Nasir v. Morgan

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-25-2003
Nasir v. Morgan
Precedential or Non-Precedential: Precedential
Docket No. 01-2519
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PRECEDENTIAL
Filed November 25, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2519
ABDUL NASIR
Appellant,
v.
CAPTAIN JAMES MORGAN; SUPERINTENDENT TIMOTHY
B. ENGLISH; THOMAS ALTMAN, MAIL ROOM
SUPERVISOR
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(W.D. PA. CIV. NO. 99-CV-00791)
District Judge: The Honorable Alan N. Bloch
Argued July 9, 2003
BEFORE: NYGAARD and SMITH, Circuit Judges and
IRENAS,* Senior District Judge.
(Filed: November 25, 2003)
Paul W. Schmidt, Esq. (Argued)
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Appellant
* Honorable Joseph E. Irenas, Senior District Judge for the United States
District Court for the District of New Jersey, sitting by designation.
2
Calvin R. Koons, Esq. (Argued)
Office of Attorney General of
Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Robert S. Englesberg, Esq.
Office of Attorney General of
Pennsylvania
564 Forbes Avenue, 5th Floor
Manor Complex
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
IRENAS, Senior District Judge:
Presently before the Court is Appellant Abdul Nasir’s
(“Appellant,” “Nasir”) appeal of the Judgment entered by the
United States District Court for the Western District of
Pennsylvania, finding that Appellees Captain James Morgan
(“Captain Morgan”), Superintendent Timothy B. English and
Mail Room Supervisor Thomas Altman did not violate
Nasir’s constitutional rights under 42 U.S.C. § 1983.
Specifically, Nasir argues that: (1) Appellees violated the
First Amendment by banning correspondence between
Nasir and former prisoner Jason Shutt (“Shutt”); and (2)
Appellees violated Shutt’s Fourteenth Amendment due
process rights by failing to inform him of the ban on
correspondence.
The District Court had jurisdiction pursuant to 28 U.S.C.
§ 1331. This court has jurisdiction pursuant to 28 U.S.C.
§ 1291. Our standard of review applicable to an order
granting summary judgment is plenary. Curley v. Klem, 298
F.3d 271, 276-77 (3d Cir. 2002). In conducting our review,
we view the facts in the light most favorable to the non-
moving party. Doe v. County of Centre, PA, 242 F.3d 437,
446 (3d Cir. 2001). We affirm the judgment of the District
Court, though on different grounds. We may affirm a
District Court’s summary judgment ruling on different
3
grounds, “provided the issue which forms the basis for our
decision was before the lower court.” Morse v. Lower Merion
School District, 132 F.3d 90, 904 n.1 (3d Cir. 1998); see
also Salley v. Circuit City Stores, Inc., 160 F.3d 977, 978 (3d
Cir. 1998).
I.
In 1999, while an inmate in the State Correctional
Institution at Greensburg, Pennsylvania (“Greensburg”),
Abdul Nasir attempted to correspond by letter with Jason
Shutt, a former inmate with whom Nasir had formed a
romantic relationship. Appellants, who are officials at
Greensburg, blocked this correspondence based on
Pennsylvania Department of Corrections Policy Statement
DC-ADM 803 (“Policy Statement”), which prohibits
correspondence between current and former inmates.1
On April 22, 1999, one week after Shutt was released
from Greensburg, Captain Morgan began monitoring Nasir’s
correspondence. Nasir was expressly ordered to stop all
communications with Shutt on May 4, 1999. The following
day, Morgan discovered mail which he believed Nasir was
attempting to send to Shutt, and filed a report that resulted
in Nasir receiving ninety days of disciplinary confinement.
On May 7, 1999, Nasir’s cell was searched to determine
whether he was complying with the Policy Statement and a
number of different items were seized as a result. Though
Nasir contends that none of the seized items bore any
1. Pennsylvania Department of Corrections Policy Statement DC-ADM
803 and subsection VI (A)(3)(a) reads, in relevant part:
It is the written policy of the Department of Corrections to provide
inmate access to communication with members of society at large
through the established public mail system and to govern the
inspection of mail, determine the types of publications allowed, and
how they will be reviewed. Restriction to access shall be related
directly to institutional order and obscenity criterion. . .
3. Inmates are prohibited from:
(a) Corresponding with inmates, former inmates, parolees,
probationers, co-defendants, or victims of the inmate’s criminal
acts except with the written approval of the Superintendent.
4
relationship to Shutt, he received another ninety days of
disciplinary confinement based on the search.
The Greensburg mail logs show that during the relevant
period, the prison confiscated eight pieces of mail that had
been sent to or from Shutt. Five letters were from Shutt or
Shutt’s address, and three were either to Shutt, his
address, or to Nasir’s brother with an enclosed letter to be
forwarded to Shutt. Nasir is now incarcerated at a state
facility in Huntingdon, Pennsylvania, where he is still
subject to the Policy Statement.
Nasir filed suit in the United States District Court for the
Western District of Pennsylvania on May 21, 1999, claiming
violations of his constitutional rights under 42 U.S.C.
§ 1983; specifically, that Appellees violated the free speech
provisions of the First Amendment and the due process
protections of the Fourteenth Amendment in blocking any
correspondence to and from Shutt. The District Court
granted Defendants’ summary judgment motion.2
On June 13, 2001, Nasir appealed to this Court. On May
31, 2002, a panel of this Court dismissed part of Nasir’s
appeal, but held the appeal to be non-frivolous as to two
issues: (1) whether the Pennsylvania Department of
Corrections’ prohibition on correspondence between
inmates and former inmates is constitutional; and (2)
whether defendants properly notified Jason Shutt when his
letters to Appellant were rejected, whether Appellant has
standing to bring an action based on this failure, and if so,
whether Appellant’s due process rights were violated.
2. The matter was referred to a Magistrate Judge who issued a Report
and Recommendation on May 17, 2001. See Appellant’s Appendix A 12.
As to incoming mail the Judge said “. . . it is clear that DOC’s
administrative directive is reasonably related to DOC’s legitimate concern
for institutional security.” Appellant’s Appendix A 19. As to outgoing mail
the Judge said that the directive “. . . furthered an important or
substantial governmental interest unrelated to the suppression of
expression, i.e., security, . . . .” Appellant’s Appendix A 20. This Report
and Recommendation was adopted as the opinion of the District Court
on June 6, 2001. Appellant’s Appendix A 10.
5
II.
We do not find that Pennsylvania Department of
Corrections Policy Statement DC-ADM 803 violates the
First Amendment.3 To reach this conclusion, we rely on two
Supreme Court cases, Turner v. Safley, 482 U.S. 78 (1987)
and Procunier v. Martinez, 416 U.S. 396, (1974), as the
standards governing incoming and outgoing mail. We then
determine that the Policy Statement passes both tests: (1)
the four-part Turner test as to incoming mail and (2) the
two-part Martinez test as to outgoing mail.
A.
We begin, as did the Supreme Court in Martinez and
Turner, by noting that federal courts must heed the valid
constitutional claims of prison inmates. “Prison walls do
not form a barrier separating prison inmates from the
protections of the Constitution.” Turner, 482 U.S. at 84.
Because prisoners retain their constitutional rights, “[w]hen
a prison regulation or practice offends a fundamental
constitutional guarantee, federal courts will discharge their
duty to protect constitutional rights.” Martinez, 416 U.S. at
405-06. However, “[r]unning a prison is an inordinately
difficult undertaking that requires expertise, planning,” and
regulations to guarantee prison and inmate security.
Turner, 482 U.S. at 84. Prisoner mail is one such area in
which inmate behavior is regulated.
The Court’s original decision in the field of prisoner mail
was Martinez, which in effect applies a strict scrutiny test
to all restrictions on prisoner correspondence.4 However, in
3. We have permitted the Appellant prisoner in this case to raise the
First Amendment rights of the former prisoner whose First Amendment
rights are also impinged by the ban on correspondence. Martinez
suggests that a total ban on correspondence between two people
implicates the First Amendment rights of both in a way that is
inextricably intertwined. 416 U.S. 396, 408-09 (1974).
4. Although the Martinez Court never used the words ‘strict scrutiny,’
subsequent Supreme Court cases refer to Martinez as applying strict
scrutiny. See Turner, 482 U.S. at 83. Nevertheless, Justice Blackmun, in
Thornburgh v. Abbott declined to recognize Martinez as calling for a least-
restrictive means test, the hallmark of strict scrutiny analysis. 490 U.S.
401, 411 (1989).
6
Turner, the Court retreated from the Martinez test and
outlined a more deferential standard — one that the Court
and the Third Circuit have since followed consistently in
prisoners’ constitutional rights cases. However, in a 1989
Supreme Court case, Thornburgh v. Abbott, 490 U.S. 401,
413 (1989), Justice Blackmun suggested that Turner had
not overruled the Martinez two-part test as applied in cases
concerning outgoing mail.
Martinez concerned a California Department of
Corrections regulation which censored inmate mail deemed
to magnify grievances or contain other inflammatory
statements. 416 U.S. at 316. In finding the regulation
unconstitutional, the Court originally set forth a two-part
test:
First, the regulation or practice in question must
further an important or substantial government
interest unrelated to the suppression of expression.
Prison officials must show that a regulation authorizing
censorship furthers one or more of the substantial
government interests of security, order and
rehabilitation. Second, the limitation of First
Amendment freedoms must be no greater than is
necessary or essential to the protection of the
particular governmental interest involved.
Martinez, 416 U.S. at 413.
The Martinez test stood alone in the Court’s discussion of
prisoner mail until the Turner case thirteen years later.
Turner considered a Missouri prison regulation that forbade
communication between inmates at different institutions.
The Court upheld the regulation, and in doing so, laid down
a different standard and test than that in Martinez. It
wrote: “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”
Turner, 482 U.S. at 89.
Since the Turner decision, the Supreme Court has
consistently applied the Turner standard to prisoners’
constitutional rights claims. See Shaw v. Murphy, 532 U.S.
223 (2001), (considering a ban on inmate-to-inmate
correspondence that contained legal advice); Washington v.
7
Harper, 494 U.S. 210 (1990) (applying Turner to a
substantive due process challenge to the involuntary
administration of psychotropic drugs to a prisoner who had
a serious mental illness); O’Lone v. Shabazz, 428 U.S. 342(1987), (upholding the constitutionality on First
Amendment grounds of a prison policy that prevented
Muslim inmates from attending a weekly congregational
service). The Third Circuit has similarly recognized Turner
as the applicable standard in prisoners’ constitutional
rights cases. See, e.g., Doe v. Delie, 257 F.3d 309 (3d Cir.
2001); DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000) (en
banc); Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998);
Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997); Cooper v.
Tard, 855 F.2d 125 (3d Cir. 1988).
Nevertheless, in Thornburgh v. Abbott, 490 U.S. 401 (D.C.
Cir. 1989), the Supreme Court narrowly construed Turner’s
impact on Martinez. Thornburgh involved a challenge, on
First Amendment grounds, to a District of Columbia prison
regulation governing receipt of subscription publications.
The Court actually applied Turner and upheld the
regulation. In doing so the Court limited Martinez:
[A] careful reading of Martinez suggests that our
rejection of the regulation at issue resulted not from a
least restrictive means requirement, but from our
recognition that the regulated activity centrally at issue
in that case — outgoing personal correspondence from
prisoners — did not, by its very nature, pose a serious
threat to prison security. . .
Furthermore, we acknowledge today that the logic of
our analyses in Martinez and Turner requires that
Martinez be limited to regulations concerning outgoing
correspondence. . . The implications of outgoing
correspondence for prison security are of a
categorically lesser magnitude than the implications of
incoming materials.
Id. at 411-13. Thornburgh was, in effect, giving Turner and
Martinez narrow readings to minimize the conflict between
the two cases. However, Thornburgh was a case about
incoming mail. The Court made no judgment as to outgoing
mail, and any suggestion by the Court that Martinez would
8
still apply to outgoing mail was dictum. We note that
Thornburgh refused to apply different standards to
incoming mail from prisoners as opposed to incoming mail
from non-prisoners, notwithstanding the argument that
incoming mail from prisoners is potentially much more
dangerous.5 490 U.S. at 413. Because Thornburgh holds
that Turner does not squarely overrule Martinez as applied
to outgoing mail, we will apply Turner to incoming mail and
Martinez to outgoing correspondence.
B.
Applying the Turner standard to incoming mail, we find
the Policy Statement reasonably related to legitimate
penological interests. To reach this determination, Turner
prescribes a four-part test. We must consider: (1) whether
there is a valid, rational connection between the prison
regulation and a legitimate governmental interest; (2)
whether alternative means of exercising the right in
question remain open to inmates; (3) the impact
accommodation of the asserted prisoner right will have on
the prison generally; and (4) whether there is an absence of
ready alternatives. Turner, 482 at 89-90. We consider each
factor of the analysis in turn.
1.
The first, and most important, prong of the Turner
analysis requires a rational connection between the prison
regulation in question and the legitimate governmental
interest which justifies it. According to Turner, a regulation
will be sustained unless, “the logical connection between
the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational.” Id. There is no
5. The Magistrate Judge applied Turner to both incoming and outgoing
mail. He appeared to reason that since Thornburgh declined to adopt a
different standard for incoming mail from prisoners as compared to
incoming mail from non-prisoners, correspondence between prisoners,
which is subject to Turner, should be treated no differently than mail
between a prisoner and a non-prisoner. See Appellant’s Appendix A 18-
19. The fallacy in this logic is that from an institutional perspective
prisoner to prisoner mail is all incoming mail.
9
question that such a connection exists in this case with
respect to incoming mail. The Policy Statement is rationally
connected to a legitimate government interest: insuring the
internal and external safety of prisons.
The regulation and the asserted goal in this case are very
similar to those at stake in Turner. As the Turner Court
noted, inmate to inmate mail between institutions “can be
used to communicate escape plans and to arrange assaults
and other violent acts.” Id. at 91. These concerns hardly
change when the sender of prisoner correspondence is a
former prisoner. Indeed, they may increase as the former
prisoner has greater access to people and items that could
lead to crimes outside or inside the prison. See O’Keefe v.
Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) (holding that
a prisoner could have an outside confederate send mail that
threatens prison security under the guise of a response to
a grievance).
The concerns that the Policy Statement addresses are
undeniably legitimate, and the Statement is squarely aimed
at those concerns; thus, it passes the first element of the
Turner test.
2.
The second Turner factor considers whether there are
“alternative means of exercising the right that remain open
to prison inmates.” Turner, 482 U.S. at 89. The right at
stake here is communication with individuals outside the
prison, and we find that ample alternative means to
communicate remain open to prison inmates under the
Policy Statement. Once again, the factual similarities
between this case and Turner provide guidance:
Moreover, the correspondence regulation [between
inmates at different institutions] does not deprive
prisoners of all means of expression. Rather, it bars
communication only with a limited class of other
people with whom prison officials have particular cause
to be concerned — inmates at other institutions within
the Missouri prison system.
Id. at 92.
10
Here, the challenged Policy Statement, as in Turner, does
not bar prisoners from all forms of correspondence. At
issue here is “communication with a limited class of other
people with whom prison officials” are concerned: former
prisoners. Id. Outside of this limited class, prisoners are
free to communicate with most any other individual. In
fact, the inmate censoring log shows that of 32 pieces of
mail Appellant sent out during the relevant 30 day period,
24 were forwarded to their intended recipient, evidencing
quite an ample opportunity to communicate with non-
prisoners. Thus, The Policy Statement passes the second
element of the Turner test.
3.
The third factor in the Turner analysis of incoming mail
is the impact of accommodating the asserted right on other
inmates and prison personnel. We find that communication
with former prisoners has a significant potential negative
impact on the rights of other inmates and prison personnel;
an impact sufficient to justify imposing limits on that
communication.
As stated in Turner, where a right “can be exercised only
at the cost of significantly less liberty and safety for
everyone else . . . the choice made by corrections officials
. . . should not be lightly set aside by the courts.” Id. The
Court found that the correspondence between inmates at
separate prison institutions, “facilitates the development of
informal organizations that threaten the core functions of
prison administration, maintaining safety and internal
security . . . at the cost of significantly less liberty and
safety for everyone else, guards and prisoners alike.” Id.As the regulation here concerns communications with
former prisoners, the concern of ‘informal organization
development’ may be less pronounced, but it is replaced
with new risks including escape, retaliation, introduction of
contraband, and other illegal activity. There are
considerable grounds to determine that allowing
unsupervised communication to former prisoners could
harm prisoners, guards, and the prison system generally.
Therefore, the Policy Statement passes the third Turner
element.
11
4.
Finally, the fourth Turner element evaluates the
availability of ready alternatives to the regulation in
question. If there are clear alternatives available, the
regulation is less likely to be upheld. The only alternative
that Appellant Nasir proposes in this case, just as the
plaintiffs argued in Turner, is the complete monitoring of
inmate correspondence to prevent all dangerous
communication. The Turner response is equally appropriate
here: “Prison officials testified that it would be impossible to
read every piece of inmate-to-inmate correspondence, and
consequently there would be an appreciable risk of missing
dangerous messages.” Id. at 93.
Further, the Turner Court recognizes the real possibility
that prisoners develop jargon or code to “prevent detection
of their real messages.” Id. We need only recall Holly
Golightly’s weekly visits to Sing-Sing to see mobster Sally
Tomato and her unwitting communication of his “weather
reports” to an outside confederate to note the ease with
which this can be accomplished.6
6. The relevant stretch of dialogue between Audrey Hepburn and George
Peppard from BREAKFAST AT TIFFANY’S (Paramount Pictures 1961) reads:
Paul Varjak: “And what do you mean, weather report?”
Holly Golightly: “Just a message I give Mr. O’Shaughnessy so he
knows I’ve really been up there. Sally tells me to say things like, uh
. . . oh, there’s a hurricane over in Cuba . . . or, cloudy over
Palermo, things like that.”
[Break]
Paul Varjak: “Now, darling, why don’t you start? Did you carry
messages from Sally Tomato in code?”
Holly Golightly: “Of course not. I’d just give Mr. O’Shaughnessy the
weather report. Simply do not ask me what this is all about.”
Paul Varjak: “Did you visit Tomato?”
Holly Golightly: “Every week. What’s wrong with that?”
Paul Varjak: “Tomato’s part of the narcotics syndicate.”
Holly Golightly: “He never mentioned narcotics. These wretched
people keep persecuting him. He’s a deeply sensitive person, a
darling old man.”
BREAKFAST AT TIFFANY’S (Paramount Pictures 1961).
12
Because there would be an inherent risk of missing
dangerous communications, both through the use of
deceptive language and due to the volume of incoming mail
that prison staff would be required to read and review, we
do not feel that Appellant Nasir presents a reasonable
alternative to the Policy Statement. Therefore, we find that
the regulation passes the fourth element of the Turner test.7
With respect to incoming mail, the Policy Statement is
reasonably related to legitimate penological objectives.
Incoming communication to inmates by former prisoners
presents a serious set of dangers to prison safety and
prison administration, and the regulation logically
addresses those dangers by permitting correspondence only
with approval. Accordingly, we conclude that the regulation
does not unconstitutionally abridge Appellant Nasir’s First
Amendment rights.
C.
Having determined that the Policy Statement does not
violate the First Amendment with respect to incoming mail,
we must now determine whether the same holds true for
outgoing mail. The applicable test from Martinez has two
elements: (1) that the regulation must further an important
or substantial government interest unrelated to the
suppression of expression; and (2) that the regulation be no
greater than necessary for the protection of that interest.
Martinez, 416 U.S. at 413. We find that the Policy
Statement passes both elements of the Martinez test.
1.
The Policy Statement clearly furthers an important and
substantial government interest unrelated to the
suppression of expression. The Policy Statement is aimed at
maintaining the internal security of prisons and deterring
violent or otherwise dangerous behavior outside of prison.
7. Most prisons also forbid inmates from playing correspondence chess
with either inmates in other institutions or with outsiders. The symbols
used to convey the next move may conceal a code being used for
nefarious purposes.
13
In Martinez, the Court gave some guidance as to what
criteria would satisfy the first element of its analysis.
“Prison officials must show that a regulation authorizing
censorship furthers one or more of the substantial
government interests of security, order and rehabilitation.”
Id. While as a general rule the Supreme Court considers
outgoing mail less risky than incoming correspondence,
Thornburgh recognizes that there may still be considerable
danger in outgoing letters:
The implications [of outgoing correspondence] for
[prison] security are far more predictable. Dangerous
outgoing correspondence is more likely to fall within
readily identifiable categories: examples . . . include
escape plans, plans relating to ongoing criminal
activity, and threats of blackmail or extortion.
490 U.S. at 413. Added to these risks are the possibility
that such mail could be used to facilitate the introduction
of contraband into the prison, or the conducting of a
business prohibited by prison regulations. The specific
threats to security identified by Thornburgh constitute an
important and substantial government interest.
Outgoing inmate correspondence addressed to former
inmates rather alarmingly implicates the Thornburgh
concerns. Former inmates of an institution have an
intimate knowledge of its internal functions and residents.
The threat from correspondence on these issues — escape,
contraband, retaliation, violence, illegal business operation
— is intensely magnified when the communication is with
a former inmate.
The criminal justice system recognizes the dangers of
communicating with former felons outside the prison
context as well. The Turner Court also noted: “Undoubtedly,
communication with other felons is a potential spur to
criminal behavior: this sort of contact is frequently
prohibited even after an inmate has been released on
parole.” Turner, 482 U.S. at 92. Clearly, if a parole officer
must grant permission to a parolee to communicate with a
former prisoner, a prison is entitled to the same supervision
over the same communications of a current prisoner. See,
e.g., USSG § 5D1.3 (c)(9) (stating that defendants on
14
supervised release shall not associate with convicted felons
without permission of probation officer); 28 CFR § 2.40(a)(10) (conditioning federal parole on non-association with
known criminals, unless permission is granted by the
parole officer); 28 CFR § 2.204; 18 USC § 3583 (d); 18 USC
§ 3563 (b)(6).
In Overton v. Bazzetta, 123 S. Ct. 2162 (2003), the
Supreme Court recently considered a variety of restrictions
on visitation imposed by the Michigan Department of
Corrections, one of which forbids an inmate from placing a
former prisoner on his list of approved visitors, unless that
inmate was also a part of the inmate’s immediate family.
Mich. Admin. Code Rule 791.6609(7). Id. at 2166. In
reversing the District Court and the Sixth Circuit Court of
Appeals, both of which found the regulation
unconstitutional, the Court quoted from Turner at 91-92:
“We have recognized that ‘communications with other
felons is a potential spur to criminal behavior.’ ” Id. at
2168. The risks inherent in visits between a prisoner and a
former inmate seem little different from the risks which flow
from written communications between a prisoner and a
former inmate.
Outgoing inmate correspondence to former prisoners
deals with those institutional dangers specifically identified
in Thornburgh. Maintaining prison security in the face of
that correspondence is the goal of the Policy Statement,
and therefore, even under the Martinez standard, we find
that the Statement furthers an important and substantial
government interest.
2.
The second element of the Martinez analysis, that the
limitation of First Amendment freedoms be no greater than
necessary or essential to the protection of the particular
governmental interest involved, is also satisfied.
We point out first that this is not a least-restrictive
means test. “We do not believe that Martinez should, or
need, be read as subjecting the decisions of prison officials
to a least-restrictive means test.” Thornburgh, 490 U.S. at
411. Much of the discussion, therefore, that proceeded in
15
the Turner analysis is relevant here. The Policy Statement is
not a ban on all inmate correspondence, nor does it even
represent a majority of such correspondence. The ban is
narrowly tailored, aimed only at correspondence with
former prisoners. Ample opportunity still exists for
prisoners to communicate with the outside. Appellant Nasir
himself only had 8 of 32 pieces of mail blocked during a 30-
day period. Further, the Policy Statement does not provide
a categorical ban on correspondence with former inmates.
Rather, the correspondence may be allowed, “with written
approval of the Superintendent.” Pennsylvania Department
of Corrections Policy Statement DC-ADM 803. And as the
Martinez Court noted, “some latitude in anticipating the
probable consequences of allowing certain speech in a
prison environment is essential to the proper discharge of
an administrator’s duty.”
We believe that the Policy Statement falls squarely into
that category: a narrowly-tailored, specific regulation that
extends a proper amount of discretion to prison officials.
Such regulations are necessary if, “ ‘prison administrators
. . . and not the courts, [are] to make the difficult
judgments concerning institutional operations.’ ” Turner,
482 U.S. at 89, (quoting Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. at 128 (1977)).
We find that Pennsylvania Department of Corrections
Policy Statement DC-ADM 803 is constitutional as to its
regulation of outgoing mail. The Policy Statement furthers
an important and substantial government interest
unrelated to the suppression of expression and the
limitation it imposes on First Amendment freedoms is no
greater than necessary or essential to the protection of the
particular governmental interest involved.
III.
Finally, we turn briefly to Appellant Nasir’s Fourteenth
Amendment due process claim on behalf of Mr. Shutt.
Nasir argues that Shutt’s rights were violated when
Appellees failed to notify Shutt that their correspondence
was being blocked.
16
We determine the appropriateness of third-party standing
with a three element test. See Pennsylvania Psychiatric
Society v. Green Spring Health Services, Inc., 280 F.3d 278,
288-89 (3d. Cir) (quoting Campbell v. Louisiana, 523 U.S.
392, 397, (1998)). To successfully assert third-party
standing: (1) the plaintiff must suffer injury; (2) the plaintiff
and the third party must have a ‘close relationship’; and (3)
the third party must face some obstacles that prevent it
from pursuing its own claims.
We agree that Nasir has suffered an injury in this case as
his mail did not reach Mr. Shutt, and that the third party
faced a reasonable obstacle, as Mr. Shutt was never made
aware of the mail he was not receiving. However, Nasir
cannot satisfy the second element of the test — a ‘close’
relationship with Shutt.
Nasir argues that he and Shutt had a ‘close’ relationship
because Shutt was the direct recipient of his mail. Nasir
also asserts that his romantic relationship validates the
‘close’ relationship. However, both grounds mischaracterize
the nature of the third-party standing connection. Though
courts have recognized a reasonable number of
relationships that give rise to third-party standing, mere
correspondence is not one of them. In Green Spring, the
court listed several relationships as close: doctor/patient,
lawyer/client or vendor/customer. Id. at 290. Mail
sender/mail recipient was not among those listed, nor
should it have been.
A ‘close’ relationship for third-party standing must allow
the third-party plaintiff to operate “fully, or very nearly, as
effective a proponent,” of the potential plaintiff ’s rights as
would the plaintiff himself. Id. Such a situation arises, as
described above, in professional contexts, where the rights
of the potential plaintiff and third-party plaintiff neatly
align. Here we deal with a current inmate and a former
inmate — individuals unconnected by any professional tie,
and with very different sets of rights. Therefore, we do not
find that a relationship of correspondence, even romantic,
gives rise to third-party standing, and we deny Appellant
Nasir’s ability to raise a due process claim on behalf of
Shutt.
17
IV.
In conclusion, we find Pennsylvania Department of
Corrections Policy Statement DC-ADM 803 constitutional.
The Policy Statement does not violate the First Amendment
with respect to incoming mail or outgoing mail, as it passes
the tests set out in Procunier v. Martinez and Turner v.
Safley. We also conclude that Appellant Nasir does not have
a sufficiently close relationship to Mr. Shutt to confer the
standing necessary for Nasir to bring a due process claim
on Shutt’s behalf. Courts have long held a policy of
deference to those with experience and expertise in the
realm of prison administration.8 We have no basis to upset
that notion here. We affirm the judgment of the district
court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
8. The issue in this case is the harm that current prisoner/former
prisoner correspondence can do to prison security — not an area, as
noted in Waterman v. Farmer, “fraught with . . . scientific uncertainties.”
183 F.3d 208, 217 (3d Cir. 1999) (considering a regulation banning the
introduction of sexually explicit materials into a prison). Prisoner mail is
an area that the courts have encountered before, in which the dangers
are clear and recognized. Thornburgh, 490 U.S. at 413. In fact, on
matters that rely so heavily on the expertise and experience of prison
officials, courts have counseled significant judicial restraint: “[w]here a
state penal system is involved federal courts have, as we indicated in
Martinez, additional reason to accord deference to the appropriate prison
authorities.” Turner, 482 U.S. at 84-85. Due to the lack of scientific
uncertainty and the frequency and clarity with which courts have in the
past found appreciable risk in felon to felon contacts, we hold that a
remand to the District Court is not required. Just recently, in Overton,
the Supreme Court described as “self-evident” the connection between
“maintaining prison security and preventing future crimes” and a
“regulation prohibiting visitation by former inmates.” Id. at 2168.