GRANT RUFFIN HAZE, III, Plаintiff - Appellant, v. DONNIE HARRISON; MS. SCOTT; MS. FREDRICK; OFFICER HALL; SERGEANT CLARK; WAKE COUNTY SHERIFF DEPARTMENT, Defendants - Appellees.
No. 18-7340
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Submitted: March 26, 2020. Decided: June 8, 2020
Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.
PUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-ct-03109-BO)
Affirmed in part, reversed in part, and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Harris and Judge Quattlebaum joined.
Lаwrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Paul Gerard Gessner, Harold F. Askins, WAKE COUNTY SHERIFF‘S OFFICE, Raleigh, North Carolina; Robert C. Montgomery, CAMPBELL UNIVERSITY SCHOOL OF LAW, Raleigh, North Carolina, for Appellees.
While awaiting trial, Grant Haze was held at two state detention facilities in Wake County, North Carolina. Haze alleges that during this time, prison officials opened, copied, misdirected, and otherwise interfered with his mail to and from his lawyer. Proceeding pro se, Haze filed this
I.
From July 2011 to September 2013, Haze, a pretrial detainee, was held at the Wake County Public Safety Center and the Wake County Detention Center. The mail policy in force at those facilities requires officers to inspect all incoming mail for contraband. Special rules apply to legal mail, which officers are to inspect in the inmate‘s presence. Officers are instructed not to read an inmate‘s legal mail.
Certain law enforcement officers and lawyers at the District Attorney‘s office may request that inmates be placed on the “Jail Mail Watch List.” When an inmate is on the Jail Mail Watch List, staff at the facilities send copies of the inmate‘s incoming and outgoing non-legal mail to the Wake County Sheriff‘s Office, which in turn forwards the mail to the party requesting it. However, staff at the facilities are trained not to open or copy an inmate‘s legal mail.
Haze alleges that prison officials improperly interfered with his legal mail on at least fifteen occasions. According to Haze, on seven occasions prison officials opened and cоpied his outgoing legal mail and forwarded it to the District Attorney‘s office. All but one of these letters were labeled “legal mail.” On five occasions, officials never delivered Haze‘s incoming legal mail or sent Haze‘s outgoing legal mail. And on three occasions, officials either read Haze‘s inсoming legal mail or opened it outside of his presence.2
Haze filed contemporaneous grievances with corrections officials regarding the interference with his legal mail. Haze claims that when he informed a prison officer that this interference violated his constitutional rights, the offiсer responded: “Sue me.”
Haze then brought this action against Defendants under
The district court granted summary judgment to Defendants. With respect to the First Amendment free speech claim, the court held that prison officials had acted only negligently, precluding liability under
A district court may grant summary judgment only if the movant “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
With the facts and standard of review in mind, we turn to Haze‘s claims.
II.
Haze‘s principal contention is that Defendants violated his First Amendment right to free speech. The First Amendment, as incorporated through the Fourteenth Amendment, prohibits states from “abridging the freedom of spеech.”
Opening an incarcerated person‘s legal mail outside of his presence can chill protected speech. As the Third Circuit has explained, this practice “strips those protected communications of their confidentiality,” inhibiting the incarcerated person‘s “ability to speak, protest, and complain openly, directly, and without reservation with the court.” Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (internal quotation marks omitted); see also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1210 (9th Cir. 2017) (“When a prisoner receives confidential legal mail that has been oрened and re-sealed, he may understandably be wary of engaging in future communication about privileged legal matters.“); cf. Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (prison‘s legal mail policy did not chill protected speech where it required such mail to be opened in the presence of the inmate, thus “insur[ing] that prison officials will not read the mail“).
Although incarcerated persons do not “shed [their] first amendment rights at the prison portals,” Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971), courts generally accord deference to the day-to-day judgments of prison officials, see Turner v. Safley, 482 U.S. 78, 89 (1987). Accordingly, as the Supreme Court has explained, even if a prison‘s policy or practiсe impinges upon constitutional rights, it remains “valid if it is reasonably related to legitimate penological interests.” Id. To determine whether this is so, courts apply the Turner Court‘s test, which governs the claims of both convicted prisoners and pretrial detainees like Haze. See Hause v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993).
The Turner test requires assessment of four factors:
(1) whether there is a valid, rational connection between the prison rеgulation and the legitimate governmental interest put forward to justify it; (2) whether there are alternative means of exercising the right that remain open to prison inmates; (3) the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocatiоn of prison resources generally; and (4) whether there are ready alternatives.
Greenhill v. Clarke, 944 F.3d 243, 253 (4th Cir. 2019) (internal quotation marks omitted). Although courts accord deference to the judgments of prison administrators,
With respect to the first Turner factor, Defendants contend that they acted reasonably in opening Haze‘s legal mail outside of his presence because of potential security risks. Haze had received contraband — internet printouts of cars, phones, and vacation homes — through non-legal mail; prison officials suspected that Haze had also received contraband through legal mail.
The argument fails. To be sure, Haze‘s receipt of the prohibited materials justifies the oрening of his legal mail to check for the presence of contraband. But Defendants do not explain, as they must, why they did so outside of Haze‘s presence.3 Because no reasonable causal nexus has been shown between Defendants’ ends and chosen means, the first Turner factor weighs in favor of Haze.
The remaining Turner factors, which Defendants do not address in their brief, also militatе in favor of Haze. There are few alternative means to assure incarcerated persons that they may freely communicate with counsel — given the nature of incarceration, “prisoners’ avenues of confidential communication with attorneys are limited.” Hayes, 849 F.3d at 1210. Opening legal mail in an inmate‘s presence would have little “impact . . . on guards and other inmates, and on the allocation of prison resources generally,” Turner, 482 U.S. at 90 — indeed, Defendants’ own policy requires officers to do so. Cf. Al-Amin v. Smith, 511 F.3d 1317, 1331 (11th Cir. 2008) (“[T]here is no showing that opening attorney mail in an inmate‘s presence burdens guards, prisoners, or the аllocation of prison resources; as noted above, DOC policy already requires opening attorney mail in an inmate‘s presence.“). And there is a “ready alternative[]” to the challenged practice, Turner, 482 U.S. at 90: “opening an inmate‘s attorney mail in his presence itself is the easy alternative; it ‘fully accommodates the prisoner‘s rights at de minimis cost to valid penological interests,‘” Al-Amin, 511 F.3d at 1331 (quoting Turner, 482 U.S. at 91).
Defendants advance several arguments in an attempt to evade this conclusion. First, they argue that their actions were, at most, negligent, foreclosing liability on this claim under
Next, Defendants contend that Haze has not shown that he was injured by the opening of his legal mail. In dоing so they fail to recognize that the infringement of Haze‘s First Amendment rights itself constitutes an injury. See Jones, 461 F.3d at 359-60 (“Unlike the provision of legal libraries or legal services, which are not constitutional ‘ends in themselves, but only the means for ensuring a reasonably adequate opportunity to present claimed violations of fundamental constitutionаl rights to the courts,’ protection of an inmate‘s freedom to engage in protected communications is a constitutional end in itself.” (citation omitted) (quoting Lewis, 518 U.S. at 351)); Al-Amin, 511 F.3d at 1334 (“We also agree . . . that the actual injury requirement applies to access-to-courts claims but not to free speech claims.“).
Finally, Defendants maintain that qualified immunity protects them from liability on this claim. “Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Defendants argue that courts had not clearly established, at the time of the alleged constitutional violations, that legal mail must be opened in an inmate‘s presence. This directly contradicts Defendants’ qualified immunity argument in the district court. There, Defendants contended that “[t]he only established law is that general mail may be opened and inspected outside of the presence of the inmate. ‘Legal Mail’ may be opened and inspected for contraband, but in the presence of the inmate.” See Defs.’ Mem. Supp. Summ. J. 26, ECF No. 104. Accordingly, Defendants have forfeited the argument on appeal. See United States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019).4
III.
Haze also maintains that in opening his legal mail outsidе of his presence, prison officials violated his Fourth Amendment rights. The Fourth Amendment, as incorporated through the Fourteenth Amendment, prohibits state actors from conducting “unreasonable searches and seizures.”
Nevertheless, Defendants are entitled to qualified immunity with respect to Haze‘s Fourth Amendment claim. Neither we nor the Supreme Court has previously considered the question of whether incarcerated persons have a reasonable expectation of privacy in their legal mail. Nor is there a consensus of persuasive authority on the matter — indeed, neither party identifiеs a single case, in any Circuit, where interference with an incarcerated person‘s legal mail was held to be violative of the Fourth Amendment. Consequently, Defendants have met their burden to show that their actions did not violate clearly established law for purposes of Haze‘s Fourth Amendment claim.
IV.
Finаlly, Haze contends that Defendants’ interference with his legal mail hindered his criminal defense, violating his First Amendment right of access to the courts and his Sixth Amendment right to the effective assistance of counsel. Haze has forfeited these arguments by failing to raise them in his informal brief. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014); United States v. Hairston, 754 F.3d 258, 260 n.3 (4th Cir. 2014). Accordingly, we need not decide whether Heck v. Humphrey bars these claims. See Heck, 512 U.S. at 486-87 (holding that
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.