caused by his alleged denial of court access. Defendants also argued that they were entitled to qualified immunity because they had no fair warning that their actions were unconstitutional.

In response, Al-Amin moved for summary judgment, arguing that: (1) defendants knew that Karima's letters were privileged attorney mail from the envelopes themselves, which bore her law firm address and were labeled "legal mail"; (2) the DOC mail policy...