PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANK ERVIN ALTIZER, JR.,
Plaintiff-Appellee,
v.
GEORGE DEEDS,
Defendant-Appellant,
No. 97-7111
and
RICHARD FLEMING; SERGEANT
MINTON,
Defendants,
STEVEN H. GOLDBLATT,
Amicus Curiae.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-96-68-R)
Argued: March 2, 1999
Decided: September 7, 1999
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Reversed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Widener joined. Judge Michael wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Pamela Anne Sargent, Assistant Attorney General, Crimi-
nal Law Division, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellant. Ashley N. Bailey, Student Counsel,
Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW
CENTER, Washington, D.C., for Amicus Curiae. ON BRIEF: Mark
L. Earley, Attorney General, Criminal Law Division, OFFICE OF
THE ATTORNEY GENERAL, Richmond, Virginia, for Appellant.
Steven H. Goldblatt, Director, Christopher M. Anzidei, Student Coun-
sel, Jeremy G. Suiter, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,
for Amicus Curiae.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
George Deeds, warden of the Keen Mountain Correctional Center
(KMCC), appeals, through the Attorney General for the Common-
wealth of Virginia, the district court's order granting Frank Altizer,
a Virginia prisoner, partial summary judgment in Altizer's 42
U.S.C.A. § 1983 (West Supp. 1999) action alleging interference with
his outgoing mail. The district court held that Warden Deeds's prac-
tice of routinely opening and inspecting outgoing mail for contraband
without any particularized suspicion, from sometime in 1994 until
January 1996, violated Altizer's free speech rights under the First
Amendment. On appeal, we conclude that Warden Deeds's practice
of opening and inspecting Altizer's outgoing mail was reasonably
related to legitimate penological interests, and, therefore, constitu-
tional. Accordingly, we reverse.
I.
Altizer, a Virginia inmate and one of this Court's most frequent filers,1
_________________________________________________________________
1 Since 1973, when he was sentenced to two life terms for the abduc-
tion and rape of an eleven-year-old girl, Altizer has filed at least 107
2
filed suit against Warden Deeds pursuant to 42 U.S.C.A. § 1983
(West Supp. 1999). In his rambling pro se complaint Altizer alleged,
among other things, that Warden Deeds violated his constitutional
rights by ordering prison officials to open and inspect his outgoing
mail -- one piece of which contained a homemade knife -- for con-
traband. Altizer sought injunctive and monetary relief.
Warden Deeds filed an answer, a motion to dismiss, a motion to
strike, a motion for sanctions, and a supplemental motion to dismiss.
The district court notified Altizer of the motion to dismiss pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Altizer
responded by filing two short briefs. After reviewing the record, the
district court granted Warden Deeds's motion to dismiss in part and
denied it in part. The district court also denied Warden Deeds's other
motions.
In so ruling, the district court -- after initially describing the com-
plaint as "nonsensical" -- charitably construed Altizer's complaint as
raising the following allegation:
On January 7, 1996, Altizer was informed that any legal
mail he addressed to "a clerk of court, two (2) state assistant
attorneys general, and one attorney had to be opened,
inspected and read, before it would be delivered" to the
KMCC mailroom for processing. This policy was imple-
mented by [Warden] Deeds only as to Altizer and inmates
for whom he had provided legal assistance, in retaliation for
Altizer's activities as a "writ writer" and for his prosecution
of Altizer v. Angelone, Civil Action No. 96-0003-R.2
_________________________________________________________________
unmeritorious lawsuits in federal and state court. In fact, Altizer had at
least seven lawsuits dismissed as frivolous in the six-month period
directly preceding the filing of the instant suit. In an interview with the
Roanoke Times & World-News, Altizer referred to his penchant for filing
lawsuits as "part of the game," and stated that he had no plans to quit fil-
ing lawsuits while incarcerated. See Michael Stowe, Prisoners Making
the Most of Their Right to File Suit, Roanoke Times & World-News,
Dec. 27, 1994, at A1.
2 Civil Action 96-0003-R was filed in federal district court on January
3, 1996, and immediately dismissed as frivolous pursuant to 28 U.S.C.A.
3
(J.A. at 145 (construing Complaint ¶¶ 1-5, 7-9, & 15).)3 The district
court concluded that this allegation, construed in the light most favor-
able to Altizer, possibly stated violations of the Equal Protection
Clause and the First Amendment. Moreover, the district court con-
cluded that Warden Deeds was not entitled to qualified immunity and
that Altizer's suit was not barred by the "three strikes" provisions of
28 U.S.C.A. § 1915(g) (West Supp. 1999).
_________________________________________________________________
§ 1915(d) (recodified at 28 U.S.C.A. § 1915(e) (West Supp. 1999)) (pro-
viding for the dismissal of a complaint filed in forma pauperis that "is
frivolous or malicious"). In that complaint, Altizer alleged that officials
of the Virginia Department of Corrections had violated his constitutional
rights by not delivering the mail on Saturdays. Apparently Altizer
believed that he had a federally protected liberty interest in receiving
mail within twenty-four hours after its delivery by the postal service to
the prison. Not surprisingly, Altizer's complaint was dismissed by the
district court under § 1915(d) as frivolous. See generally Neitzke v.
Williams, 490 U.S. 319, 327 (1989) (holding that a complaint filed in
forma pauperis may be dismissed under § 1915(d) if it is based upon an
"indisputably meritless legal theory" or "clearly baseless" factual conten-
tions). Because the action was dismissed pursuant to§ 1915(d), the com-
plaint was never served on Warden Deeds.
3 The district court construed Altizer's rambling complaint to raise sev-
eral additional claims, all of which were dismissed for either failing to
state a claim upon which relief could be granted, lack of standing, or
being utterly frivolous. Altizer, among other things, complained of a
criminal conspiracy against him. The alleged conspiracy consisted of
several district court judges, a federal magistrate judge, the district court
clerk, several deputy clerks and law clerks, state clerks of court, and
every attorney licensed to practice law in the Commonwealth of Vir-
ginia. Altizer also complained that he was not allowed to provide assis-
tance to Ronnie Dean Jones in the prosecution of his lawsuits. According
to Altizer, he "is possessed of the moral obligation to provide assistance
to Mr. Jones [because it] is an indispensable tenet of [his] [C]hristian
faith . . . to provide assistance to those unable to defend themselves
against the presumptively egregious heathen operation of government."
(J.A. at 51.) Because Altizer failed to file a cross-appeal, these additional
claims are not before us. See El Paso Natural Gas Co. v. Neztsosie, 119
S. Ct. 1430, 1434-35 (1999) (noting well-established rule that court of
appeals may not take up the unappealed portions of a district court's
order).
4
After a lengthy period of discovery, the parties filed cross motions
for summary judgment.4 On June 13, 1997, the district court granted
both motions in part and denied both motions in part. Of particular
importance here, the district court granted summary judgment for
Altizer in part, finding that Warden Deeds had violated Altizer's First
Amendment right to freedom of speech by opening and inspecting
every piece of his outgoing mail.5 Because Altizer had alleged no fac-
tual basis for compensatory or punitive damages, however, the district
court awarded him only $1.00 in nominal damages. 6
Both parties filed motions for reconsideration. In Warden Deeds's
motion, he once again argued that Altizer's suit was barred by the
"three strikes" provisions of § 1915(g). In support, Warden Deeds
submitted records of Altizer's prior litigious history reflecting that
Altizer had far more than three actions dismissed as frivolous by the
district court alone. The district court had previously found the "three
strikes" provision inapplicable because Altizer filed his action on Jan-
uary 23, 1996, approximately three months before the effective date
of the Prison Litigation Reform Act (PLRA), which amended
§ 1915(g). In its opinion on reconsideration, the district court noted
_________________________________________________________________
4 Altizer filed a document entitled "Reply and Memorandum for Sum-
mary Judgment." (J.A. at 388.) Although Altizer subsequently indicated
that he was only replying to Warden Deeds's motion for summary judg-
ment, the district court construed the filing as a summary judgment
motion on Altizer's behalf.
5 The district court granted Warden Deeds summary judgment in part,
finding that Altizer failed to allege facts that would permit either an
equal protection or retaliation claim to go forward. Altizer did not cross-
appeal this ruling.
6 Despite finding that Warden Deeds had violated Altizer's First
Amendment right to freedom of speech, the district court denied
Altizer's motion for injunctive relief on the ground that his subsequent
transfer from KMCC to Greensville Correctional Center rendered his
request for such relief moot. See, e.g., Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991) (holding that prisoner's transfer to another facility
mooted his claims for declaratory and injunctive relief); Taylor v.
Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (holding that prisoner's
transfer from protective custody to the general prison population mooted
a request for declaratory and injunctive relief). Altizer did not cross-
appeal this ruling.
5
that Warden Deeds provided no retroactivity "analysis" in his motion
to dismiss, and could not raise specific supporting arguments in sup-
port of a motion for relief from judgment. Subsequently, however, the
district court granted Warden Deeds's motion for stay of its order
pending a decision by this Court on Warden Deeds's appeal.
On appeal, Warden Deeds vigorously pursues the district court's
failure to apply the PLRA's "three strikes" provision to Altizer's com-
plaint. In addition, Warden Deeds argues that the district court erred
in holding that the First Amendment bars prison officials from open-
ing and inspecting an inmate's outgoing mail. In the alternative, War-
den Deeds contends that such a right was not clearly established and
that, as a result, he was entitled to qualified immunity. Warden Deeds
also argues that the district court erred in awarding Altizer $1.00 in
damages because Altizer failed to demonstrate that the mail allegedly
interfered with was his own. Finally, Warden Deeds argues that the
district court granted summary judgment to Altizer in large part due
to pleadings and other documents that Altizer failed to serve on coun-
sel for Warden Deeds in direct violation of Rule 5(a) of the Federal
Rules of Civil Procedure. We address these claims in turn.7
_________________________________________________________________
7 This Court appointed the Georgetown University Law Center Appel-
late Litigation Program to represent Altizer on appeal. Altizer, however,
directed his court-appointed counsel to cease representing him. Although
we granted the motion of Altizer's counsel to withdraw from further rep-
resentation, we also granted the Appellate Litigation Program leave to
file its brief as amicus curiae. Indeed, because of the significant legal
questions presented in Warden Deeds's appeal, we granted Amicus leave
to file a brief in conformity with the rules governing appellees, leave to
file a supplemental appendix, and leave to participate in oral argument.
See Fed. R. App. P. 29(d), (g). We recognize, of course, that an appellee
need not file a brief on appeal. See Fed. R. App. P. 31(c) (providing that
the only consequence of an appellee's failure to file a brief is that the
appellee "will not be heard at oral argument unless the court grants per-
mission"). Nevertheless, we are benefitted by an adversary presentation
of the issues raised by an appellant. As a result, federal courts have fre-
quently appointed amici to participate in an appeal where a party will not
brief an important position. See, e.g., Bousley v. United States, 118 S. Ct.
1604, 1609 (1998) (inviting private party to file an amicus brief and to
participate in oral argument when the Government declined to defend
ruling in its favor); Bob Jones Univ. v. United States, 461 U.S. 574, 585
6
II.
On appeal, we must first consider whether the "three strikes" provi-
sion of the PLRA applies retroactively to a prison litigant who filed
his § 1983 action before the PLRA's effective date. Altizer filed the
§ 1983 action forming the basis for this appeal on January 23, 1996,
prior to the enactment of the PLRA. In accordance with pre-PLRA
law, a magistrate judge granted Altizer's request to proceed in forma
pauperis (IFP) on April 22, 1996.8 Under pre-PLRA law, a prisoner
granted IFP status did not have to pay any filing fees when bringing
a § 1983 action.
On April 26, 1996, the PLRA was enacted into law. Section 804
of the PLRA amended 28 U.S.C.A. § 1915. As a result, prisoners pro-
ceeding IFP are now required to pay the full filing fee. IFP status sim-
ply allows a prisoner to pay the filing fee in installments. See 28
U.S.C.A. § 1915(b) (West Supp. 1999). Further,§ 804 of the PLRA
created a new subsection (g), which reads as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section
if the prisoner has, on 3 or more prior occasions, while
_________________________________________________________________
n.9, 599 n.24 (1983) (same); United States v. Dickerson, 166 F.3d 667,
680 n.14 (4th Cir. 1999) (granting the Washington Legal Foundation and
the Safe Streets Coalition leave to file an amicus brief and to participate
in oral argument in light of the Government's unwillingness to defend
the constitutionality of 18 U.S.C.A. § 3501 (West 1985)); McKinney v.
Indiana Michigan Power Co., 113 F.3d 770, 772 n.2 (7th Cir. 1997)
(appointing amicus "so that [the court] might have the benefit of an
adversary presentation of the issues raised by the appeal"); United States
v. Chagra, 701 F.2d 354, 366 (5th Cir. 1983) (appointing amicus "[t]o
ensure that this appeal continues to be presented in an adversary con-
text"). We thank Amicus for its participation.
8 Altizer was unable to contain his disdain for the judicial system while
applying for IFP status. When specifically asked to identify the source
of any money received during the preceding twelve months, Altizer
informed the district court that he had received $20.00 from "an
acquaintance," but that "any identity beyond that is none of your busi-
ness." (J.A. at 23.)
7
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.
28 U.S.C.A. § 1915(g).
On May 6, 1996, Warden Deeds filed a motion to dismiss on the
grounds that Altizer's suit was barred by the "three strikes" provision
of § 1915(g). With the motion to dismiss, Warden Deeds attached the
final orders from the last seven cases filed by Altizer -- all of which
were filed within the six months preceding the instant case -- show-
ing that all seven were dismissed as frivolous by the district court. In
fact, there is evidence that Altizer has filed at least 107 unmeritorious
lawsuits in federal and state court since he was incarcerated.9
On August 26, 1996, the district court denied Warden Deeds's
motion to dismiss. In particular, the district court found the "three
strikes" provision inapplicable because Altizer filed his action on Jan-
uary 23, 1996, approximately three months before the effective date
of the PLRA. On June 23, 1997, Warden Deeds moved the district
court to reconsider its "three strikes" ruling. In its opinion denying
Warden Deeds's motion for reconsideration, the district court noted
that Warden Deeds had provided no retroactivity"analysis" in his
motion to dismiss.
All five Circuit Courts of Appeals that have addressed whether
actions that have been dismissed as frivolous prior to the effective
date of the PLRA count toward an inmate's three strikes have
answered the question affirmatively. See Tierney v. Kupers, 128 F.3d
_________________________________________________________________
9 As the frequent filer of frivolous lawsuits, Altizer appears to be the
precise type of inmate that Congress had in mind when it passed the
PLRA. That the district court -- after charitably construing Altizer's
rambling complaint to state a claim upon which relief could be granted
-- found a meritorious claim in this case does not, as Amicus suggests,
reveal the unfairness of the PLRA's "three strikes" provision. Just
because a broken clock is right twice a day does not mean that it should
go unrepaired.
8
1310, 1312 (9th Cir. 1997); Keener v. Pennsylvania Bd. of Probation
& Parole, 128 F.3d 143, 144 (3d Cir. 1997); Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996); Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996); Green v. Nottingham , 90 F.3d 415, 419-
20 (10th Cir. 1996). Only two of these courts, however, directly
addressed whether the three strikes provision could be applied to a lit-
igant who filed his civil action before the effective date of the PLRA.
The Fifth Circuit barred such an action in Adepegba, while the Sev-
enth Circuit allowed the action to proceed in Abdul-Wadood.10 Thus,
while all of our sister circuits agree that § 1915(g) counts lawsuits dis-
missed as frivolous prior to the effective date of the PLRA as
"strikes," the circuits are split as to whether the "three strikes" provi-
sion applies to a lawsuit filed prior to the effective date of the statute.
The question of whether to apply a new statute to a case pending
on its effective date is governed by the Supreme Court's opinion in
Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf estab-
lished a two-part test to determine whether the statute should apply
retroactively. First, the court should determine"whether Congress has
expressly prescribed the statute's proper reach." Id. at 280. If it has,
the court must respect the stated will of Congress. See id. Second, in
instances where the statute does not contain an express effective date,
the court must determine whether the statute would"impair rights a
party possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions already
completed." Id. If it does, the court should not apply the statute to the
pending case. See id.
Applying the Landgraf analysis here, we first note that Congress
failed to specify an effective date for § 804 of the PLRA. Cf. Martin
v. Hadix, 119 S. Ct. 1998, 2004-05 (1999) (noting that Congress
failed to specify an effective date for § 803 of the PLRA). As a result,
this Court must apply the default rule that the PLRA became effective
_________________________________________________________________
10 Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996), dealt with a
mandamus petition filed after the effective date of the statute. In Tierney
v. Kupers, 128 F.3d 1310 (9th Cir. 1997), the litigant filed his actions
after the effective date, and in Keener v. Pennsylvania Bd. of Probation
& Parole, 128 F.3d 143 (3d Cir. 1997), the court did not state when the
litigant's action was filed.
9
on the day it was enacted into law, see 2 Norman J. Singer,
Sutherland Statutory Construction, § 33.06 at 12 (5th ed. 1993), and
proceed to the second step in the Landgraf analysis.
It is not readily apparent that applying the provisions of § 1915(g)
in this case would run afoul of the second step of Landgraf, however.
As the Fifth Circuit has noted, there is no absolute"right" to IFP sta-
tus. See Startti v. United States, 415 F.2d 1115, 1116 (5th Cir. 1969).
Furthermore, every limitation of a privilege does not count as a liabil-
ity or a duty. Section 1915(g) arguably governs procedure, and it does
little more than apply the same rules to prisoners that apply to every-
one else who brings an action or appeal. It is well settled that
"[c]hanges in procedural rules may often be applied in suits arising
before their enactment without raising concerns about retroactivity."
Landgraf, 511 U.S. at 275. The Supreme Court has long held that,
because rules of procedure govern secondary conduct rather than pri-
mary conduct, applying such rules to cases pending on their effective
date does not necessarily violate the presumption against retroactivity.
See id. (citing McBurney v. Carson, 99 U.S. 567, 569 (1878)). But see
Martin, 119 S. Ct. at 2006-07 (holding that the PLRA's new attor-
neys' fees provision, although governing secondary conduct, could
not be applied retroactively). As a result, the Supreme Court has
upheld procedural changes even where they work to the disadvantage
of defendants in pending cases. See Landgraf, 511 U.S. at 275 n.28
(citing Dobbert v. Florida, 432 U.S. 282, 293-94 (1977); Collins v.
Youngblood, 497 U.S. 37 (1990); Beazell v. Ohio, 269 U.S. 167
(1925)).11
_________________________________________________________________
11 According to the Fifth Circuit:
Section 1915 is a procedural statute governing the process by
which indigent individuals, including prisoners, bring civil
actions or appeals in the federal courts. Before amendment,
§ 1915 allowed qualifying prisoners to bring an action or appeal
without prepaying court fees, which are normally in excess of
$100. See 28 U.S.C. § 1913 note (Judicial Conference Schedule
of Fees). The amended provisions of section 1915(b) allow qual-
ifying individuals to pay the filing fee in installments over time.
28 U.S.C. § 1915(b), as amended. Although section 1915(g)
attaches consequences to past actions, we find that these conse-
quences are matters of procedure. Section 1915(g) does not
10
Prior to hearing arguments in this case, however, a panel of this
Court decided Church v. Attorney Gen., 125 F.3d 210 (4th Cir. 1997).
In Church, this Court held that the filing fee provisions codified at
§ 1915(b)(1) did not apply in a case where the prisoner had already
filed his action and appeal before the effective date of the PLRA. See
id. at 215. Although this Court did not address the retroactivity of
§ 1915(g)'s "three strikes" provision, the Court in Church did specifi-
cally hold that requiring a prisoner to pay a filing fee that he was not
required to pay when he filed his appeal impaired that prisoner's
rights, and, therefore, had an impermissibly retroactive effect. See id.
at 213. Moreover, the panel in Church specifically held that the impo-
sition of a new filing fee requirement was not simply a procedural
alteration. See id.
Warden Deeds concedes, as he must, that retroactive application of
the "three strikes" provision in this case would require Altizer to pay
a filing fee that he was not required to pay when he filed his appeal.
Such an application, we are constrained to hold, would be inconsistent
with this Court's prior holding in Church. Indeed, even Warden
Deeds concedes that the reasoning in Church, which he describes as
plainly incorrect, is directly contrary to his position on appeal. Cf.
Martin, 119 S. Ct. at 2007 (holding that the PLRA's limitation on
attorneys' fees may not be applied to services performed prior to the
PLRA's enactment). Not seeing any principled way to distinguish the
two cases, we conclude that the panel is bound by this Court's deci-
sion in Church. See Industrial Turnaround Corp. v. NLRB, 115 F.3d
248, 254 (4th Cir. 1997) (noting that a decision of this Court is bind-
ing on other panels unless it is overruled by a subsequent en banc
opinion of the Court or an intervening decision of the United States
Supreme Court). Accordingly, the district court did not err in deter-
_________________________________________________________________
affect a prisoner's substantive rights, and it does not block his or
her access to the courts. A prisoner may still pursue any claim
after three qualifying dismissals, but he or she must do so with-
out the aid of the [IFP] procedures. We therefore find that appli-
cation of this procedural rule to pending appeals does not raise
the retroactivity concerns discussed in Landgraf .
Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996).
11
mining that Altizer's suit was not barred by the"three strikes" provi-
sion of § 1915(g).
III.
Next, Warden Deeds argues that the district court erred in holding
that the First Amendment bars prison officials from routinely inspect-
ing an inmate's outgoing mail for contraband. In the alternative,
Deeds contends that the district court has, in effect, created a new rule
of constitutional law: There exists an absolute First Amendment pro-
hibition against routinely opening and/or inspecting inmates' outgo-
ing mail. As such, Deeds argues that he is entitled to qualified
immunity. Accordingly, Warden Deeds contends that the district court
erred in granting summary judgment to Altizer.
We review de novo the district court's decision to grant Altizer
summary judgment. See Halperin v. Abacus Tech. Corp., 128 F.3d
191, 196 (4th Cir. 1997). Summary judgment is appropriate only "if
the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genu-
ine issue as to any material fact." Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a
genuine issue of material fact, the evidence of the nonmoving party
is to be believed and all justifiable inferences must be drawn in his
favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
With these principles in mind, we address the district court's First
Amendment ruling.
Altizer's complaint is a rambling narrative that fails to set forth any
individual claims. As a result, the district court construed the com-
plaint to raise several specific claims. Among those claims was the
following:
From September 1994 until January 1996, Deeds knew of
and sanctioned the policy requiring security officers to open,
inspect and read all of Altizer's outgoing mail, in violation
of the First Amendment.
(J.A. at 328.) Finding that outgoing mail implicates fewer security
12
concerns than incoming mail, the district court concluded that the
standard established in Procunier v. Martinez , 416 U.S. 396 (1974),
should apply to every prison policy affecting outgoing prisoner mail.12
Under that standard, the district court held that Warden Deeds's prac-
tice of opening and inspecting each outgoing letter from every inmate
did not further an important or substantial governmental interest, and,
therefore, violated the First Amendment. For the reasons that follow,
we conclude that the district court applied the incorrect standard.
There is little doubt that the opening and inspecting of an individu-
al's mail by a governmental entity would raise grave First Amend-
ment concerns outside the prison context. However, it is well
established that a prison rule that impinges on an inmate's constitu-
tional rights is valid "if it is reasonably related to legitimate penologi-
cal interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Without
question, the opening and inspecting of an inmate's outgoing mail is
reasonably related to legitimate penological interests, and, therefore,
constitutional, and the cases cited by the district court are not to the
contrary.
Martinez, as well as the other case cited by the district court, see
Thornburgh v. Abbott, 490 U.S. 401 (1989), involved the "censor-
ship" of inmate mail, not the "inspection" of inmate mail. Specifi-
cally, the Supreme Court in Martinez struck down a California
regulation concerning personal correspondence between inmates and
non-inmates; regulations that provided for censorship of letters that
"unduly complain," "magnify grievances," or "expres[s] inflammatory
political, racial, religious or other views or beliefs." 416 U.S. at 399.
_________________________________________________________________
12 The Supreme Court reviewed the prison regulations at issue in
Martinez under the following standard:
First, the regulation or practice in question must further an
important or substantial governmental interest unrelated to the
suppression of expression. Prison officials . . . must show that a
regulation authorizing mail censorship furthers one or more of
the substantial governmental interests of security, order, and
rehabilitation. Second, the limitation of First Amendment free-
doms must be no greater than is necessary or essential to the pro-
tection of the particular governmental interest involved.
Procunier v. Martinez, 416 U.S. 396, 413 (1974).
13
Under the standard established in Martinez, and applied by the district
court in the instant case, the Supreme Court determined that the regu-
lations in question were not essential to the protection of an important
or substantial governmental interest.
Nevertheless, the Supreme Court in Martinez specifically held that
the censorship of certain materials was essential to the protection of
substantial governmental interests. For example, the Supreme Court
specifically noted that personal correspondence that included the fol-
lowing kinds of material could be censored: (1) that which might vio-
late postal regulations, e.g., threats, blackmail, or contraband; (2) that
which indicates a plot to escape; (3) that which discusses criminal
activities; (4) that which indicates that the inmate is running a busi-
ness while he is in confinement; or (5) that which contains codes or
other obvious attempts to circumvent legitimate prison regulations.
See id. at 414 n.14.
Implicit in the Supreme Court's ruling in Martinez -- that some
kinds of outgoing mail may be censored -- is that inmates' outgoing
mail may be opened and inspected by prison officials. Otherwise, a
prison official would never know that a letter contained the very type
of material that, according to the Supreme Court, could rightfully be
censored, i.e., correspondence sent by an inmate that would be detri-
mental to the security, good order, or discipline of the institution; nec-
essary for the protection of the public; or used to facilitate criminal
activity. Indeed, the Supreme Court noted as much in Wolff v.
McDonnell, 418 U.S. 539 (1974), when it pointed out that "freedom
from censorship is not equivalent to freedom from inspection or
perusal." Id. at 576. Accordingly, we believe that the district court
should have used a standard more deferential to the judgment of
prison authorities than the standard contained in Martinez. Specifi-
cally, we hold that the proper inquiry in this case is whether Warden
Deeds's decision to open and inspect Altizer's outgoing mail was
"reasonably related to legitimate penological interests." Turner, 482
U.S. 78 (1987).
We are reassured in our conclusion -- that the more deferential
Turner standard should apply here -- by the Supreme Court's deci-
sion in Thornburgh, 490 U.S. 401. In Thornburgh, the Supreme Court
declined to extend the Martinez standard of review to regulations
14
dealing with the censorship of incoming mail. See id. at 404. Rather,
the Supreme Court determined that the regulations in question should
be reviewed under the Turner standard. See id. Of particular impor-
tance here, the Supreme Court limited the Martinez standard to the
facts of that case, i.e., regulations concerning the censorship of outgo-
ing personal correspondence from prisoners. See id. at 413.13
Because there is a substantial governmental interest in censoring
certain materials from an inmate's outgoing mail, e.g., materials detri-
mental to the security, good order, and discipline of the institution, or
_________________________________________________________________
13 The dissent complains that our refusal to apply the Martinez standard
in this case is "unprecedented." Post at 18. With all due respect to our
dissenting colleague, extending the Martinez standard beyond the facts
of that case would be unprecedented. Since deciding Martinez, the
Supreme Court has adopted a different standard for reviewing constitu-
tional rights in the prison context. See Turner v. Safley, 482 U.S. 78, 89
(1987). Indeed, since Turner, every Supreme Court decison involving
"prisoner rights" has applied the Turner standard of review, which
focuses on the reasonableness of the prison official's actions; not one
Supreme Court decision has applied the Martinez standard, which
focuses on whether the prison offical's actions were necessary to further
a substantial governmental interest, i.e., strict scrutiny. Thus, rather than
applying strict scrutiny to Warden Deeds's actions, as the dissent urges,
the relevant inquiry is simply whether Warden Deeds's actions were
"reasonably related to legitimate penological interests." Id. at 89.
The dissent also complains that Abbott's clear language does not limit
Martinez to the context of cases involving censorship of outgoing mail.
Post at n.2. However, when taken as a whole, Abbott could not have been
clearer in its repudiation of Martinez outside of that context. The dissent
attempts to bolster its claim that Martinez is not limited to the censorship
of outgoing mail by quoting from a portion of the following sentence
from Abbott: "[W]e acknowledge today that the logic of our analyses in
Martinez and Turner requires that Martinez be limited to regulations con-
cerning outgoing correspondence." Abbott, 490 U.S. at 413. The dissent
does not mention that the Court, in its discussion of the facts of Martinez,
makes it absolutely clear what kind of regulations were at issue in
Martinez: "regulations that provided for the censorship of letters." Id. at
408 (emphasis added). Whatever remains of Martinez after Abbott con-
cerns only the censorship of outgoing mail. Actions such as inspecting
Altizer's outgoing mail and removing a homemade knife from it do not
constitute impermissible censorship.
15
dangerous to the public, there is a fortiori a legitimate penological
interest in opening and inspecting an inmate's outgoing mail for such
material. Thus, although an inmate's First Amendment rights may be
violated when his outgoing mail is censored, his First Amendment
rights are not violated when his outgoing mail is simply opened and
inspected for, among other things, contraband, as was the case here.14
Indeed, the obvious need to inspect Altizer's outgoing mail is under-
scored by his attempt -- during the pendency of this very case -- to
mail a homemade knife to the Deputy Clerk of the United States Dis-
trict Court for the Western District of Virginia. Because the opening
and inspecting of Altizer's outgoing mail was reasonably related to a
legitimate penological interest,15 the district court erred in finding that
Altizer's First Amendment rights were violated. 16
_________________________________________________________________
14 Inspecting an inmate's legal mail may implicate the inmate's Sixth
Amendment right to communicate freely with his attorney in a criminal
case. See Wolff v. McDonnell, 418 U.S. 539, 575 (1974). As the district
court noted, however, Altizer has not alleged that he was communicating
with an attorney concerning any pending criminal matters.
15 We note that the contrary holding -- that the opening and inspecting
of an inmate's outgoing mail is not reasonably related to legitimate peno-
logical interests -- would have far-reaching consequences. In light of the
Supreme Court's recognition that prison officials must be able to reject
correspondence sent by an inmate that would be detrimental to the secur-
ity, good order, or discipline of the institution; necessary for the protec-
tion of the public; or used to facilitate criminal activity, the Federal
Bureau of Prisons has been given the authority to read and inspect the
outgoing mail of every inmate residing in a medium or high security
prison. See 28 C.F.R. § 540.14(c)(2) (1998) (noting that all outgoing mail
"may be read and inspected by staff"). Thus, if the district court were to
be affirmed, not only would we be finding Warden Deeds's actions to be
unconstitutional, but we would necessarily be finding the actions of
every federal prison within our jurisdiction in the Fourth Circuit to be
unconstitutional. Aware of this possibility, the dissent simply suggests
that the opening and inspecting of outgoing mail in federal prison is con-
stitutional because of 28 C.F.R. § 540.14. See post at 20 n.3. We find it
difficult to believe that the mere absence of a similar policy at KMCC
rendered Warden Deeds's actions unconstitutional or, for that matter,
that the enactment of a similar policy could protect unconstitutional con-
duct.
16 Having concluded that Warden Deeds's practice of routinely opening
and inspecting outgoing mail for contraband was reasonably related to a
16
IV.
For the foregoing reasons, the decision of the district court is
reversed.
REVERSED
MICHAEL, Circuit Judge, dissenting:
While I agree with the majority's conclusion that Altizer's suit was
not barred by 28 U.S.C. § 1915(g), I respectfully dissent from its
holding that the opening and inspection of outgoing prisoner mail
automatically passes constitutional muster.1
In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme Court
considered the constitutionality of regulations governing incoming
and outgoing prisoner mail. The Court held that in order to pass mus-
ter under the First Amendment, prison mail regulations "must further
an important or substantial governmental interest." Id. at 413. "Secur-
ity, order, and rehabilitation" are the only three governmental interests
that were recognized as "substantial." Id . The scope of this holding
was subsequently limited by the Supreme Court in Thornburgh v.
Abbott, 490 U.S. 401 (1989). In that case the Court carefully drew a
distinction between incoming and outgoing prisoner mail, concluding
that a lower level of scrutiny should be applied in reviewing prison
regulations governing incoming mail. Regulations governing incom-
ing mail are valid if they are "reasonably related to legitimate peno-
logical interests." Id. at 413 (quoting Turner v. Safley, 482 U.S. 78,
89 (1987)). The Abbott Court ruled that"Martinez [would] be limited
to regulations concerning outgoing correspondence." Id. This contin-
_________________________________________________________________
legitimate penological interest, and, therefore, constitutional, we have no
reason to consider Warden Deeds's additional assignments of error, i.e.,
that he is entitled to qualified immunity, that the district court erred in
awarding Altizer $1.00 in damages, and that Altizer failed to serve coun-
sel for Warden Deeds with certain pleadings in violation of Rule 5(a) of
the Federal Rules of Civil Procedure.
1 I accept the majority's conclusion on these facts that Altizer's Sixth
Amendment right to counsel was not implicated by the opening and
inspection of his outgoing legal mail. See ante at n.14.
17
ued heightened scrutiny for the regulation of outgoing mail is justified
by the "categorically lesser" implications this mail has for prison
security. See id.
The majority today substantially alters this prescription. It does so
by limiting the heightened scrutiny required by Martinez only to cases
involving censorship of the contents of outgoing prisoner mail. This
additional limitation on Martinez is unprecedented. The majority also
ignores the broader language of Abbott, which says that Martinez con-
tinues to apply to "regulations concerning outgoing correspondence."
Abbott, 490 U.S. at 413. The Martinez standard therefore governs the
treatment of outgoing mail in this case. As a result, the warden should
be required to show that the practice of opening and inspecting all
outgoing mail furthered "an important or substantial governmental
interest," namely, security, order, or rehabilitation. See Martinez, 416
U.S. at 413.2
Altizer has been incarcerated at the Keen Mountain Correctional
Center, an "adult institution" operated by the Commonwealth of Vir-
ginia's Department of Corrections (VDOC). Since June 1990 the
VDOC has had a written policy or procedure governing the inspection
of prisoner mail at adult institutions. Under that policy, an inmate's
outgoing legal mail "will not be opened, inspected or read in any
manner." An exception permits the reading of outgoing prisoner mail
if "there is reasonable belief that the mail is being used in violation
of State or Federal law or for purposes which threaten the security of
the facility." This policy was violated for a time at Keen Mountain,
where officers opened and inspected every piece of the inmates' out-
going legal mail. The initiation date of the blanket"open and inspect"
_________________________________________________________________
2 Unless censorship of outgoing personal mail is involved, the majority
contends that the Turner standard now governs the review of "constitu-
tional rights in the prison context." Ante at n.13. That extends Turner too
far because Abbott, which was decided two years after Turner, preserves
more of Martinez than the majority is willing to recognize. In Abbott the
Supreme Court analyzed Martinez and Turner at length and noted that
Martinez (with its heightened standard of scrutiny) would continue to
apply "to regulations concerning [the] outgoing correspondence" of pris-
oners. Abbott, 490 U.S. at 413. Abbott's language is clear: it does not
limit Martinez to cases involving censorship of content.
18
practice is unknown, but it went on from at least 1994 until January
1996. The district court concluded that the practice affected Altizer,
who was sending out legal mail during this time and who filed several
grievances complaining about the inspection of his outgoing legal
mail. The practice of opening and inspecting all outgoing legal mail
at Keen Mountain has been changed to conform to VDOC policy.
Outgoing legal mail is now opened only when prison staff suspect
that it contains contraband.
The question in this case is whether the warden offered a "substan-
tial governmental interest" concerning security or prison order to jus-
tify the practice of opening and inspecting every piece of outgoing
legal mail. The district court considered this question carefully and
reached the following conclusions: (1) the warden did "not attempt to
defend" the practice of opening and inspecting every piece of the
inmates' outgoing legal mail; (2) he did "not identify any important
and substantial administrative interest of the prison which was fur-
thered" by the practice; (3) he did not show that the practice "was
generally necessary for prison security reasons;" and (4) he did "not
offer[ ] any justification" at all for the practice of opening and inspect-
ing "every letter from every inmate." The district court's conclusions
are supported by the fact that the blanket "open and inspect" practice
has been discontinued at Keen Mountain and the VDOC policy is
being followed. Again, under the VDOC policy outgoing legal mail
is inspected only when there are reasonable concerns about security
or unlawful conduct.
I, too, believe that security and order in prisons is of critical impor-
tance. Indeed, prison authorities are granted, as they must be, substan-
tial deference in this area. See, e.g., In re Long Term Administrative
Segregation of Inmates Designated as Five Percenters , 174 F.3d 464
(4th Cir. 1999) (finding no constitutional prohibition on long-term
segregation of members of purported religious group that was classi-
fied as a security threat), petition for cert. filed sub nom. Mickle v.
Moore, 68 U.S.L.W. 3080 (U.S. July 19, 1999) (No. 99-131). The
Supreme Court has determined, however, that the security interests in
regulating outgoing prisoner mail are "of a categorically lesser magni-
tude" than those for controlling the flow of materials into prison.
Abbott, 490 U.S. at 413. Although prison authorities may be justified
in opening outgoing prisoner mail in certain circumstances, the war-
19
den here failed to offer a "substantial governmental interest" for open-
ing all outgoing legal mail.3 I would therefore affirm the judgment of
the district court.
_________________________________________________________________
3 A formal policy authorizing blanket inspection of outgoing mail may
be appropriate for certain classes of prisoners or for certain types of insti-
tutions. For example, the Federal Bureau of Prisons has a policy allowing
inspection of outgoing general correspondence from inmates in medium
and high security facilities, see 28 C.F.R.§ 540.14(c)(2), although this
policy does not apply to legal mail, see 28 C.F.R. §§ 540.18(c)(1),
540.19. At any rate, a formal policy of this sort might have justified
inspections of Altizer's outgoing mail.
The Commonwealth advises us in its brief that after Altizer filed this
suit, he was caught trying to mail a homemade knife to a deputy clerk
of the district court for the Western District of Virginia. Appellants' Br.
at 35. That attempt was apparently foiled under the VDOC policy that
allows inspection of outgoing mail when prison authorities believe secur-
ity is threatened. My point here is that the prior blanket inspection prac-
tice at Keen Mountain cannot be sanctioned by us when the warden
himself did not offer any substantial justification for it in district court.
20