dissenting.
The issue in this case is whether the plaintiff, Rakim A. Muhammad, has a constitutional right to be present when prison officials open mail sent to Muhammad from the Attorney General of Michigan. I dissent because I do not think that Muhammad has shown a constitutional violation in this case.
First, it is necessary to determine which constitutional provision is implicated. The majority opinion indicates that Muhammad’s First Amendment rights were “chilled” when mail from the Attorney General was opened outside his presence. On the other hand, the district court found that MDOC’s practice of opening incoming Attorney General mail violated Muhammad’s “right of access to the court,” without citing a particular part of the Constitution. Perhaps it was referring to the Fourteenth Amendment due process rights. See Wolff v. McDonnell, 418 U.S. 539, 576, 94 S.Ct. 2963, 2984, 41 L.Ed.2d 935 (1974). The district court mentioned that Muhammad was raising First Amendment rights, but it did not determine that claim because it decided that Muhammad’s “right of access to the court” was violated. Whether it is analyzed under the First Amendment or the Fourteenth Amendment, I would not find a constitutional violation. Instead, I would follow the decision in Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1081, 127 L.Ed.2d 397 (1994), which held that a prisoner’s constitutional rights are not violated when his incoming legal mail is opened and inspected outside his presence. Accord Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir.1993).
Some of the facts in this case need to be emphasized. First, there is no allegation that MDOC opened or censored any mail from Muhammad. Second, although the district court referred to the reading of the incoming mail by prison officials, Muhammad does not allege that prison officials in this case read mail from the Attorney General nor did he raise the issue of whether they could read such mail. Third, the mail in question here is limited to that from the Attorney General, who has never had a lawyer-client relationship with Muhammad. All of the mail from the Attorney General was related to actions filed by Muhammad against MDOC, in which the Attorney General served as opposing counsel. Muhammad has not identified the circumstances under which the Attorney General could ever have an attorney-client privilege with him. Additionally, there is no question of censorship of incoming mail as found in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989).
Initially, I question whether this issue of prison officials’ opening confidential incoming mail from the Attorney General is ripe for judicial resolution because “a final decision by the prison” is lacking. Askins v. District of Columbia, 877 F.2d 94, 98 (D.C.Cir.1989). The Van Ochten memorandum, referred to in the majority opinion, *1087concludes that mail from the Attorney General is not confidential, but does so on the premise that the Attorney General represents the state, not the prisoner. Ordinarily, the Attorney General represents interests contrary to those held by prisoners. Even the majority opinion does not suggest that the Attorney General would ever represent the plaintiff, but might respond to some type of inquiry by the prisoner to that office. Nevertheless, the defendant prison officials have indicated that if the Attorney General wanted to send a confidential letter to a prisoner, “he could easily indicate on the outside of the letter that the material was to be opened in the presence of the prisoner.” They implied the request would be honored. Here, the only correspondence which Muhammad had with the Attorney General was in an adversarial relationship, which involved the mailing of documents such as pleadings in civil rights cases. It is not appropriate for the court to consider this matter until such time as Muhammad’s right to a letter marked “Confidential” by the Attorney General has been subject to opening outside his presence.
This ease presents “the type of disagreement that is undesirable for litigation until the question that separates the parties arises in a more concrete and final form.” Askins, 877 F.2d at 98. Muhammad has never indicated he had any confidential correspondence with the Attorney General. Until he does, we should not consider this case ripe for resolution.
Assuming that this case is ripe for review, and further assuming that the mail from the Attorney General is confidential, I still do not think that the policy of opening Muhammad’s incoming mail from the Attorney General is unconstitutional under Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987). Turner set a flexible reasonableness standard, not a “least restrictive alternative” standard. Thornburgh, 490 U.S. at 414, 109 S.Ct. at 1882. MDOC’s policy should be upheld because it is reasonably related to a legitimate penological objective and meets the test from Turner. See Brewer, 3 F.3d at 825. There is a legitimate and neutral governmental interest to which the policy is rationally connected. MDOC considers mail from the Attorney General in the same vein as mail from all other correspondents, except those specifically listed, such as the prisoner’s attorney, the courts and legal assistance organizations. Prison authorities may inspect for contraband mail from all sources except those specifically listed.
Certainly, it is not likely that someone from the Attorney General’s Office would send any contraband to a prisoner, but, inasmuch as it does not affect the prisoner in personal correspondence with his attorney, the need by authorities to inspect incoming mail for contraband is not unreasonable. There are alternative means of exercising the right of prisoners to correspond confidentially with the Attorney General’s Office. For example, a prisoner could ask the Attorney General to mark return mail “Confidential,” which the defendants in this case at least imply would be honored. It doesn’t seem that there would be any impact upon the prison administration to open the Attorney General mail in the presence of prisoners nor that the “ready alternatives,” referred to in Turner, 482 U.S. at 91, 107 S.Ct. at 2262-63, could not be used. However, that is probably trae about all mail which comes to prisoners. That is, all personal correspondence could probably be opened in the presence of prisoners. Inasmuch as courts such as the Fifth Circuit in Brewer have declined to find a constitutional violation under similar circumstances, I would not find that MDOC’s policy of opening, outside Muhammad’s presence, incoming mail from the Attorney General, is unreasonable. Therefore, I would reverse the decision of the district court.