Reneer v. Sewell

• Decision Date: 15 September 1992
• Docket Number: No. 91-5577,91-5577
• Parties: John E. RENEER, Plaintiff-Appellant, v. Lt. Brian SEWELL; Al C. Parke; Laura Vestal, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 258

975 F.2d 258

John E. RENEER, Plaintiff-Appellant, v. Lt. Brian SEWELL; Al C. Parke; Laura Vestal, Defendants-Appellees.

No. 91-5577.

United States Court of Appeals, Sixth Circuit.

Submitted June 19, 1992.

Decided Sept. 15, 1992.

John E. Reneer, pro se.

Susan Alley (briefed), Office of General Counsel, Corrections Cabinet, Frankfort, Ky., for defendants-appellees.

Before: MERRITT, Chief Judge; and KEITH and RYAN, Circuit Judges.

RYAN, Circuit Judge.

In this action brought under 42 U.S.C. § 1983, plaintiff John E. Reneer, a former inmate at the Kentucky State Reformatory, alleges that defendants, various corrections officials, violated his First Amendment rights by reading his incoming legal mail. He appeals the district court's order granting defendants' motion for summary judgment, limiting future filings by plaintiff in forma pauperis, 28 U.S.C. § 1915(d), and denying his motion to appoint counsel. We vacate that portion of the district court's order granting summary judgment to the defendants and remand for further proceedings, but affirm its judgment in all other respects.

I.

In his pro se complaint, Reneer alleged that on two occasions in December 1990, prison officials read his incoming legal mail in violation of prison policy and the First Amendment. He sought declaratory, injunctive, and monetary relief. Specifically, Reneer avers that defendant Lt. Brian Sewell, a prison officer, in the presence of plaintiff and another defendant, mail room employee Laura Vestal, on two occasions opened envelopes identified as privileged legal mail and "read," rather than merely "scanned," the contents of the envelopes prior to delivering them to plaintiff. The first envelope was from J. Vincent Aprile 2d, an attorney in the Kentucky Department of Public Advocacy, and contained documents pertaining to the case Reneer v. Stephens, Franklin (Ky.) Circuit Court, No. 90-CI-1278. The second was sent by an attorney from the Kentucky Corrections Cabinet, and contained discovery documents pertaining to Reneer v. Wigginton, Oldham (Ky.) Circuit Court, No. 90-CI-445, yet another of plaintiff's numerous civil cases pending in the state and federal courts. Reneer claims that Sewell read his legal mail in retaliation for his attempts to have perjury charges brought against a former corrections staffer and that the actions were intended to chill his right to free speech under the First Amendment.

The district court, following de novo review of the magistrate judge's report and recommendation, granted summary judgment to defendants, holding that the inspections were not violative of plaintiff's constitutional rights, as a matter of law, based on the in camera affidavit of defendant Al Parke, the prison warden, establishing that he ordered a search of plaintiff's incoming mail based on suspicions that plaintiff might be involved in the disappearance of certain mail logs from the prison mail room. Defendants claim this suspicion justified the search as necessary to avoid further breaches of security.

A district court's order granting summary judgment is reviewed de novo. Leila Hosp. & Health Ctr. v. Xonics Medical Sys., Inc., 948 F.2d 271, 273 (6th Cir.1991). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

Reneer relies primarily on Preston v. Cowan, 369 F.Supp. 14 (W.D.Ky.1973), and Kentucky Corrections Policy and Procedure No. 16.2 as the basis for his section 1983 claim. In Preston, the court set forth several rules related to the handling of prisoner mail. It stated:

With respect to incoming mail addressed by a person in the privileged class to the inmate, ... the Court holds that the prison officials may inspect such privileged incoming mail for contraband only, and only in the presence of the inmate. The prison authorities would be given the right to retain the envelope but must hand the letter to the inmate without reading it in his presence.

Id. at 24 (emphasis added). These requirements have been instituted by prison authorities in Kentucky Corrections Policy No. 16.2, which states, in pertinent part, that "incoming mail from privilege [sic] correspondents shall be subject to opening for inspection for contraband only and shall be conducted in the presence of the inmate ... [and] shall not be read."

Reneer claims that defendants' actions were taken to "chill[ ] and retaliate[ ] against [plaintiff] for exercising his first amendment right to seek legal redress, a legal activity." With respect to claims such as Reneer's, we have stated that while "random interference with a prisoner's mail based upon a reasonable suspicion that the prison's security was being jeopardized" is constitutionally permissible, the "arbitrary opening and reading of ... mail [with] [n]o justification--other than harassment" may violate the First Amendment. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir.1986).

Even were we to accept defendants' proffered justification that close inspection of Reneer's incoming legal mail was necessary to discover whether plaintiff was involved in the disappearance of the missing mail logs, it is difficult to understand why prison officials would ever have to read an inmate's legal mail in search of such "contraband." Moreover, if the mail was actually read, and this action was motivated by retaliation as plaintiff alleges, such behavior by prison officials might constitute the type of arbitrary action proscribed in Parrish, 800 F.2d at 604. While it may seem perfectly reasonable to this court that prison...