The opinion of the court was delivered by: SAND
LEONARD B. SAND, U.S.D.J.
The plaintiff, James F. Heimerle, has brought this action pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of 28 C.F.R. § 540.13, promulgated by the Bureau of Prisons.
Plaintiff claims that the regulation in question violates his First Amendment rights with respect to the reading of his general correspondence.
Plaintiff seeks injunctive relief and has moved pursuant to the Federal Rules of Civil Procedure 12(c) for a judgment on the pleadings or, alternatively, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant has cross-moved for summary judgment.
In a previous Opinion, this Court denied defendant's motion to dismiss for failure to state a claim for which relief could be granted, noting that the issues there discussed "require[d] further legal and factual development." Heimerle v. Attorney General, 558 F. Supp. 1292, 1296 (S.D.N.Y. 1983). We believe that summary disposition of this case is now appropriate in light of the expended record before us and in light of the changes in the mail handling procedures that have occurred at the Otisville prison since our last Opinion was rendered.
The plaintiff is a prisoner at a federal correctional institution in Otisville, New York ("Otisville"). Plaintiff challenges the general authority granted to prison personnel under C.F.R. § 540.13 to read incoming and outgoing general correspondence. The plaintiff contends that the regulation and its implementation are violative of his First Amendment rights. Plaintiff does not allege specific acts of arbitrariness or unreasonableness on the part of prison officials and staff. Nor is there a claim that "special correspondence" is being opened.
At the time Heimerle filed this action, outgoing general correspondence was routinely opened and read by prison mail room staff. After the plaintiff filed this action, the security level of the prison, F.C.I. Otisville, New York ("Otisville"), was changed from "level 4" to "level 3" for the purpose of implementing the Bureau of Prisons regulations.
As a result of this change, outgoing general correspondence may be sealed by the inmate, and is not subject to being read on a "routine" basis, but only where there is reason to believe that the particular item of correspondence would be threatening to the recipient or would facilitate criminal activity, or if the correspondence is between inmates. See July 25, 1983 affidavit of Z. Stephen Grzegorek, Regional Director, Northeast Region, Federal Bureau of Prisons ("Grzegorek aff.") P4; and see 28 C.F.R. § 540.13.
Prior to opening incoming general correspondence, Otisville officials are required, under 28 C.F.R. § 540.13, to obtain prisoners' permission to do so. Prisoners can choose not to sign a waiver form which permits authorized staff to open, inspect and read incoming general correspondence, but in doing so, they forfeit their right to receive their mail.
In response to this Court's suggestion, the General Counsel of the Bureau of Prisons, Claire Cripe, has proposed instructions for guiding the prison mail room staff in reading mail. The Mail Management Manual, which contains these instructions, "will be distributed to each administrative systems manager (who supervises those having responsibility for inspecting and reading inmate mail) and to each mail officer within the Bureau." See Affidavit of Claire Cripe, Appendix A hereto.
The Mail Management Manual proposed by the Bureau of Prisons will be distributed to prison personnel who handle mail and will be used in their training. This manual informs prison personnel of their duty to maintain the confidentiality of the correspondence they read. In instances where mail room staff read mail and determine that it may pose a threat to security, the manual instructs such personnel to disclose this information to the appropriate prison officials.
As previously noted, the redesignation of the security level at Otisville means that prisoners' outgoing mail is no longer subject to routine scrutiny. Since plaintiff has sought only injunctive relief with respect ...