Treff v. Galetka, 95-4012

• Decision Date: 10 January 1996
• Docket Number: No. 95-4012,95-4012
• Citation: 74 F.3d 191
• Parties: Robert Shawn TREFF, Plaintiff-Appellant, v. Kerry GALETKA, individually and as the Mailroom Supervisor at the Utah State Prison, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 191

74 F.3d 191

Robert Shawn TREFF, Plaintiff-Appellant, v. Kerry GALETKA, individually and as the Mailroom Supervisor at the Utah State Prison, Defendant-Appellee.

No. 95-4012.

United States Court of Appeals Tenth Circuit.

Jan. 10, 1996.

Robert Shawn Treff, pro se.

Brent A. Burnett, Assistant Attorney General and Jan Graham, Utah Attorney General, Salt Lake City, Utah, for Defendant-Appellee.

Before KELLY, SETH, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

After examining the briefs and the appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed.R.App.P. 34(f) and 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

I. BACKGROUND

Plaintiff Robert Shawn Treff, appearing pro se, appeals the district court's order adopting the magistrate judge's recommendation to grant summary judgment to defendant Kerry Galetka. We affirm.

Mr. Treff, who was an inmate at a Utah state prison during the time his claims arose, filed a complaint under 42 U.S.C. Sec. 1983 alleging that his rights guaranteed by the First, Eighth and Fourteenth Amendments were violated when Ms. Galetka, acting for herself and as the prison mail room supervisor, interfered with his outgoing mail. Mr. Treff alleged that between October 1990 and March 1992, sixteen pieces of mail were not processed by the prison mail room and consequently were never delivered to the addressees. After he filed three grievances, the prison grievance coordinator conducted an investigation by contacting at random three of the addressees Mr. Treff claims did not receive his letters. Of those, two responded that they had received the letters, but had not replied to Mr. Treff. The third inquiry was returned as undeliverable by the United States Postal Service. The grievance investigator concluded that the addressees of Mr. Treff's letters had chosen not to respond, and the investigation was closed. Mr. Treff maintains that the addressees, particularly his children and his mother, would have responded if they had received his letters.

II. DISCUSSION

On appeal, Mr. Treff claims: (1) Ms. Galetka interfered with his First Amendment rights generally to communicate by mail, to associate religiously through the mail, and to access the courts via mail; (2) Ms. Galetka was liable for her actions and those of her subordinates in failing to process his mail; (3) genuine issues of disputed material facts exist, precluding summary judgment; and (4) the district court erroneously revoked his in forma pauperis status and ordered him to pay mileage and service fees.

Mr. Treff also attempts to raise on appeal the issue of his right to communicate with his legal counsel through the mail. Because he did not raise that issue in the district court, we decline to address it here. See Rademacher v. Colorado Ass'n of Soil Conservation Dists. Medical Benefit Plan, 11 F.3d 1567, 1571 (10th Cir.1993) (issues not argued to the district court will not be considered on appeal). For the same reason, we do not address Mr. Treff's claim that the prison grievance procedure did not meet minimum standards required by law.

We review the grant of summary judgment de novo, applying the same standard as did the district court. Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). We view the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).

A. Qualified Immunity Defense

Ms. Galetka raised the defense of qualified immunity. Therefore, we first address the threshold legal question of whether Mr. Treff has "demonstrate[d] that the defendant's actions violated a constitutional ... right." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995); see also Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). "On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.... If the law was clearly established, the immunity defense ordinarily should fail...." Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). In a qualified immunity inquiry, "the very action in question does not have to have previously been held unlawful, [if] 'in the light of pre-existing law the unlawfulness [was] apparent.' " Albright, 51 F.3d at 1535 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)).

In this case, we must determine whether Ms. Galetka is entitled to qualified immunity from Mr. Treff's claims that she violated his right to access to the courts and his right to communicate by mail with others outside the prison. The district court found that Mr. Treff had produced no evidence that Ms. Galetka had interfered with his court mail and denied the court access claim. The district court also held that Ms. Galetka was entitled to qualified immunity because the law was not clearly established that prisoners had a First Amendment right to have their outgoing mail processed for delivery by the United States Postal Service, absent censorship or other restrictions on freedom of expression.

1. Right to Access to the Courts

In analyzing Ms. Galetka's qualified immunity defense, we first conclude that a prisoner's constitutional right of access to the courts is clearly established. Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir.), cert. denied, 474 U.S. 1032, 106 S.Ct. 593, 88 L.Ed.2d 573 (1985). We next address whether Mr. Treff stated a claim for denial of access to the courts. To do so, he must show that any denial or delay of access to the court prejudiced him in pursuing litigation. Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir.1978) (denial); Kincaid v. Vail, 969 F.2d 594, 603 (7th Cir.1992) (delay), cert. denied, 506 U.S. 1062, 113 S.Ct. 1002, 122 L.Ed.2d 152 (1993).

Here, Mr. Treff alleges two instances in which the prison mail system resulted in prejudice to his litigation: (1) he did not receive the magistrate judge's initial report and recommendation in this case, and (2) in another case, his objections to the magistrate judge's report and recommendation were received by the court after the due date, resulting in the court's refusal to consider them. Mr. Treff has not been prejudiced by any alleged prison mail room deficiencies in either instance. In the first, the court permitted him to respond to the magistrate judge's report, as if he had received it timely. In the second, if Mr. Treff's objections were mailed from the prison in a timely fashion, the court should have considered them. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990). If the court failed to do so, the problem was with the court, not with the prison mail room. Mr. Treff also alleges that mail to and from the federal district court on three occasions took four, seven, and nine days, but he claims no prejudice as a result of these delays. Therefore, Mr. Treff has not shown that the prison mail room denied him his constitutional right to access to the courts. Ms. Galetka is thus entitled to qualified immunity from Mr. Treff's claim that she denied him access to the courts.

2. Right to Have Outgoing Mail Processed

We next consider Ms. Galetka's qualified immunity defense in the context of Mr. Treff's claim that a failure to process his mail violated his constitutional rights. He does not claim that his religious mail was censored because of its content. Therefore, we need not consider religious mail separately from other mail. Correspondence between a prisoner and an outsider implicates the guarantee of freedom of speech under the First Amendment and a qualified liberty interest under the Fourteenth Amendment. Procunier v. Martinez, 416 U.S. 396, 408, 418, 94 S.Ct. 1800, 1809, 1814, 40 L.Ed.2d 224 (1974). Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S.Ct. 1874, 1881-82, 104 L.Ed.2d 459 (1989), overruled Martinez 's standard of review for limitations placed on a prisoner's right to incoming mail, but Thornburgh did not overrule Martinez 's holding pertaining to outgoing mail. The Thornburgh Court recognized that "[t]he implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials," Thornburgh, 490 U.S. at 413, 109 S.Ct. at 1881.

Under Martinez, limitations on a prisoner's First Amendment rights in his outgoing mail "must further an important or substantial governmental interest unrelated to the suppression of expression [and] ... must be no greater than is necessary or essential to the protection of the particular governmental interest involved." Martinez, 416 U.S. at 413, 94 S.Ct. at 1811; see also Leonard v. Nix, 55 F.3d 370, 374 (8th Cir.1995) (same). There is no suggestion that denying a prisoner the privilege of sending out any mail, or refusing to mail selected pieces of mail, was necessary in this case to serve "an important or substantial interest," Martinez, 416 U.S. at 413, 94 S.Ct. at 1811.

A refusal to process any mail from a prisoner impermissibly interferes with the addressee's First and Fourteenth Amendment rights. See id. at 408, 94 S.Ct. at 1809. Accordingly, we hold that a prisoner's constitutional right to have his mail processed for delivery was clearly established at the time Mr. Treff's mail was allegedly not processed. Cf. Procunier v. Navarette, 434 U.S. 555, 562-63, 565, 98 S.Ct. 855, 860, 861, ...