Henry v. Perrin, 78-1528

• Citation: 609 F.2d 1010
• Decision Date: 21 November 1979
• Docket Number: No. 78-1528,78-1528
• Parties: Richard HENRY et al., Plaintiffs, Appellants, v. Everett I. PERRIN, etc., et al., Defendants, Appellees. First Circuit
• Court: U.S. Court of Appeals — First Circuit

Page 1010

609 F.2d 1010

Richard HENRY et al., Plaintiffs, Appellants, v. Everett I. PERRIN, etc., et al., Defendants, Appellees.

No. 78-1528.

United States Court of Appeals,First Circuit.

Argued Sept. 5, 1979.

Decided Nov. 21, 1979.

Arpiar G. Saunders, Jr., Concord, N. H., with whom Robert A. Stein and Stein & Viles, Concord, N. H., were on brief, for plaintiffs, appellants.

Steven J. McAuliffe, Asst. Atty. Gen., Concord, N. H., with whom Thomas D. Rath, Atty. Gen., Concord, N. H., was on brief, for defendants, appellees.

John Meyer, Dennis Pizzimenti, Concord, N. H., and Bruce Kenna, Manchester, N. H., on brief, for the New Hampshire Civil Liberties Union, Merrimack County Public Defender's Office, Hillsborough County Public Defender's Office, and Merrimack County Bar Ass'n, amici curiae.

Before COFFIN, Chief Judge, KUNZIG, Judge, U. S. Court of Claims, ^* CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

This appeal presents a novel question arising from a challenge to a prison's inspection policy which extends, at both entry and exit, to documents in attorney's file. Appellants are a New Hampshire prisoner, Henry, who has been charged with attempted escape and possession of implements of escape, and his court appointed attorney, Stein. Appellees are the warden and other prison officials and employees.

In March of 1978 appellee warden promulgated an inspection policy to "reduce the ability to introduce or remove unauthorized items into or from the . . . Prison." It provided that "All containers, bags, boxes, lunch pails, briefcases, and purses entering or leaving the institution will be presented to the guard at the front door . . . by the transporter for examination." The articulated rationale accompanying the policy statement was that recent evidence had indicated that "staff members and visitors have unwittingly introduced into or removed unauthorized items from the institution." The prison's Manual for the Guidance of Inmates defined as contraband "(a)nything that has not been specifically permitted by proper authority" and that was not listed as items permitted in an inmate's living area. Testimony revealed that contraband included escape plans, pornographic literature, money, and unauthorized letters from or to other prison inmates.

Appellant Stein, appointed to represent Henry in April, 1978, had gone to the prison on two occasions and submitted to a search of his briefcase, since nothing relevant to any client problem was contained therein and he urgently wished to see his client. On at least one other occasion there was no search conducted. On September 6, 1978, however, Stein was carrying only a manila file folder containing the results of his work to date in connection with the charges against Henry witness reports, policy reports, Henry's criminal record, a written statement of Henry's version of the facts, Henry's suggestions as to trial strategy and tactics, memoranda of discussions of tactics, motions, pleadings, legal research papers, and notes of ideas which had occurred to attorney Stein.

Stein uneventfully passed through a metal detector of the type used in airports. The guard on duty then asked him to turn over the file. After he refused, various negotiations with prison authorities led to a voluntary submission of the file to a state Supreme Court Justice, who made a page by page inspection, sealed the file, and noted that there was no contraband in it. Despite this effort, any chance of peaceful settlement dissolved when attorney Stein was notified that even though he would be permitted entrance, in company with the state's attorney who would certify to the Justice's inspection, the file would still be subject to search on Stein's leaving the prison to see if Henry had given Stein any contraband to take out.

Whereupon this suit was brought under 42 U.S.C. § 1983 seeking an injunction against searching Stein's "court files" on his entering prison, compensatory and punitive damages, and attorney's fees. The district court, after hearing, held that

"(A)ny claim to the effect that the guards at (the prison) would necessarily read and report to prosecutors any privileged information in attorney's files is De minimis in nature in view of the cursory type of examination outlined by the testimony of Warden Perrin. Certainly, if such actions occurred, discipline would be swift and sure, and any harm sustained to the client would be promptly remedied."

This case has proven obdurate to the parties, the position of appellants being utterly incomprehensible to appellees. To appellants' principal claim that their Sixth Amendment right to counsel is infringed by a policy which allows a prison guard to conduct a thorough visual inspection of the files a lawyer brings to prison, appellees have thought it a sufficient response that guards understood they were not to read privileged materials. Inspection, they contend, is not reading; and prison authorities have the right to inspect all visitors for possession of contraband. While appellees would have us conclude that this proposition disposes of this appeal, we view the novelty of the facts as requiring closer analysis.

The novel problem presented by this appeal arises from three factual configurations: the nature of the legal business occasioning the lawyer's visit; the nature of "contraband" under this prison's policy; and the nature of the inspection allowed.

First, as to the nature of the legal problem faced by lawyer and client, we deal with a complaint charging appellant Henry with attempted escape and possession of escape implements. This matter was therefore one in which prison authorities were not disinterested third parties but one in which they were deeply involved. Moreover, the locus of any activities relating to the crime and evidence thereof, real, documentary or testimonial, being likely to be within the prison, it is equally probable that the file of a lawyer investigating the charges and developing any defenses would contain as was pretty much the case here names of inmates or prison personnel as putative witnesses, their statements or summaries of what they might say, names and addresses of persons outside the prison, correspondence between client and lawyer, the lawyer's notes of conversations with his client, lists of things to investigate of both a factual and legal nature (such as a defense of alibi), photographs, and sketches. To the extent that a file reflected orderly, professional preparation it might well also be revealing in its size, captions, and index to prison guards familiar with the incident, locale, and cast of characters. In short, trial preparation materials in a case involving escape from prison must almost inevitably contain references uniquely within the knowledge and understanding of prison officials.

Second, as to the nature of "contraband", we face an expansive policy, including within its definition not only weapons, explosives, and drugs but, as the district court noted, "money, unauthorized letters . . . escape plans, pornographic literature, and other items." The warden testified that inmate correspondence with other institutions required his approval. Even a letter to an inmate from another institution, which was not authorized by the warden, was contraband. Thus the definition encompasses a wide variety of writings.

Finally, the inspection contemplated by the prison policy, as the district court noted, necessitated looking through each separate page of the attorney's file, even though the guard was not interested in reading each page and was not expected to do more than ascertain whether contraband was present. The warden's testimony tended to proceed in two directions, stating that guards understood they were not to read privileged material but acknowledging that some reading would take place. An envelope from an inmate in another institution, bearing his return address, could be noted. Letters from inmates in the institution to an inmate in another institution would also be observed. As the warden explained, "(I)f we are looking for outgoing mail being smuggled out or mail...