UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: June 28, 1972.
GREGORY WILKINSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,
ALBERT W. SKINNER, MONROE COUNTY SHERIFF, AND LIEUTENANT ANTHONY GOMBATTO, MONROE COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS-APPELLEES
Friendly, Chief Judge, and Smith and Oakes, Circuit Judges.
OAKES, Circuit Judge:
Plaintiff-appellant Wilkinson is awaiting trial in the Monroe County Jail, Rochester, New York, because he could not raise bail. He appeals from the district court's dismissal, without a hearing, of his § 1983 action*fn1 against jail officials, in which he complains (1) that all his outgoing and incoming mail has been censored; (2) that certain outgoing mail to his mother and attorney was not sent by defendants-appellees; and (3) that copies of a newspaper to which he subscribes were withheld from him by them.
Appellant requests reversal of the judgment below and remand for a three-judge court proceeding to decide his challenge to the constitutionality of 7 NYCRR § 5100.10(e),*fn2 which as it stood at the time of argument required censorship of all outgoing and incoming mail of local jail inmates awaiting trial. He also sought below, and was denied, preliminary as well as permanent injunctive relief from the censorship, in order to make possible necessary pretrial communication with his New York City counsel. The defendant sheriff in charge of the county jail conceded that his censorship was "pursuant to" the regulation in question.
As to mail to and from counsel, this court had already made it very clear that prison officials who would interfere with first amendment rights bear a heavy burden to show abuse in terms of transmittal of contraband or the laying of plans for some unlawful scheme. See Wright v. McMann, 460 F.2d 126 (2d Cir. 1972); Sostre v. McGinnis, 442 F.2d 178, 200-201 (2d Cir. 1971), cert. denied, Oswald v. Sostre, 405 U.S. 978, 31 L. Ed. 2d 254, 92 S. Ct. 1190 (1972). See also Carothers v. Follette, 314 F. Supp. 1014, 1024 (S.D.N.Y. 1970). Several of the cases from other circuits take the same view. E.g., Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972), aff'g 328 F. Supp. 162 (D. Me. 1971) (Gignoux, J.); see Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971). This case was all the more compelling because sixth amendment rights were also involved.
Since argument, however, the State Commission of Correction approved amended regulations, set out in the margin,*fn3 effective immediately. We commend the Commission for taking this initiative, construe the amended regulation generously on its face, and hold that this case has thereby been mooted.
We construe the amended regulation to mean that there is no limitation on the amount of "special correspondence" a detainee may have with counsel. § 5100.10(e) (6). Clearly the regulation forbids examination or censorship of the content of such correspondence, even while it permits inspection for contraband, in the presence of the detainee. Such a provision adequately protects the sixth amendment right of detainees to effective assistance of counsel and precludes the official censorship or the reading that may so adversely affect the the inmate's free exercise of the right to consult with counsel.*fn4 On this point, then, we consider that the new regulations render the principal issue in the case moot. Cf. Richardson v. Wright, 405 U.S. 208, 92 S. Ct. 788, 31 L. Ed. 2d 151 (1972). See generally, C. Wright, Law of Federal Courts 35-36 (2d ed. 1970).
We take the same view of that portion of the amended regulation which permits reading of other than "special" incoming and outgoing correspondence "to protect the safety and security of the facility and the welfare and best interests of the prisoners" and refusal to mail outgoing letters or to accept incoming mail "where it is apparent that there exists a clear and present danger to the jail or penitentiary." This language represents a considerable improvement over the earlier regulations. Sostre v. McGinnis, supra, 442 F.2d at 201, did "leave a more precise delineation of the boundaries of this protection [against censorship] for future cases." See Wright v. McMann, supra, 460 F.2d at 136 (concurring opinion). But under the new regulations censorship (by non-mailing) is apparently permitted only in the case of a "clear and present danger" to the facility's security, so that the new regulations have made a "more precise delineation" and one that appears to us to balance the conflicting interests appropriately. See also Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87 (1971).
Absent a showing that appellant's correspondence with his mother in Los Angeles would pose a clear and present threat to prison discipline or security, presumably such correspondence will not be further interfered with by the appellees.*fn5
We affirm the judgment below for mootness.