UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2230
WESTON J. STOW,
Plaintiff, Appellant,
v.
SUSAN GRIMALDI, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Weston J. Stow on brief pro se.
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Jeffrey R. Howard, Attorney General, and William C. McCallum,
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Assistant Attorney General, on brief for appellees.
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May 27, 1993
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Per Curiam. Plaintiff appeals from the dismissal
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of his action as frivolous. We affirm.
I.
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Plaintiff, an inmate at New Hampshire State Prison,
filed a civil rights action seeking declaratory, injunctive,
and damages relief for two instances when he was not
permitted by prison regulations to send sealed letters to the
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Liberty University School of Lifelong Learning in postage-
prepaid envelopes supplied by the university. The envelopes
contained plaintiff's request to enroll in summer classes and
plaintiff's grades for the previous semesters. While prison
regulations allowed sealed letters to be sent to any of ten
listed persons or entities (e.g., president, vice-president,
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federal or state courts) -- all other outgoing mail
presumably had to be sent in unsealed envelopes for ready
inspection -- schools and universities were not included on
the privileged list.1 Nevertheless, plaintiff claimed that
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1. According to plaintiff, the challenged regulation
provided as follows:
Privileged Correspondence
1. Correspondence between a resident and a privileged
correspondent will not ordinarily be inspected.
However, it may be opened in the presence of the
resident when considered necessary to insure the
authenticity of the correspondent or to check for
contraband. In any case, it will not be opened
outside the presence of the resident unless the
item has specifically waived this privilege in
writing. Mail in privileged status must be clearly
addressed to or received from one of the ten (10)
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his mail should be considered privileged because it contained
plaintiff's grades, a personal matter. After prison
officials refused plaintiff's request and required an
unsealed mailing, plaintiff filed the present action
challenging the prison mail policy and the prison officials'
actions as violative of the constitution and the Family
Educationaland Privacy Rights Act of 1974, 20 U.S.C. 1232g.
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privileged classifications in this PPD.
2. The following is a complete list of agencies or
individuals classified as privileged. Mail
addressed as indicated will not be opened for
inspection except in the resident's presence and
may be sealed before deposit in the mail collection
boxes. Addresses marked with a *, do not require
postage.
a. President of the United States, Washington, DC
b. Vice-President of the United States,
Washington, DC
c. Members of Congress addressed to appropriate
office
d. The Attorney General of the United States and
regional offices of the Attorney General
e. Federal or State Courts*
f. The Governor and Council of the State of New
Hampshire, State House, Concord, NH 03301*
g. The Attorney General of the State of New
Hampshire, State House Annex, Concord, NH
03301*
h. Commissioner of the Department of Corrections*
i. Members of the State Parole Board*
k. County Attorneys per warden
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Concluding that plaintiff had no right to send his
college transcripts in sealed envelopes, a magistrate judge
recommended that the complaint be dismissed. The district
court agreed, and plaintiff has now appealed.
II.
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The censorship2 of outgoing prisoner
correspondence "is justified if the following criteria are
met":
First, the regulation or practice in
question must further an important or
substantial governmental interest
unrelated to the suppression of
expression. Prison officials may not
censor inmate correspondence simply to
eliminate unflattering or unwelcome
opinions or factually inaccurate
statements. Rather, they must show that
a regulation authorizing mail censorship
furthers one or more of the substantial
governmental 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. Thus a restriction on inmate
correspondence that furthers an important
or substantial interest of penal
administration will nevertheless be
invalid if its sweep is unnecessarily
broad. This does not mean, of course,
that prison administrators may be
required to show with certainty that
adverse consequences would flow from the
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2. We will assume without deciding that the inspection of
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plaintiff's mail constitutes censorship. But see Royse v.
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Superior Court of the State of Washington, 779 F.2d 573 (9th
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Cir. 1986) (inspection for contraband of mail sent by
prisoners to state court does not constitute censorship and
does not violate the constitution).
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failure to censor a particular letter.
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. But any regulation
or practice that restricts inmate
correspondence must be generally
necessary to protect one or more of the
legitimate governmental interests
identified above.
Procunier v. Martinez, 416 U.S. 396, 413-14 (1974). See also
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Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (Martinez
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standard applies when assessing the constitutionality of
regulations concerning outgoing correspondence, but
regulation of incoming mail is subject to more deferential
reasonableness standard).
The challenged New Hampshire State Prison practice
of requiring non-privileged outgoing mail to be submitted for
inspection in unsealed envelopes satisfies both Martinez
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criteria. First, the practice furthers an important
governmental interest -- security. As the Supreme Court has
recognized, ["p]erhaps the most obvious example of
justifiable censorship of prisoner mail would be refusal to
send . . . letters concerning escape plans or containing
other information concerning proposed criminal activity."
Procunier v. Martinez, 416 U.S. at 413. Plaintiff would
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argue that his mail, directed to a school in an envelope
supplied by the school, presented no security problem because
escape or criminal activity plans could not fruitfully be
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transmitted in this manner. Plaintiff is wrong. Were the
institution not a legitimate one or were the school's mail
room employee in cahoots with plaintiff, security concerns
could well be implicated.
Plaintiff argues that inspection of outgoing
correspondence cannot rationally be justified as a security
measure given, plaintiff says, that prison officials do not
monitor prisoners' telephone calls or conversations with
visitors, means by which prisoners could just as easily
communicate escape plans. Plaintiff cites to a number of
older cases which employed such reasoning in striking down
outgoing mail inspection practices. We, however, rejected a
similar argument in Feeley v. Sampson, 570 F.2d 364, 374 (1st
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Cir. 1978). There, the district court had reasoned that
"because detainees' visits went unmonitored, escape plans or
contraband `drops' could be plotted regardless of any
surveillance of correspondence," and concluded that
inspection of outgoing mail could therefore not be upheld on
security grounds. Id. at 374. We rejected that reasoning
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and concluded, in substance, that unmonitored mail increased
prisoners' opportunities for plotting escape and consequently
surveillance was justified as a security measure. We adhere
to that position.
The second Martinez requirement, that the
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limitation be no greater than necessary, is also met. The
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limitation is fairly minimal -- plaintiff can correspond with
the school provided he allows prison officials to check the
correspondence -- and there is no other way to determine
whether escape plans or other proscribable matter is being
sent except by looking at the correspondence. Plaintiff's
constitutional rights were not violated. See United States
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v. Whalen, 940 F.2d 1027, 1035 (7th Cir.) ("it is well
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established that prisons have sound reasons for reading the
outgoing mail of their inmates"), cert. denied, 112 S. Ct.
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403 (1991); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir.
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1986) (inspection of non-privileged outgoing mail does not
violate prisoners' First Amendment rights); United States v.
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Kelton, 791 F.2d 101 (8th Cir.) (prisoner's Fourth Amendment
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rights not violated by prison official's inspection and
copying of prisoner's outgoing mail), cert. denied, 479 U.S.
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989 (1986).
Nor were plaintiff's rights under the Family
Educational and Privacy Rights Act, 20 U.S.C. 1232g,
violated. Nothing in that Act requires prison officials to
take plaintiff's word that the envelope contained transcripts
and accept the sealed mailing.
Affirmed.
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