Inmates of the South Carolina Central Correctional Institute (hereinafter “Central”) brought this action pursuant to 42 U.S.C. § 1983 challenging the constitutionality of prison mail procedures which allow correspondence from attorneys to be opened and inspected outside thе presence of the inmate-addressee. The district court dismissed this claim on the ground that a prior suit upholding the constitutionality of the Department of Corrections’ mail regulations was binding on plaintiffs under the doctrine of res judicata. We reverse and remand for further proceedings.
I.
Plaintiff Niles Crowe is serving a life sentence at Central, and plaintiff Daniel
The mail regulations in question are included in the Inmate Guide, Revised 1972, a booklet prepared by the Department of Corrections and distributed to Central’s inmates. The provision governing mail from attorneys 3 states that correspondence of this type will be subject to inspection, which under the regulations means that the “mail will be opened and searched for contraband, but will not be read.” App. at 14.
These regulations were the subject of an earlier lawsuit, Hamilton v. South Carolina Department of Corrections, CA No. 72-273 (D.S.C., filed Feb. 27, 1974). That suit, certified as a class action, challenged the Department of Corrections’ regulations governing grooming, mail, and sоlitary confinement. With regard to the mail procedures, the district court held that “the mail regulations in 1971 and now are Constitutional and not in violation of plaintiffs’ civil rights.” Appellants in the present suit concede that they “were unquestionably members of the class which was represеnted” in Hamilton. Brief at 4.
In response to plaintiffs’ motion for an order convening a three-judge court, the court below dismissed their constitutional claim on the ground that it was barred by the
Hamilton
decision. He further concluded that the Supreme Court’s decision in
Wolff v. McDonnell,
II.
The principle of res judicata, although not wholly applicable in habeas corpus proceedings, is fully applicable in prisoners’ civil rights suits brought under § 1983.
Preiser v. Rodriguez,
The general rule of res judicata applies to repetitious suits involving the same cause of action. . . . The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a сause of action, the parties to the suit and their privies are thereafter bound “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purрose.”
Whether res judicata is applicable in the present suit therefore depends on whether this suit involves the same cause of action as was involved in Hamilton. There is no mechanical test that can be applied in answering this question. However, the Supreme Court’s rеsolution of this issue in analogous cases does provide some guidance.
In
Lawlor v. National Screen Service Corp.,
While the 1943 judgment рrecludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case. . Under these circumstances, whether the defendants’ conduct be rеgarded as a series of individual torts or as one continuing tort, the 1943 judgment does not constitute a bar to the instant suit.
Id.
at 328,
Similarly, with regard to tax litigation, the Supreme Court has concluded that each tax year gives rise to a new cause of action. Therefore, “a judgment on the mеrits is res judicata as to any subsequent proceeding involving the same claim and the same tax year.”
Commissioner v. Sunnen,
We glean from these eases that res judi-cata has very little applicability to a fact situation involving a continuing series of acts, for generally each act gives rise to a new cause of action. However, this does not mean that the parties are free to keep coming into court and litigating the same issues over and over. As we discuss below, even where different causes of action are involved, the principle of collateral estoppel may apply.
We therefore conclude that the Hamilton judgment does not bar the present action under the principle of res judicata. Although that judgment precludes plaintiffs from relitigating the constitutionality of defendants’ acts occurring before February 27, 1974, res judicata does not prevent them from challenging acts occurring after the Hamilton judgment was entered.
As we noted above, however, plaintiffs still might be precluded from pursuing their clаim by the principle of collateral estoppel. Although often confused with res judicata, collateral estoppel is a rule of different applicability and effect. The Supreme Court has explained the distinction:
But where the second action between the same parties is upon a different cause or demand, the principle of res judicata is applied more narrowly. In this situation, the judgment in the prior action operates as an estoppel, not as to matters which might have been litigated and determined, but “only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” . . . [T]he parties are free to litigate points which were not at issue in the first proceeding, even though such points might have been tendered and deсided at that time.
Sunnen,
Our review of the Hamilton judgment сonvinces us that the precise issue sought to be litigated here, whether prison officials can open mail from lawyers outside of the inmate-addressee’s presence, was not raised and adjudicated in that suit. At page 16 of Judge Martin’s opinion in Hamilton, App. at 37, the court gives its attention “to the allegation that opening, inspecting and censoring letters and packages violates the Constitution.” Judge Martin noted that “unrestricted” mail (from lawyers, court officials, etc.) was subject to inspection only without censorship. He viewed such inspection to prevent the introduction of contraband intо the prison as reasonable. But nowhere in his exhaustive and careful study of the problem does he reach the question of whether inspection of mail coming from lawyers might feasibly be accomplished in the presence of the addressee inmate, or whether dоing so is necessary to protect the Sixth Amendment right to counsel. We therefore conclude that plaintiffs are not barred by either res judicata or collateral estoppel from now litigating that issue.
III.
The district court having erroneously dismissed plaintiffs’ constitutional clаim, we remand for proceedings on the merits. In doing so, we express our belief that the State has a compelling interest in assuring the security of its prisons and that whenever that need conflicts with the rights of prisoners the latter must yield. But that is not to say that administrators of penitentiariеs may unnecessarily infringe upon the Sixth Amendment right to counsel of inmates. Several other circuits have viewed favorably the claims of prisoners similar to the ones raised here. The First Circuit, in
Smith v. Robbins,
The Fifth Circuit has recently reached a similar conclusion. In
Taylor v. Sterrett,
We note that in several of the above cases the prison officials admittedly had been engaging in a practice of reading incoming mail from attorneys. See, e. g., Taylor v. Sterrett, supra, and Smith v. Robbins, supra. In such a context it is not unreаsonable for inmates to fear that prison officials will continue their practice of reading the incoming attorney mail if they are allowed to open it outside the inmates’ presence. In the present case, however, Central’s postmaster, Donald Brazеll, has submitted an affidavit stating that there is no censorship of incoming mail at Central and that letters are only inspected for contraband. App. at 11.
Upon remand, the district court should conduct an evidentiary hearing and find facts with respect to the following: (1) the
Our recitation of the decisions of other circuits is for the guidance of the district judge. Difficult questions such as this one cannot be decided rationally in a vacuum. The correct decision will depend upon the facts and the feasible alternatives, and we therefore express no opinion as to what, if anything, ought to be done by way of reconciling the right to counsel with the right of the State to assure the internal security of the institution.
REVERSED AND REMANDED.
Notes
. The district court did not certify this suit as a class action.
. Plaintiffs also alleged that their legal mail was being censored and that their mailing privileges were unduly restricted to only five days per week. The district court dismissеd these claims. In this appeal plaintiffs pursue only their claim regarding their right to be present when their incoming attorney mail is opened.
. Categories of Correspondence
a) Unrestricted
1. You will be permitted to write to members of this group without restriction as to frequency and length of letters.
2. Mail to members of this group will be immune frоm both censorship and inspection. Mail from members of this group will be subject to inspection only. The following groups and persons are approved for the unrestricted correspondence class: a) Officers of Federal, State and local Courts —(attorneys, clerks, and judges);
. In
Wolff
the Supreme Court approved prison regulations requiring incoming mail identified as being from an attorney to be opened and searched in the presence of the prisoner. The Court noted that this regulation was “all,
and perhaps even more,
than the Constitution requires.”
. Because the question is not briefed, we do not decide whether the convening of a three-judge court will be necessary. But we hold that a single district judge can conduct the evidentia-ry hearing, and thereafter decide whether he should request the convening of a three-judge court depending upon his interpretation of the recent act repealing 28 U.S.C. § 2281 and his view of the merits.