Faulkner v. McLocklin, S88-588.

• Decision Date: 15 December 1989
• Docket Number: No. S88-588.,S88-588.
• Citation: 727 F. Supp. 486
• Parties: Gary L. FAULKNER, Plaintiff, v. Richard McLOCKLIN, Defendant.
• Court: U.S. District Court — Northern District of Indiana

727 F. Supp. 486

Gary L. FAULKNER, Plaintiff, v. Richard McLOCKLIN, Defendant.

No. S88-588.

United States District Court, N.D. Indiana, South Bend Division.

October 30, 1989.

As Amended December 15, 1989.

Earl I. Studtmann, Portage, Ind., for plaintiff.

F.E. Rakestraw, Rochester, Ind., for defendant.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause poses a difficult issue concerning a jail inmate's right to be present when his legal mail is opened to check for contraband. During plaintiff Gary L. Faulkner's nine months as a pretrial detainee in the county jail in Fulton County, Indiana in 1988, jail officials opened, outside his presence, certain letters addressed to him. He brings this suit pursuant to 42 U.S.C. § 1983, seeking an award of damages from Fulton County Sheriff Richard McLocklin. The court has jurisdiction over the claim pursuant to 28 U.S.C. § 1343. The case was tried to the court on October 26, 1989, without intervention of a jury. This memorandum is intended to satisfy the court's obligations under Rule 52(a), Fed.R.Civ.P.

Mr. Faulkner was arrested in Fulton County on March 27, 1988, and charged with attempted burglary and with being an habitual offender. He resided in the county jail until December 15, 1988. He elected to represent himself in his criminal case, and in the course of doing so became an avid letter writer. Jail records indicate that he sent 485 pieces of mail during his stay, and received 237 pieces of mail. Forty to fifty pieces of the incoming mail might have been considered "legal mail" under one definition or another. Mr. Faulkner testified that jail officials opened all of his mail before delivering it to him. He contends that this deprived him of his right to have legal mail opened in his presence.

The court did not find Mr. Faulkner to be a credible witness. To say that he exaggerated on several points charitably understates the situation.¹ Accordingly, the court attributes no weight to Mr. Faulkner's testimony to the extent it was contradicted by other testimony or evidence. His testimony that all forty to fifty pieces of "legal mail" were opened outside his presence was contradicted, and the court rejects Mr. Faulkner's testimony on that point.

Mr. Faulkner presented twelve pieces of what claims to have been legal mail that was opened outside his presence. He maintains that the remaining pieces of legal mail were removed from his cell during a two or three day period in which he was relocated to another county jail. The court finds that testimony incredible. First, Jail Commander Robert Bryant, whom the court found to be a credible witness, testified that Mr. Faulkner took boxes of correspondence with him when he left the county jail in December. Second, and more importantly, the dates of the cell search and the letters in question belie Mr. Faulkner's testimony. Jail officials received information that Mr. Faulkner had a homemade knife and was planning an escape during a weekend in May. They placed him in another county jail and searched his cell. The search disclosed what appeared to be a homemade knife. Mr. Faulkner claims jail officials took letters that were received in envelopes introduced into evidence as Plaintiff's Exhibits 4 and 5, which bear postmarks of June 10, 1988 and August 31, 1988. Both envelopes post-date the search; their contents could not have been seized in May. The court does not find that jail officials took Mr. Faulkner's correspondence.

Mr. Faulkner testified that the twelve letters introduced into evidence all were opened outside his presence. Again, that testimony was rebutted. Officer Bryant testified that he slits open incoming inmate mail across the top of the envelope with a pocket knife or letter opener. Nine of these twelve exhibits were opened along one side or another of the envelope, in most instances leaving jagged tears. Particularly in light of Mr. Faulkner's lack of credibility, the court credits Officer Bryant's testimony that he opened only three of the letters before delivering them to Mr. Faulkner.

Resolution of the credibility issues does not, however, resolve the case. Officer Bryant conceded that he opened three of the letters outside Mr. Faulkner's presence. The court must determine whether those letters were "legal mail" and, if so, whether Sheriff McLocklin is liable to Mr. Faulkner as a result of the letters having been opened outside Mr. Faulkner's presence.²

The first of the three letters in question arrived in a hand-addressed envelope post-marked May 13, 1988. The return address had been placed by a rubber stamp, and read:

CALUMET CHAPTER

INDIANA CIVIL LIBERTIES UNION

P.O. Box 2846

Gary, Indiana 46403

Officer Bryant opened that letter to check for contraband, but did not read the letter, before delivering it to Mr. Faulkner. Mr. Faulkner objected to that letter having been opened, and explained that the Indiana Civil Liberties Union ("I.C.L.U.") was his legal counsel. Accordingly, Mr. Bryant did not open Plaintiff's Exhibits 4 and 5, which bore typed addresses and printed return addresses bearing the logo of the American Civil Liberties Union ("A.C.L.U."), Calumet Chapter, I.C.L.U. Officer Bryant also did not open Plaintiff's Exhibit 6 (post-marked September 26, 1988), which was hand-addressed to Mr. Faulkner, but bore the printed return address of the A.C.L.U. in Indianapolis and was stamped "LEGAL MAIL". Officer Bryant did not open Plaintiff's Exhibit 7 (post-marked November 8, 1988), which bore a typed address to Mr. Faulkner, a notation of "LEGAL MAIL" and the printed return address of the Notre Dame Law School, above which was typed, "LEGAL AID: Sharon Gould". Each of those envelopes was presented unopened to Mr. Faulkner; they were not opened even in Mr. Faulkner's presence.

Officer Bryant did, however, open Plaintiff's Exhibit 8, which was post-marked November 15, 1988. That envelope bore a hand-written address to Mr. Faulkner, and a handwritten notation, "LEGAL MATERIALS". The envelope bore the printed return address of the Legal Services Program of Northern Indiana, Inc., of Lafayette, Indiana, above which the name "John Willis" was typed. Officer Bryant testified that he opened the letter because of the handwriting on the envelope and because Mr. Faulkner had placed several telephone calls to Mr. Willis at an "800" number without identifying Mr. Willis as an attorney.

The other envelope Officer Bryant opened was Plaintiff's Exhibit 3, a franked letter (bearing no postmark) from the United States Senate Committee on Agriculture, Nutrition, and Forestry in Washington, D.C. The return address bore the notation, "OFFICIAL BUSINESS". The envelope was franked under the signature of Senator Richard Lugar.

The United States Supreme Court has never specifically held that an inmate has a constitutional right to attend the opening of his legal mail. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), is frequently cited in support of the existence of such a right, see, e.g., Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981), but it does not so hold. In Wolff, the inmate contended that to allow prison authorities to open his mail in his presence violated several of his constitutional rights, and the Court disagreed. The Court stated that "the petitioners, by acceding to a rule whereby the inmate is present when mail from attorneys is inspected, have done all, and perhaps even more, than the Constitution requires." 418 U.S. at 539, 94 S.Ct. at 2963. The suggestion that allowing the inmate's presence may provide greater protection than that required by the constitution falls well short of holding that the inmate has a right to be present.

Four months before Wolff, however, the Seventh Circuit squarely held that inmates have a right to be present when mail from attorneys is opened for inspection. In Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir.), cert. denied 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156 (1974), the court wrote,

An inmate's need for confidentiality in his communications with attorneys through whom he is attempting to redress his grievances is particularly important. We think that contact with an attorney and the opportunity to communicate privately is a vital ingredient to the effective assistance of counsel and access to the courts. Adams v. Carlson, 488 F.2d 619 (7th Cir.1973). The potential for diluting privacy in communication between attorney and client is particulary acute in the facts before us. The prison officials in inspecting incoming mail outside the presence of an inmate are provided with an opportunity to obtain advanced warning of potential litigation which might involve the prison and more significantly could become privy to stratagems being formulated between attorney and client with regard to pending litigation. Therefore, we hold that plaintiff is entitled to be present during the opening of legal mail addressed to him in prison. Smith v. Robbins, 454 F.2d 696 (1st Cir.1972).

A pretrial detainee has no lesser rights in this regard than do inmates who have been convicted. Martin v. Tyson, 845 F.2d 1451, 1456-1457 (7th Cir.), cert. denied ___ U.S. ___, 109 S.Ct. 162, 102 L.Ed.2d 133 (1988).

Sheriff McLocklin argues that letters from a Legal Services Program or a chapter of the A.C.L.U. cannot be considered "legal mail", because they are not from attorneys. The court cannot agree that "legal mail" is subject to so stingy a definition.³ Such organizations exist to provide legal services to (at least some of) those who request legal services, and employ attorneys for that purpose. That the organizations themselves are not licensed to practice law and employ persons who are not licensed to practice law does not set them apart from law firms. An inmate who writes the A.C.L.U. or one of its chapters generally does so in the hope of receiving legal representation or advice, and is likely to describe his legal problem in the...