Van Poyck v. Singletary

United States Court of Appeals,

Eleventh Circuit.

No. 96-2080

Non-Argument Calendar.

William VAN POYCK, Enrique Diaz, Plaintiffs-Appellants,

v.

Harry K. SINGLETARY, Jr., individually, and in his official
capacity as Secretary, Florida Department of Corrections,
Defendant-Appellee.

March 11, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-471-CIV-J-16), John H. Moore, II,
District Judge.

Before BIRCH and CARNES, Circuit Judges, and FAY, Senior Circuit
Judge.

PER CURIAM:

William Van Poyck and Enrique J. Diaz, state prisoners, appeal

a decision granting judgment against their civil rights complaint.

Because prison rules that regulate prisoner possession of postage

and limit postage materials provided by the prison do not violate

the law, we affirm.
FACTS:

Van Poyck and Diaz sued the secretary of Florida's Department

of Corrections ("DOC"), Harry K. Singletary, challenging the

constitutionality of two DOC rules, 33-3.004(12) ("Rule

3.004(12)"), regarding routine mail, and 33-3.006(5)(e) ("Rule

3.006(5)(e)"), regarding control of contraband. Poyck and Diaz

sought declaratory and injunctive relief.

Rule 3.004(12) allows: (1) prison officials to provide

indigent inmates with free postage and writing materials to mail
one first-class letter per month; (2) prison officials to restrict

the mailing of the letter to "a specific day of the month"; and

(3) inmates to receive a maximum of 15 stamps from persons outside

the prison. Rule 3.006(5)(e) provides that inmates may possess no

more than 20 stamps at any given time. Complaining that they were

unable to write as many letters to family as before the rules were

implemented, Van Poyck and Diaz alleged violations of their freedom

of speech, access to courts, and freedom of religion. They also

argued that Singletary promulgated the rules in violation of

Florida law.

Singletary moved for judgment on the pleadings, Fed.R.Civ.P.

12(c), and attorney's fees. He argued that because indigent

prisoners do not have a constitutional right to free postage for

nonlegal mail, the rules do not deny Van Poyck and Diaz any

constitutional rights or privileges.

The district court agreed with Singletary, holding that

limiting indigent prisoners to writing materials and postage for

one letter per month is not unconstitutional, since prisoners do

not have a right to free postage for nonlegal mail. The court

further held that the DOC could limit the number of stamps inmates

received and held, because, if accumulated in great number, the

economic value of stamps could threaten institutional security.
DISCUSSION:

We note that Van Poyck and Diaz do not advance their freedom

of religion or promulgation claims on appeal. These issues are

deemed abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881

F.2d 1570, 1573 n. 6 (11th Cir.1989).
Free postage for indigent prisoners

Van Poyck and Diaz argue that Singletary is required under the

First Amendment to provide free writing materials and postage to

indigent inmates for correspondence with family, and suggest that

five "free letters per week is a reasonable accommodation." They

also claim violations of the Sixth Amendment. Singletary argues

that the district court correctly held that the claims failed

because prisoners do "not have a right to free postage for routine,

nonlegal, mail."

A judgment on the pleadings is proper when no issues of

material fact exist, and the movant is entitled to judgment as a

matter of law. Fed.R.Civ.P. 12(c). This Court reviews de novo

grants of such motions. Ortega v. Christian, 85 F.3d 1521, 1524-25

(11th Cir.1996).

The Sixth Amendment claims that appellants have raised in

regard to postage and mail regulation are meritless. This Court

has ruled that for legal mail, the Sixth Amendment access-to-court

right only "entitles indigent to some free stamps ... not unlimited

free postage[.]" Hoppins v. Wallace, 751 F.2d 1161, 1162 (11th

Cir.1985). Moreover, the challenged prison rules only concern

"routine mail," which is different from legal mail.

The resolution of appellants' First Amendment claims for more

postage and free materials for their non-legal mail would appear to

be analogous. Although this Court has no case law specifically

addressing whether the First Amendment requires officials to

provide indigent prisoners with materials and postage for routine

mail, the Eighth Circuit has held persuasively that "indigent
inmates have no constitutional right to free postage for nonlegal

mail." Hershberger v. Scaletta, 33 F.3d 955, 956 (8th Cir.1994).

We agree. The district court correctly ruled that Rules

3.004(12) and 3.006(5)(e) do not violate appellants' First

Amendment rights. The First Amendment does not compel prison

officials to provide indigent prisoners with unlimited free postage

and materials for non-legal mail. See Hershberger, 33 F.3d at 956.

The rules allow for free postage and materials, and do not prevent

Van Poyck and Diaz from expressing free speech. See Rules

3.004(12) & 3.006(5) (R1-1, Exhs. 13-14). Although the rules

reduce the number of opportunities for an indigent inmate to

express free speech through the mail, the rules nevertheless

provide "some free stamps" for such exercise. See Hoppins, 751

F.2d at 1162.

Appellants argue that the former Fifth Circuit, in Guajardo v.

Estelle, 580 F.2d 748 (5th Cir.1978), set a constitutional minimum

of five free letters per week that indigent prisoners could send to

family and friends. However, this argument is incorrect. Rather

than addressing the number of letters for which prisoners should be

provided resources to send to family and friends, the Guajardo

court instead approved the provision of postage and stationery for

indigent inmates to mail five letters per week to attorneys and the

media. Id. at 762-63.

Quantity of postage possessed by prisoners

Van Poyck and Diaz complain that, with respect to their

attacks against the 15 and 20 stamp limits, the district court

improperly affirmed the limits based on its reasoning that the
limits protected institutional security and safety. They also

argue that the court failed to give deference to their factual

allegations, which were, for example, that the new rules

"significantly restrict[ed their] ability to communicate with the

free world[.]" Finally, they argue that because Singletary's

motion only attacked their challenge to the one-free-letter per

month provision, the district court improperly dismissed their

attacks against the 15 and 20 stamp limits without giving them

notice and opportunity "to submit evidence and facts[.]"

We find this challenge against the prison rules limiting the

quantity of stamps they can possess meritless. This Court has

affirmed a prison policy preventing inmates from possessing loose

postage stamps because it was related to the legitimate security

interest of eliminating "the exchange of contraband among inmates."

Little v. Norris, 787 F.2d 1241, 1243 (8th Cir.1986); see also

Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2262, 96 L.Ed.2d

64 (1987) (allowing prison rules to burden inmate's constitutional

rights when reasonably related to a legitimate penological

interest).

The judgment of the district court is AFFIRMED.