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May 18, 1981

Anthony DIGUISEPPE, Plaintiff,
Benjamin WARD, Jack Czarnetzky, Eugene S. Lefevre, Robert K. Woods, Robert Labrum, Phillis Curry, and William Donahue, individually and in their official capacities, Defendants

The opinion of the court was delivered by: KNAPP


On August 8, 1977, while the plaintiff was an inmate there, a riot occurred at the Eastern New York Correctional Facility. *fn1" Two days later, in an effort to reinforce prison discipline and security, prison personnel searched the facility to uncover dangerous weapons or other contraband. While in plaintiff's cell, one of the persons conducting the search came across a personal diary belonging to plaintiff and leafed through its pages. His eye caught the date "August 8" (on which the riot had occurred) and, his interest aroused, he read the first page of the entry on which that date appeared. The record does not suggest he read anything to indicate that plaintiff had committed or was about to commit an illegal or dangerous act, or that harm to anyone might be averted on the basis of information found in the rest of the diary. Nevertheless, the searcher took possession of the diary, and gave it to other prison officials, who subsequently reviewed its contents.

 The question presented is whether this taking and reading of the diary violated the plaintiff's right of privacy as guaranteed by the Constitution. We conclude that it did.


 We do not understand defendants to dispute the proposition that non-prisoners would have a protectible interest in the secrecy of a personal diary. Moreover, it seems clear that any such argument would be unavailing. As Justice Brennan observed, concurring in the judgment in Fisher v. United States (1976) 425 U.S. 391, 427, 96 S. Ct. 1569, 1589, 48 L. Ed. 2d 39:

"(W)hile letters, being necessarily interpersonal, are not wholly private, their peculiarly private nature and the generally narrow extent of their disclosure would seem to render them within the scope of the (Fifth Amendment privilege which Brennan describes at 424 to extend only to such testimonial evidence as to which "the individual resisting production had a reasonable expectation of privacy"). Papers in the nature of a personal diary are a fortiori protected under the privilege. (Emphasis supplied.)

 See also United States v. Bennett (2d Cir. 1969) 409 F.2d 888, 897. *fn2"

 The question before us, however, is whether that interest survives in a prison setting. In this connection, we have recently been reminded that " "(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.' " Bell v. Wolfish (1979) 441 U.S. 520, 545-56, 99 S. Ct. 1861, 1877-1883, 60 L. Ed. 2d 447.

 The Supreme Court has also held, however, that "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime." Wolff v. McDonnell (1974) 418 U.S. 539, 555, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935. In Wolff, Justice White, writing for a unanimous Court, observed that among the rights which prisoners had theretofore been held to enjoy were the right to substantial religious freedom under the First and Fourteenth Amendments, the right of access to the courts, the right to protection from invidious discrimination based on race, and the right not to be deprived of life, liberty or property without due process of law. Id.

 To date, the Supreme Court has not extended this list to include such key components of the right to privacy as protection from unreasonable searches and seizures. However, in Bonner v. Coughlin (7th Cir. 1975) 517 F.2d 1311, 1316, reh. en banc 545 F.2d 565 (1976), cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 529 (1978), the Seventh Circuit squarely held that some quantum of Fourth Amendment protection survives in the prison setting. In that case Judge (now Justice) Stevens observed (517 F.2d at 1316):

"Unquestionably, entry into a controlled environment entails a dramatic loss of privacy. Moreover, the justifiable reasons for invading an inmate's privacy are both obvious and easily established. We are persuaded, however, that the surrender of privacy is not total and that some residuum meriting the protection of the Fourth Amendment survives the transfer into custody." (Emphasis supplied.)

 The courts which have since confronted the issue have come to the same conclusion. United States v. Lilly (5th Cir. 1978) 576 F.2d 1240, 1244; United States v. Stumes (8th Cir. 1977) 549 F.2d 831, 832; Hodges v. Klein (D.N.J.1976) 412 F. Supp. 896, 899. See also Wolfish v. Levi (2d Cir. 1978) 573 F.2d 118, 131, rev'd on other grounds sub nom Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); United States v. Dawson (9th Cir. 1975) 516 F.2d 796, 804-806, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80. We adopt these views, and conclude that the question before us is whether the reading of plaintiff's personal diary was reasonable in the particular prison setting in which it occurred.

 In considering this question we are, again, guided by the Supreme Court's reminder in Bell v. Wolfish that the "considerations" underlying the penal system justify infringements on otherwise protected rights. In light of these considerations, various invasions of privacy are tolerated. See, e.g., Bell v. Wolfish, 441 U.S. at 557, 99 S. Ct. at 1883 (random room searches of pre-trial detainees do not infringe their right to privacy; drawers, beds and personal items may all be searched) and at 559, 99 S. Ct. at 1885 (prison authorities may reasonably conduct a strip search after every contact visit with a person from outside the institution). The common denominator in all of these situations, however, is that the invasion is necessary to or at least helpful in providing for the security of the prison or its inmates. *fn3"

 Under the facts here stipulated, we can perceive no such justification. We begin with the proposition that it was proper to search for contraband, and we assume that it was necessary to leaf through the pages of plaintiffs diary to be sure that it contained no easily concealed contraband, such as razor blades. It was therefore virtually inevitable that the searcher's eye would catch isolated words and phrases. We further assume that if any isolated word or phrase thus observed gave rise to the reasonable expectation that the diary contained information concerning imminent danger to inmate safety or prison security, it would be reasonable for the searcher to read on. However, we fail to see how observation ...

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