Jensen v. Klecker
| Citation | 648 F.2d 1179 |
| Decision Date | 15 May 1981 |
| Docket Number | No. 80-2167,80-2167 |
| Parties | Herbert O. JENSEN et al., Appellants, v. Edward J. KLECKER, Joseph H. Havener, Winston Satran, Robert Coad, Gary Hornbacher, Kenneth Schaff, Harold Hoffman, Anton Doll, John R. Hessinger, Alice Ackerman and Mirna Schlosser, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Herbert O. Jensen, Bismarck, N. D., pro se.
Edwin F. Zuern, Sp. Asst. Atty. Gen., Bismarck, N. D., for appellees.
Before LAY, Chief Judge, and STEPHENSON and McMILLIAN, Circuit Judges.
Herbert O. Jensen and Kenneth Hagle, inmates at the North Dakota State Penitentiary 1 appeal from summary judgment granted in favor of defendants. The decision of the district court is affirmed in part and reversed in part for the reasons stated below.
Jensen and Hagle initiated this pro se action under section 1983 against Edward J. Klecker, Director of the North Dakota Department of Institutions and various other prison officials. Originally, five separate actions were filed but these were later consolidated into one comprehensive complaint. That complaint alleges that Hagle's and Jensen's civil rights were violated in the following ways:
(1) that prison officials regularly open all of plaintiff Jensen's incoming nonlegal mail without his consent and, further, that all prisoners are required to deliver all outgoing mail to the prison mail box so that it may be inspected prior to sealing;
(2) that inmates are routinely required to deliver all outgoing legal mail to a prison official who inspects it in the presence of the inmate then orders the inmate to seal it and then initials it;
(3) that from April, 1976, to February, 1980, prison officials, on nine different occasions, willfully and deliberately opened clearly marked legal mail addressed to Jensen and that the practice is a continuing one;
(4) that prison policy permits prison officials to deduct money from inmate financial accounts without vouchers signed by individual inmates to show accountability;
(5) that on or about December 22, 1978, a package of food mailed to Jensen by his brother was intercepted by prison officials and returned, via mail, to the sender;
(6) that both Jensen and Hagle were deprived of property without due process in that prison officials refused to redeem certain inmate scrip held by them; and
(7) that prison officials are currently in possession of certain items and funds belonging to the Wallstreet Jaycees, an inmate organization that was suspended from operation by prison officials and prison officials have not returned the property nor made an accounting to members of that organization remaining in the inmate population.
After reviewing exhibits and affidavits submitted by the parties the district court granted defendant's motion for summary judgment 2 from which plaintiffs Jensen and Hagle appeal.
Plaintiffs challenge the district court's decision to grant summary judgment on two grounds:
(1) that they received no notice of the court's intention to rule on the request for summary judgment; and
(2) that summary judgment was improperly granted in that there exists genuine issues of fact and that defendants were not entitled to judgment as a matter of law. 3
Plaintiff's contention that they were not given notice in accord with Jensen v. Klecker, 599 F.2d 243 (8th Cir. 1979) is without merit. Jensen v. Klecker involved an earlier dismissal of this case by the district court through granting of a motion to dismiss. This court held that where the trial court considered affidavits outside of the pleadings in ruling on the motion plaintiffs were entitled to notice that the motion to dismiss had been converted to one for summary judgment as well as an opportunity to file opposing materials. Jensen v. Klecker is inapplicable here since the court in this case ruled upon defendant's motion for summary judgment. Not only did plaintiffs receive notice through the filing of the motion itself but had ample opportunity to file materials in opposition to it as evidenced by their motion and brief filed in response.
Summary judgment is granted only where the record clearly demonstrates that no genuine issue of material fact exists and that the movant is entitled, as a matter of law, to judgment in his favor. Glover v. National Broadcasting Co., Inc., 594 F.2d 715, 717 (8th Cir. 1979). It should not be entered unless the movant has established his right to judgment "with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances." Robert Johnson Co. v. Chemical Interchange Co., 541 F.2d 207, 209 (8th Cir. 1976). It is, however, up to the party opposing the motion to set forth specific facts showing a genuine issue for trial. Glover v. National Broadcasting Co., 594 F.2d at 717.
Plaintiffs contend that the routine inspection of incoming and outgoing nonlegal mail constitutes a violation of their civil rights. Defendants concede that all nonlegal mail, both incoming and outgoing, is routinely inspected for contraband. In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) the Supreme Court set down guidelines for determining when the censorships of inmate mail was proper. In doing so the court stated:
(T)he legitimate governmental interest in the order and security of penal institutions justifies the imposition of certain restraints on inmate correspondence (I)t is not our purpose to survey the range of circumstances in which particular restrictions on prisoner mail might be warranted by the legitimate demands of prison administration as they exist from time to time in the various kinds of penal institutions found in this country.
Procunier v. Martinez, 416 U.S. at 412-13, 94 S.Ct. at 1810-11.
The Supreme Court implicitly approved the opening of non-privileged mail to inspect for contraband in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), decided shortly after Martinez. There the Court pointed out "freedom from censorship is not equivalent to freedom from inspection or perusal." Id. at 576, 94 S.Ct. at 2984. Non-privileged inmate mail is clearly not immune to inspection, thus such inspections cannot give rise to civil rights violations. Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978); Laaman v. Helgemoe, 437 F.Supp. 269 (D.N.H.1977); Stover v. Carlson, 413 F.Supp. 718 (D.Conn.1976); United States Ex Rel. Dean v. Johnson, 381 F.Supp. 495 (E.D.Pa.1974). It seems clear under these cases that the mere inspection of nonlegal incoming and outgoing mail poses no threat to plaintiffs' civil rights. Summary judgment on this point was proper.
Privileged prisoner mail, that is mail to or from an inmate's attorney and identified as such, may not be opened for inspections for contraband except in the presence of the prisoner. Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 2984-85, 41 L.Ed.2d 935 (1974). Many of the exhibits introduced by plaintiffs as examples of legal mail simply do not appear to come within the parameters of the attorney-client mail privilege. See Wolff v. McDonnell, 418 U.S. at 576, 94 S.Ct. at 2984. For example, a letter from the American Civil Liberties Union addressed to President, Wallstreet Jaycees, and bearing no other markings, obviously does not fall within the scope of that privilege. Wolff requires that all such mail be specially marked as originating from an attorney, with that attorneys name and address. 4 However, one exhibit, a copy of a letter from the National Prison Project, bearing the name of an attorney and which was stamped "Lawyer Client Mail Do Not Open Except In Presence of Prisoner" and which was addressed to plaintiff Jensen appears to come well within the definition of attorney-client mail. This would tend to rebut defendants' claim that the mail opened was not clearly marked. Coupled with plaintiffs' assertions that the opening of such mail was done deliberately and on a continuing basis, and contrasted with the defendants' vague claim that in the case of clearly marked mail some mistakes were made, this indicates that some factual issues remain to be resolved on this point. Accordingly, summary judgment is vacated as to this issue and the case remanded to the district court for further proceedings.
Plaintiff Jensen complains that a food package sent by his brother was not given to him but was returned, via mail, to sender by prison officials. Defendants do not deny plaintiffs allegations. Affidavits and exhibits indicate that inmates were informed approximately six weeks prior to arrival of package that no more food parcels would be allowed. Institutions may impose restrictions on the receipt of packages from outside the penitentiaries. Bell v. Wolfish, 441 U.S. 520, 555, 99 S.Ct. 1861, 1882, 60 L.Ed.2d 447 (1979). Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978). The district court properly granted summary judgment on this issue.
Plaintiff Jensen complains that deducting postage costs above the two free letters per week allowed each prisoner without a signed voucher to show accountability by prison officials deprives him of his property without due process. The deprivation of property without due process is cognizable under section 1983. Lynch v. Household Finance, 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). However, it appears that no basis for recovery exists in this case. Both parties concede that the deductions made from the inmates account are done so in accordance with prison regulations. Exhibits indicate that a log was kept indicating the amount deducted, the date and the destination of each letter or parcel mailed and that inmates are regularly furnished with monthly statements of their...
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