UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: May 6, 1975.
ZACHARY MORGAN, APPELLANT,
ERNEST MONTANYE, WARDEN OF ATTICA STATE PRISON, CORRECTION OFFICER STEGGS, ET AL., APPELLEES
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.
LUMBARD, Circuit Judge:
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 allegedly opened and inspected out of his presence. Polestino's letters from July 14th, August 9th, and September 4th were also included.
On June 3, 1974, Judge Curtin filed a brief opinion dismissing this action. He noted first that it was possible that prison officials had opened the envelopes inadvertently not realizing they were legal mail, but he found that whether or not respondents' conduct in opening the letters was inadvertent, it was constitutionally permissible under this circuit's en banc decision in Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740, cert. denied, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972). In Sostre, after holding that a prison warden had improperly refused to mail Sostre's complaint to a postal inspector and had improperly deleted material from a letter to Sostre's attorney as being irrelevant to Sostre's criminal appeal, this court stated:
We leave a more precise delineation of the boundaries of this protection [against censorship] for future cases. We need only add that when we say there may be cases which will present special circumstances that would justify deleting material from, withholding, or refusing to mail communications with courts, attorneys, and public officials, we necessarily rule that prison officials may open and read all outgoing and incoming correspondence to and from prisoners. Id. at 201 (latter emphasis added).
In considering Morgan's appeal, it should be noted that the dismissal below was based upon evidence set forth in affidavits submitted by Morgan, as well as exhibits attached thereto, and also on affidavits submitted by defendant prison officials. The decision is thus essentially a grant of summary judgment for defendants, with the issue on appeal being whether the complaint, affidavits and exhibits raise material issues of fact requiring a trial. See United States ex rel. Haymes v. Montanye, 505 F.2d 977, 979 (2d Cir. 1974). In determining whether Morgan's affidavits and exhibits support a cause of action, the court must be sensitive to the fact that Morgan was proceeding pro se below,*fn4 just as it would be were it considering a decision dismissing his pro se complaint prior to the submission of any evidence, see Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). However the affidavits and exhibits, even liberally construed in Morgan's behalf, make it clear that Morgan's suit was properly dismissed.
Focusing first on Morgan's primary claim that prison officials unconstitutionally opened and inspected mail from his attorney out of his presence, we find that Morgan's complaint, affidavits, and exhibits allege only a single instance (the July 23d package) where legal mail, clearly marked as being from an attorney,*fn5 was opened out of his presence. From that single incident there is no indication that Morgan suffered any damage. Even assuming that the last two pages of the brief from Polestino contained in that package were missing as a result of its being opened out of Morgan's presence, Morgan notified Polestino by letter dated July 24, 1973, that the two pages were missing, and Polestino sent copies thereof with a note on August 7th. Following receipt of this letter on August 9th, Morgan made no attempt to contact his attorney and suggest any changes in the brief or add points he wanted to be made in a supplemental brief or at oral argument. Indeed, Polestino wrote Morgan at the end of August, stating that he had not heard from Morgan since late July and reminding him that oral argument of Morgan's criminal appeal was due in several weeks.
Even considering the letters received on July 14th, August 9th, and September 4th, which were not clearly marked as being from an attorney, there is still no indication that Morgan suffered any damage whatsoever. The notes from Polestino are in the record on appeal and there is nothing contained therein the disclosure of which could have prejudiced Morgan's state appeal in any way, even assuming that the mail was read when it was inspected*fn6 and that the guard had any reason to tell anyone about it. The only possible claim of damages is with respect to the July 14th letter in which Polestino listed the arguments he planned to include in Morgan's appellate brief, which was due within two weeks, but even here the state would already have a general idea of the claims Morgan would raise on appeal. Moreover, Morgan appears to have made no complaint at the time about the alleged mishandling of that letter.
Of course, the opening of legal mail out of a prisoner's presence may cause some prejudice by inhibiting the prisoner and his attorney from discussing in such correspondence matters which they would wish to remain confidential, and this might affect the lawyer's ability to represent his client most effectively. However, there is no indication that the events complained of affected in any way correspondence between Polestino and Morgan concerning Morgan's criminal appeal or any other matter. Indeed it seems that Morgan had little, if anything, to say to Polestino during the time period in question,*fn7 as indicated by the letter from Polestino to Morgan received September 4th, in which Polestino noted that he had not heard at all from Morgan since late July, when Morgan had written that two pages of the brief were missing. Moreover, other than the July 23rd package, there is no indication that mail to Morgan from an attorney, clearly marked as such, was opened out of his presence and in violation of prison regulations which protect the confidentiality of inmate/attorney correspondence. It should be noted that Morgan submitted an affidavit to the district court as late as January 28, 1974, and the district court had the matter sub judice until June 10th 1974, yet Morgan points to no other instance where legal mail, clearly marked as being from an attorney, was opened.
In these circumstances, we find that the district court properly dismissed Morgan's claim with respect to defendant's allegedly unconstitutional inspection of Morgan's legal mail out of his presence. Sostre v. McGinnis, supra, relied upon by the district court, expressly permits the opening and reading of prisoner's mail, even from an attorney, in the interest of prison security. Moreover, even if this court were to undertake the reexamination of Sostre urged by Morgan's counsel on appeal and possibly modify Sostre by way of recognizing a right of a prisoner to confidential correspondence with his attorney,*fn8 on the record of this case, Morgan's complaint would still have been properly dismissed. There is no basis for any finding that Polestino's effectiveness in representing Morgan was in any way impaired or that Morgan's exercise of his right of access to the courts was in any way chilled. Moreover, injunctive relief seems improper where prison regulations protect the confidentiality of attorney/inmate mail and where Morgan alleges only a single instance, now almost two years old, where legal mail, clearly marked as such, was opened and inspected out of his presence.
Morgan makes the additional claim that the case should be reversed and remanded for a trial on the issue of whether prison officials unlawfully censored the last two pages of the appellate brief prepared by Polestino and received at the prison on July 23d in an envelope clearly marked Attorney-at-Law. It is quite possible that Polestino inadvertently failed to include the last two pages of the brief or that they became detached and were mislaid during the handling of the brief prior to mailing or at the prison. But even assuming that prison officials were responsible,*fn9 we believe that the claim was properly dismissed, as this was the sole instance complained of where a portion of a letter was missing and, as indicated above, there is no indication that Morgan suffered any damage as a result of not receiving these papers on July 23rd. Standing alone, the loss of these papers seems inadvertent and hardly the basis for a successful constitutional assault.
Oakes, Circuit Judge (dissenting):
I respectfully dissent from the denial of rehearing en banc.
If prison inmates have any rights against prison censorship of mail those rights exist in respect to correspondence with their own attorneys, by virtue of Fifth and Sixth as well as First Amendment considerations. Note, Prison Mail Censorship and the First Amendment, 81 Yale L.J. 87, 98 (1971). It is true that Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc), cert. denied, 405 U.S. 978, 92 S. Ct. 1190, 31 L. Ed. 2d 254 (1972), held that all outgoing and incoming correspondence to and from prisoners could be opened and read (442 F.2d at 201). But, following Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974), mail censorship has to be conducted under standards that meet the requirements of the First and Fourteenth [or Fifth] Amendments, and surely implicitly the Sixth Amendment right to effective assistance of counsel. That is to say, in this situation the State has the heaviest of burdens to show that the censorship "regulation or practice in question . . . further[s] an important or substantial governmental interest unrelated to the suppression of expression." 416 U.S. at 413. Not only must "the limitation of First Amendment freedoms . . . be no greater than is necessary or essential to the protection of the particular governmental interest involved," id., there must be, moreover, "minimum procedural safeguards" in protection of the inmate's rights, including "a reasonable opportunity to protest" the censorship decision. Id. at 417, 418. #ISee also Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964). While the majority of the Court in Procunier v. Martinez was concerned with censorship of prison inmate mail and did not reach the specific issue whether prison authorities do have a general right to open and read all incoming and outgoing prison inmate mail, the concurring opinion of Mr. Justice Brennan and Mr. Justice Marshall does reach that issue and denies the authorities that right. See especially 416 U.S. at 424-25. If physical tests for contraband are inadequate, they insist, mere opening and inspection but not reading suffices. 416 U.S. at 425 and n. 6.
We are dealing here, moreover, not simply with the constitutional right to uncensored correspondence between any outsider and the prisoner, but on the even higher plane of the attorney-client privilege since here involved is the right to free correspondence between prisoner and counsel. As the Seventh Circuit said in Adams v. Carlson, 488 F.2d 619, 631 (7th Cir. 1973), "there has been widespread agreement that communications by post between an inmate and his attorney are sacrosanct, subject only to tests on incoming mail for the presence of contraband which fall short of opening it when the inmate is not present." The other leading case is Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972). Smith affirms an Adams type of ban on opening attorney-prisoner correspondence (even to search for contraband) except in the presence of the prisoner. If such opening were allowed, Chief Judge Aldrich reasoned,
a prisoner, and possibly some attorneys, may feel, if only to a small degree, that someone in the chain of command may not be trusted [not to read the letter] and that the resulting fear may chill communications between the prisoner and his counsel. 454 F.2d at 697. Cf. Bach v. Illinois, 504 F.2d 1100 (7th Cir. 1974); McDonnell v. Wolff, 483 F.2d 1059, 1066-67 (8th Cir. 1973), aff'd in part, rev'd in part, 418 U.S. 539, 577, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Goodwin v. Oswald, 462 F.2d 1237 (2d Cir. 1972); Rhem v. McGrath, 326 F. Supp. 681, 691 (S.D.N.Y.1971) (protecting verbal exchange); and then District Judge Mansfield's Carothers v. Follette, 314 F. Supp. 1014, 1023 (S.D.N.Y.1970). It is my view in short that we are required to qualify Sostre at this time, by incorporating the Adams and Smith requirement that the inmate be present if his attorney's mail is to be opened at all for the limited purpose of searching for contraband.
There are some implications or suggestions in the panel opinion beyond its rigid, dated reading of Sostre that possibly there was confusion on prison officials' parts as to whether it was legal mail that was being opened. But a name file of attorneys of record was maintained at Attica and the name of appellant's attorney, a St. John's University Law School professor, had been listed in that file for a year as appellant's attorney. While only one of four letters from the attorney that were improperly opened contained him name on the envelope, they all bore a printed return address from St. John's Law School. Moreover, the written reason given by the correction officer who did open and read Morgan's mail clearly set forth the officer's knowledge that the St. John's law professor was Morgan's attorney; the officer only wanted proof that he was a "competent attorney" and "admitted to the Law Bar." The issue cannot, in my opinion, be ignored on the ground of confusion or uncertainty on the part of the officer. Parenthetically, it is to be noted that Procunier v. Martinez expressly held, 416 U.S. at 420, that a ban against "the use of law students and other paraprofessional personnel" to advise prison inmates was improper, so that the Attica officer's concern with the competence of Morgan's counsel was officiousness now constitutionally unjustified.
Even less can be said for the panel's gratuitous reference to, if not alternative reliance upon, the absence of allegation that Morgan had "suffered any damages." This is a civil rights claim. An allegation of damages purely nominal in nature, therefore, is entirely sufficient. Joseph v. Rowlen, 425 F.2d 1010 (7th Cir. 1970); Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965). See United States ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975). As in the case of defamation where the law allows recovery for language actionable per se even absent proof of damages, 1 F. Harper & F. James, The Law of Torts § 5.30, at 468 and n.2 (1956 ed.), the action provides a vindicatory function. A jury, moreover, may give "general" damages for violation of a constitutional right. Cf. Nixon v. Herndon, 273 U.S. 536, 71 L. Ed. 759, 47 S. Ct. 446 (1927); Wayne v. Venable, 260 F. 64, 66 (8th Cir. 1919).
Certainly the right to unfettered access to the court through counsel is a right that is rather fundamental. Argersinger v. Hamlin, 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972); Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55 (1932). For the prison inmate in Attica who has as counsel for the appeal from his conviction an attorney hundreds of miles away in Jamaica, New York, communication with counsel can be achieved only by correspondence. Absent the preservation of the integrity of such communication, the right to counsel is a hollow one, as has been recognized since the reign of Elizabeth I, 8 J. Wigmore, Evidence § 2290, at 542 n.1 (McNaughton rev. 1961). Effective assistance of counsel implies the rigorous preservation of confidentiality of communication, to a point indeed that is a pillar of the canons of legal ethics themselves. See American Bar Association, Code of Professional Responsibility, Canon 4 (1971). Such confidentiality itself is a keystone in the architecture of any enlightened system for the administration of justice.*fn1
I would rehear this important case, wrongly decided and in conflict with other circuits if not recent Supreme Court decisions, en banc.