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.