Appeal from order of the Western District, John T. Curtin, Chief Judge, dismissing state prisoner's claim of unconstitutional interference by prison officials with mail sent by his attorney.
Lumbard, Hays, and Mulligan, Circuit Judges.
Zachary Morgan, an inmate at New York's Attica Correctional Facility, appeals from an order by Chief Judge Curtin of the Western District dismissing Morgan's pro se civil rights suit (42 U.S.C. § 1983) for injunctive relief and $15,000 damages arising out of allegedly unconstitutional interference by Attica officials with mail sent to Morgan by his attorney in connection with a pending state criminal appeal in the summer of 1973. We affirm.
This suit involved four items of correspondence which Morgan alleged were not handled in accordance with prison regulations governing receipt of mail from an attorney. Under New York prison regulations, "the envelope and contents thereof of outgoing and incoming correspondence [except special correspondence] will be inspected to ascertain that there is nothing present therein which jeopardizes the safety and security of the facility." N.Y. Dep't of Correctional Services, Administrative Bull. No. 20, para. 3 (as amended Dec. 14, 1972).*fn1 Inspection of general correspondence is done in the Correspondence Department by prison officers. Different procedures apply, however, to an inmate's correspondence to and from attorneys and public officials. This "special correspondence" is treated as confidential material and is opened and inspected for contraband only in the prisoner's presence, so that the inmate can make sure that it is not read by prison officials. Morgan's complaint charged that prison officials violated the latter regulation and in doing so infringed his constitutional right to confidential and uncensored communications with his attorney.
The first incident of which Morgan complains occurred on July 14, 1973. Morgan alleged that he received a letter from his court-appointed attorney, Professor Frank S. Polestino of St. John's University School of Law in Jamaica, New York, and that this letter had been unlawfully opened and inspected out of his presence. Both the envelope and letter, which are part of the record on appeal, bear a stamp which prison officials put on general correspondence when they open and inspect it for contraband in the Correspondence Department. It should be noted, however, that the only indication on the envelope that it might have been from an attorney (and thus special correspondence) was a printed return address from St. John's Law School. Over that the name "F. S. Polestino" was handwritten. Morgan's address was also handwritten. Still, Morgan alleged that the officer in the Correspondence Department should have treated it as special correspondence, especially as the officer could have checked the department file and found that Polestino was listed as Morgan's attorney-of-record and had been on his correspondence list for a year.
Morgan further alleged that on July 23, 1973, a second envelope from Polestino was opened and inspected prior to its delivery to Morgan. This one was larger and contained the brief being prepared for Morgan's appeal. The address and return address were typed, and Attorney-at-Law was stamped on the front. Despite this clear indication that the mail was from an attorney, prison officials treated the package as general correspondence. Morgan claimed that when he received the package the last two pages of the appeal brief were missing.
Morgan complained to Correction Officer Harold Steggs that his legal mail was being treated as general correspondence and charged that someone had intentionally removed the two missing pages from the brief. Steggs, who worked in the Correspondence Department, sent Morgan the following response the next day:
Mr. Morgan: No one is abusing your right to legal mail, but it is difficult to assume that these Schools of Law are run by competent attorneys. Show me proof that this man was admitted to Law Bar Your legal to and from him will be treated as private legal mail. For your information contents of envelope was not censored.*fn2
Morgan claims that proof that Polestino was a member of the Bar was unnecessary, because Polestino was listed in the Correspondence Department file as his attorney-of-record. Nevertheless he supplied such proof, for which Steggs thanked him.
The complaint in this action was submitted to the court on August 3, 1973. On August 9, 1973, Morgan received a third letter from Polestino containing copies of the two missing pages from the brief and a note in which Polestino said that he was "disturbed to learn that a part of the brief [he] had sent to [Morgan] was missing." This letter was also allegedly opened and inspected prior to delivery to Morgan, and the envelope and note (which are part of the record on appeal) were stamped as general correspondence by prison officials. Like the July 14th envelope, this envelope bore no indication that it was from an attorney other than a printed law-school return address. Again Morgan's address was handwritten, as was Polestino's name.
Finally, on September 4, 1973, Morgan received another short note from Polestino in an envelope similar to those received on July 14th and August 9th. Again it was apparently opened and inspected out of Morgan's presence and stamped as general correspondence by prison officials.
Morgan's complaint was accompanied by an application to proceed in forma pauperis which the court granted on September 18, 1973, also ordering the defendants to show cause why Morgan should not be allowed to proceed further in forma pauperis. Defendants filed affidavits from Correction Officers Stephen Seely and Steggs, who responded to charges concerning the July 14th and 23d incidents -- the only two raised by Morgan by that time. Seely, who had been on duty July 14th, stated that he had no recollection of opening the letter in question. He noted that inmate's legal mail is handled in the regular course of business pursuant to Administrative Bulletin No. 20, and that when mail from attorneys arrives bearing no indication that it is from an attorney, it is opened in the Correspondence Department. Steggs stated that Morgan's legal mail was opened before Morgan on July 23, 1973.*fn3
In a four-page affidavit dated October 23, 1973, Morgan contested the affidavits of Steggs and Seely and stated that he had proof that his legal mail had been handled in violation of prison regulations over an extended period of time. On January 15, 1974, the court ordered him to submit such evidence. This he did on January 28th, along with a further affidavit. His evidence consisted not only of the envelopes from July 14th and July 23rd, but also the additional envelopes from August 9th and September 4th ...