Brown v. Williams , 36 F. App'x 361 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 2 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILLY BROWN,
Plaintiff - Appellant, No. 01-2199
v. (D.C. No. CIV-00-1488-LH/LFG)
JOE WILLIAMS, Warden, Lea County (D. New Mexico)
Correctional Facility; and SARA
JOHNSON, Correctional Officer, Lea
County Correctional Facility,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered
submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Billy Brown, a state prisoner proceeding pro se, brought this action in
forma pauperis under 42 U.S.C. § 1983 alleging constitutional violations from the
conduct of prison officials with respect to Mr. Brown’s mail. In his original
complaint, Mr. Brown contended that on August 13 and on August 28, 2000,
prison officials mishandled correspondence with his attorney (the “legal
correspondence”). In his amended complaint, Mr. Brown alleged that prison
officials opened and reviewed a privileged letter from a radio station addressed to
him on November 16, 2000 and also unlawfully intercepted a outgoing letter to
the same radio station (the “media correspondence”). The district court sua
sponte dismissed, with prejudice, Mr. Brown’s claims regarding the media
correspondence, see 28 U.S.C. § 1915(e)(2), but did not address the allegations
concerning the legal correspondence. Mr. Brown appeals this decision and seeks
leave to proceed in forma pauperis. For the reasons stated below we affirm the
district court’s dismissal and deny Mr. Brown’s request to proceed in forma
pauperis.
I. DISCUSSION
A. Legal Correspondence
In his original complaint, Mr Brown contended that (1) on August 13, 2000
prison officials intercepted a package from his lawyer; and (2) that on August 28,
2000, prison officials mishandled, opened, withheld and altered correspondence
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from his attorney. He also contends that he sought administrative relief on these
claims. Mr. Brown’s attorney supplies an affidavit stating that he sent his client a
copy of a petition for review of the denial of post-conviction relief in Oregon.
Mr. Brown’s counsel also filed the petition with the Oregon Supreme Court. Mr.
Brown’s attorney learned a month later that his client never received the
correspondence.
The Defendants suggest that we need not consider the allegations regarding
tampering with legal correspondence, as they were part of the initial complaint
only, and Mr. Brown failed to reallege them in the amended complaint. See Fed.
R. Civ. P. 10(c). We are mindful of our duty to liberally construe pleadings of
pro se litigants. See Meade v. Grubbs , 841 F.2d 1512, 1526 (10th Cir. 1988). At
the same time, we acknowledge that such litigants must adhere to the same rules
of procedure as other litigants. See Green v. Dorrell , 969 F.2d 915, 917 (10th
Cir. 1992). Also, we need not manufacture issues for pro se parties. See National
Commodity and Barter Ass’n v. Gibbs , 886 F.2d 1240, 1244 (10th Cir. 1989).
Nevertheless, because Mr. Brown’s amended complaint clearly expresses the
intention to “add[] a claim,” Rec. doc. 9, at 1, we shall address all of his
contentions.
The Defendants note that as to the August 13, 2000 package that was
apparently lost, there was no deprivation of constitutional rights. They assert that
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because his attorney filed the document in Oregon state court, Mr. Brown cannot
claim denial of access to the courts. See Lewis v. Casey , 518 U.S. 343, 350-51
(1996) (noting that inmates have a right to receive legal advice from other
inmates only when it is a necessary “means for ensuring a ‘reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to
the courts.’”) (quoting Bounds v. Smith , 430 U.S. 817, 825 (1977)). Similarly,
Defendants claim there is no First Amendment violation because there is no
evidence of improper motive.
Regarding the August 28, 2000 package, Defendants admit to opening this
package in Mr. Brown’s presence. The package, however, was not marked as
legal mail and had no return address on the outside of the box to suggest the
return address.
We review de novo the district court’s decision to dismiss the complaint
under § 1915(e)(2) , taking the allegations of the complaint as true. See Curley v.
Perry, 246 F.3d 1278, 1281 (10th Cir. 2001). There is no evidence that the
Defendants caused any interference with either the August 13 or the August 28,
2000 package. The Oregon court received the petition, so the loss of the August
13 package did not constitute interference with Mr. Brown’s access to the courts.
Likewise, there is no evidence of improper motive, so Mr. Brown cannot assert a
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First Amendment violation. The district court properly dismissed Mr. Brown’s
claims with respect to the August 13 package.
Additionally we note that Mr. Brown ultimately received the August 28,
2000 package. We agree with the Defendants that the August 28, 2000 incident
was “an isolated incident, without any evidence of improper motive or resulting
interference with [Mr. Brown’s] right to counsel or to access to the courts.”
Smith v. Maschner , 899 F.2d 940, 944 (10th Cir. 1990). In addition, prison
officials may open an inmate’s incoming legal mail to search for contraband in
the presence of the inmate. See Wolff v. McDonnell , 418 U.S. 539, 577 (1974).
Because the August 28, 2000 package was opened in Mr. Brown’s presence, this
incident “does not give rise to a constitutional violation.” Smith , 899 F.2d at 944.
B. Media Correspondence
In his amended complaint, Mr. Brown included allegations that prison
officials unlawfully opened correspondence addressed to him from a radio station
and intercepted an outgoing letter to the same address. We agree with the district
court’s conclusions that the interception of the of the two items was reasonable.
The incoming letter contained a check for Mr. Brown and was sent by his
godmother, who worked at the radio station. Although inmates are generally
allowed to correspond with the media, the correspondence was with Mr. Brown’s
godmother and was of a personal nature. The Defendants may regulate
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correspondence thought to be disguised as privileged media mail. See Guahardo
v. Estelle , 580 F.2d 748, 759 (5th Cir. 1978) (noting that the district court’s
decision did “not permit wholesale sending and receiving of mail to any address
purporting to be that of a media representative” and that “prison authorities may
have a reasonable time, when necessary, to verify that the addressee reflected on
the face of an envelope is actually a member of the editorial or reporting staff of a
media organization”). Likewise, we have stated that “[i]n the case of
unprivileged incoming and outgoing prison mail, regulation by prison officials is
‘essentially an administrative matter in which the courts will not intervene.’”
United States. v. Gordon , 168 F.3d 1222, 1228 (10th Cir. 1999) (quoting
Wilkerson v. Warden of U.S. Reformatory, El Reno , 465 F.2d 956, 957 (10th Cir.
1972)).
II. CONCLUSION
We have carefully reviewed Mr. Brown’s complaints and the record. For
substantially the same reasons underlying the district court’s May 22, 2001 Order,
we affirm the dismissal of Mr. Brown’s frivolous petition pursuant to 28 U.S.C. §
1915(e)(2) and we deny Mr. Brown’s motion to proceed in forma pauperis. Mr.
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Brown is advised that he must submit immediate payment of the unpaid balance
due in this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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