George Goff v. C. C. Nix

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________

No. 96-1009SI
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George Goff and Dudie J. Rose, *
*
Appellees, *
* On Appeal from the United
v. * States District Court
* for the Southern District
* of Iowa.
C. C. Nix and John Henry, *
*
Appellants. *

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Submitted: January 16, 1997

Filed: May 15, 1997
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Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.
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RICHARD S. ARNOLD, Chief Judge.

George Goff and Dudie Rose brought this 42 U.S.C. § 1983 action
against defendants for an injunction against the Iowa State Penitentiary’s
prohibition of legal correspondence between inmates in different prison
units. The District Court granted an injunction and ordered the defendants
to allow prisoners to send legal mail to inmates in other facilities. The
Court also ordered the defendants to ensure that legal documents would be
returned to their owner when held by a “jailhouse lawyer” who is
transferred to another facility. We affirm in part and reverse in part,
and vacate the injunction except to the extent that it requires the
defendants to provide for the return of legal documents to their owner.

I.

The Iowa State Penitentiary (ISP) includes several facilities of
varying security levels. Prisoners assigned to one such unit may be
transferred to another during the period of their incarceration. Prisoners
are generally not allowed to correspond with inmates in other units. ISP
has a written policy that allows inmates to send legal correspondence to
jailhouse lawyers within their unit, called the “red star system.” An
inmate who desires to send such mail notifies a prison officer, who
inspects the envelope and documents for contraband. The inmate then places
the documents in the envelope, seals it, and affixes a red star. The
officer then takes the envelope to be delivered to the other inmate along
with other legal mail from outside the prison. Until late 1988, ISP
allowed prisoners to send correspondence to inmates in other units by this
same procedure. A deputy warden noticed that the written policy did not
permit this practice, and circulated a memo prohibiting future inter-unit
legal correspondence.
The effect of the change in 1988 was two-fold. First, an inmate
could not continue to correspond with another inmate - whether a co-
plaintiff or his jailhouse lawyer - who was transferred to a different
unit. Second, transferred jailhouse lawyers could not return legal
documents they held to their owner. The latter effect occurs because
prisoner transfers at ISP typically happen with very short advance notice
to the inmate. The prisoner may either take legal documents (as personal
property) with him, or leave them behind. If he takes the documents, he
cannot return them to their owner, because the ISP policy prohibits inter-
unit mailings. If he leaves the documents, the prison will

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destroy them in the course of cleaning out the cell. There is,
consequently, no way for an inmate to return legal documents entrusted to
him to their owner.

George Goff and Dudie Rose act as jailhouse lawyers for their fellow
inmates, assisting them with various legal claims. Goff and Rose also have
acted as their own lawyers, and in 1990 brought a lawsuit to challenge the
conditions of confinement of the unit in which they both were housed.
Shortly after bringing the suit in January, Goff was transferred to ISP’s
main penitentiary. Rose was transferred in April to a different unit, and
transferred again in May to the main facility, in which Goff was already
housed. Although the two were unable to correspond during the period of
their separation, they were able to communicate again once they were
reunited in May. Other “clients” of theirs (from their original unit),
however, were no longer able to correspond with Goff or Rose after the
transfers.

Goff and Rose challenge ISP’s change to the more restrictive policy.
First, they claim that ISP’s prohibition on legal correspondence between
prisoners in different units prevents inmates from maintaining an attorney-
client relationship with a jailhouse lawyer who is transferred. Second,
Goff and Rose contend that ISP barred them, as co-plaintiffs, from
communicating with each other for a period, and thereby precluded them from
prosecuting their pending claim effectively. Finally, they challenge ISP’s
failure to provide a means by which jailhouse lawyers who possess a
client’s documents and are then transferred may return the documents to
their owner.
After conducting a bench trial, the District Court granted relief to
the plaintiffs on each of their claims, holding that the restrictions on
legal communications burdened inmates’ right of

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access to the courts under Bounds v. Smith, 430 U.S. 817 (1977), and that
the defendants had failed to demonstrate that the restrictions were
reasonably related to legitimate penological interests, as required by
Turner v. Safley, 482 U.S. 78 (1987). The Court ordered ISP to propose a
system that met constitutional requirements. The Court later held that the
proposals submitted by the defendants did not remedy the constitutional
violations, and it proceeded to order the reinstitution of essentially the
de facto policy - which allowed inter-unit correspondence - that was in
place before 1989. Defendants then took this appeal.

II.

Goff and Rose first argue that the defendants’ appeal should be
dismissed because it is time-barred. They contend that the 30-day time
limit within which to file a notice of appeal after the entry of the
District Court’s judgment, Fed. R. App. P. 4(a)(1), began to run on October
19, 1993, when the District Court entered its judgment for the plaintiffs
and ordered ISP to formulate a plan. Therefore, they contend, the
defendants’ Notice of Appeal filed on December 18, 1995, was untimely.
Defendants counter that the clock began running when the District Court
entered its permanent injunction ordering reinstatement of the red-star
system on November 20, 1995, and that their notice of appeal was therefore
timely. They argue in the alternative that even if the 1993 judgment was
final and appealable, they may challenge the merits of the 1993 judgment
in this appeal from the 1995 order.
This appeal is untimely only if the District Court’s 1993 decision -
which ordered only that ISP submit a plan to remedy the constitutional
flaws in its policy - was a final judgment, appealable to this Court under
28 U.S.C. § 1291. We believe that the District Court’s 1993 order was no
more final under § 1291 than

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the one at issue in Sherpell v. Humnoke School Dist., 814 F.2d 538 (8th
Cir. 1987), which held that a district court order to a school district to
submit a plan to remedy an unconstitutional atmosphere of racial hostility
was not an appealable final judgment. Id. at 539; see also Hendrickson v.
Griggs, 856 F.2d 1041, 1044 (8th Cir. 1988) (holding injunction ordering
prison to submit plan for reformation of unconstitutional prison conditions
not appealable as interlocutory order under 28 U.S.C. § 1292(a)(1)). The
November 1995 judgment is, therefore, the pertinent (and only final) one
for purposes of determining timeliness. As the notice of appeal from that
order was filed on time, we have jurisdiction.

III.

The District Court held ISP’s policy constitutionally defective in
three respects. First, the policy precludes co-plaintiffs confined to
different units from coordinating their case. Second, it prevents the
continuation of a jailhouse lawyer’s relationship with his client once one
or the other is transferred to a different unit. Finally, it precludes a
jailhouse lawyer from returning his client’s documents to him when one or
the other (or both) is transferred to another unit. The Court ordered ISP
to reinstate its pre-1989 policy that allowed inter-unit correspondence,
and to provide for the return of documents to their owner when their
holder/lawyer is transferred.
The defendants challenge Goff’s and Rose’s standing to bring their
claims on the basis of Lewis v. Casey, 116 S. Ct. 2174 (1996), a case
decided during the pendancy of this appeal. Lewis reminded us that the
Constitution requires a plaintiff to demonstrate actual injury in order to
have a federal court adjudicate a claim and allows no exception in prison-
conditions cases. Id. at 2180. It thus directed the judiciary to
scrutinize

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the standing of plaintiffs in prison-conditions litigation to ensure that
the plaintiffs have suffered injury and that the relief afforded does not
go beyond remedying that injury to change general conditions the court
finds disturbing. We discuss plaintiffs’ standing to assert each claim
together with our consideration of the merits of the underlying claim.

A.

The first component of relief the District Court ordered was for the
prison to allow communications between an inmate and his chosen jailhouse
lawyer, even after one is transfered to a new unit. A jailhouse lawyer has
no independent right to provide legal advice, see Gassler v. Rayl, 862 F.2d
706, 707-08 (8th Cir. 1988), but may assert the right on behalf of other
inmates who are otherwise unable to obtain access to the courts, Flittie
v. Solem, 827 F.2d 276, 280 (8th Cir. 1987). The essence of plaintiffs’
challenge is that their clients cannot continue their relationship with the
plaintiffs after a transfer. There was no finding, however, that the
client inmates were unable to find new jailhouse lawyers or other means
1
of gaining access to the courts. Consequently, Goff and Rose lack
standing to assert this claim because they suffered no injury themselves
and have not

1
Rose had asked Goff to assist him with his post-conviction
proceedings, and contends that he lost critical papers, thereby
prejudicing his pursuit of his case, when Goff was transferred.
But Rose had a court-appointed lawyer for these proceedings. He
cannot, therefore, challenge ISP’s policy prohibiting
communications between himself and Goff, because he had access
both to a lawyer and the courts. The deprivation of his papers
provides a separate basis for a claim, which we consider later.
Likewise, the District Court found that other inmates who lost
their papers when their lawyers were transfered had difficulty
obtaining new jailhouse lawyers because they had no papers, not
because other lawyers were unavailable.

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demonstrated injury to other inmates that they may assert on those inmates’
behalf. The claim is dismissed for lack of standing and the injunction
vacated accordingly.

B.

The next aspect of relief the District Court ordered was that ISP
allow co-plaintiffs in different units to communicate. Goff and Rose
sought relief in this case because the prison’s policy barred them from
corresponding during their challenge to prison overcrowding in another
case. The District Court granted a preliminary injunction that allowed
Goff and Rose to correspond. The defendants argue that the plaintiffs lack
standing to assert this claim because Goff and Rose suffered no actual
injury from the policy, as they had counsel assigned to them (although
counsel later moved successfully to be discharged on the basis of her
belief that the case was frivolous), and as they were not prejudiced by
their inability to communicate. The District Court found that the
prohibition on correspondence created substantial obstacles for inmates who
wished to litigate as co-plaintiffs. In particular, Goff and Rose were
unable to coordinate recruitment of witnesses for their upcoming trial.
Although Goff and Rose were ultimately unsuccessful in that case, the case
was decided on its merits after an evidentiary hearing and briefing. See
Rose v. Nix, No. 4-90-CV-70017 (S.D. Iowa, Dec. 29, 1992) (Judge Harold D.
Vietor, adopting the Report and Recommendation of Magistrate Judge Celeste
F. Bremer). It cannot, therefore, be characterized accurately as
“frivolous.” We believe that Goff and Rose have shown that a non-frivolous
claim was impeded by the prison’s policy, see Lewis, supra, 116 S. Ct. at
2181, and that they therefore have standing to contest ISP’s restrictions
on co-plaintiff communications.

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 The defendants argue that even if Goff and Rose have standing to
challenge ISP’s policy on co-plaintiff communications, the restriction was
reasonably related to a legitimate penological interest, and therefore
constitutional. Turner v. Safley, 482 U.S. 78, 89 (1987). They explain
that the principal justification for the policy is security. A deputy
warden testified that the restriction precludes inmates from disseminating
information about a transferee to inmates in his new facility. This is
particularly important when the person is being transferred for his own
safety, for example, if he has been identified as a “snitch.” The second
reason for the policy that the deputy warden offered was that it prevented
the transfer of contraband2 or love letters to inmates in other units. The
District Court found that the deputy warden admitted that the abuses of the
system that allowed inter-unit mail were minimal, but our reading of the
transcript leads us to disagree, as the warden repeatedly insisted that
there were probably many abuses that he was not aware of, in addition to
the dozen violations identified each year.

There is little difference between the policy here and Missouri’s
prison policy upheld in Turner, 482 U.S. at 91-93, except that there the
prison allowed legal correspondence. In Turner, the regulation was
challenged as a First Amendment violation; here, as a restriction on the
right to meaningful access to the courts as explained in Bounds v. Smith,
430 U.S. 817 (1977). Turner provides no difference in the level of
justification a prison must have depending on the source of the
constitutional claim. Turner, 482 U.S. at 89. ISP’s policy burdens a
different

2
The warden explained that anything that inmates are not
allowed by prison policy to possess constitutes “contraband.”
The term is not limited to such things as drugs and weapons.

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right held by prisoners, but achieves its end (preventing inciting
information from being transmitted to other units) by means similar (a ban
on inter-unit mail) to those held constitutional in Turner.3 Therefore,
we conclude that the ban on inter-unit correspondence is permissible under
the Constitution and reverse the District Court’s grant of an injunction
against it.

C.

The District Court also ordered that ISP provide a means for the
return of an inmate’s legal documents to him when his jailhouse lawyer is
transferred to another unit. The Court directed ISP to send an official
to the cell of a jailhouse lawyer shortly before he is transferred to ask
what legal papers should remain, determine to whom they belong (by scanning
them briefly), and ensure the return of the documents to their owner.
Defendants contend that Goff and Rose do not have standing to challenge
this policy because they were not themselves injured by it. The District
Court found, to the contrary, that Rose lost legal papers critical to his
post-conviction proceedings when Goff, who possessed them at the time, was
transferred. Rose, therefore, may assert this claim on his own behalf.
Because we can see no reason why Rose’s claim is substantially different
from those that might be brought by other

3
It is of no moment that ISP did at one point allow such
correspondence. The inmates did not thereby acquire a
protectible entitlement to the continuation of the policy. They
were merely provided a privilege that the prison later decided no
longer to extend to them because of security concerns. While the
previous policy was certainly reasonable, as Turner makes clear,
that does not necessarily make any more restrictive policy
unreasonable. The difficulty ISP would face in determining
whether a prisoner had placed legal correspondence or improper
correspondence in a red-star envelope allows it to conclude
reasonably that the new policy was an appropriate (albeit not the
only possible) response.

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inmates who are deprived of their papers in the same way, an injunction
against the prison’s policy (as opposed to an injunction applicable only
to Rose) would not be inappropriately overbroad.

The defendants offer four justifications for ISP’s restriction.
First, they explain that the policy is consistent with halting the
jailhouse lawyer-client relationship when one is transferred. Second, the
policy eliminates concerns over the free passage of paper between inmates.
Third, it allays fears about the transfer of contraband. Finally, ISP
contends it is burdensome to supply a prison official to attend to such
matters upon the transfer of anyone claiming to be a jailhouse lawyer.
Together, the defendants argue, these reasons make the policy
constitutional under Turner.

The taking of an inmate’s legal papers can be a constitutional
violation when it infringes his right of access to the courts. Tyler v.
Woodson, 597 F.2d 643, 644 (8th Cir. 1979) (citing Tyler v. “Ron” Deputy
Sheriff, 574 F.2d 427 (8th Cir. 1978)). The taking of legal papers will
often (though perhaps not always) interfere with an inmate’s right of
access to the courts. We will not deny relief on the unsupported
assumption that the papers involve only frivolous claims. Therefore, the
destruction or withholding of inmates’ legal papers burdens a
constitutional right, and can only be justified if it is reasonably related
to a legitimate penological interest. Turner, supra.
The defendants’ proffered justifications do not persuade us that the
District Court’s injunction was incorrectly issued. The lawyer-client
relationship is already essentially concluded upon the lawyer’s transfer,
because of the prison’s permissible restriction on future correspondence,
and will not be more effectively severed by the destruction or withholding
of documents.

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The defendants do not challenge the lawyer’s acquisition of the client’s
papers, and we do not see how their retransmittal to the client constitutes
a worrisome free passage of paper. We also believe that the feared
transfer of contraband can be avoided by an official’s scanning the
documents before he returns them. Moreover, the most persuasive
justification for prohibiting inter-unit correspondence is not present
here: the documents stay within their original unit and there is,
therefore, no opportunity to communicate information about inmates to other
units. Finally, we do not see the administrative burden as large,
especially when compared to the loss an inmate may suffer when what may be
his only copy of a legal document that could determine his freedom is
destroyed. We therefore conclude that the District Court correctly issued
an injunction against the practice, and the relief granted was appropriate.

IV.

We conclude that the plaintiffs do not have standing to challenge
ISP’s policy restricting inter-unit correspondence, except for that between
co-plaintiffs. The plaintiffs do have standing to challenge ISP’s failure
to provide for the return of legal documents to inmates when the holder of
the documents is transferred. We hold the restriction on inter-unit
correspondence between co-plaintiffs is constitutional and therefore vacate
the District Court’s injunction against this policy. We hold that the
failure to provide for the return of an inmate’s legal documents to him
does violate the Constitution and therefore uphold the District Court’s
injunction and remedial scheme with respect to that issue.
Affirmed in part and reversed in part.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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