Jenkins, George v. Huntley, Edward W. , 235 F. App'x 374 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2007*
Decided May 23, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3622
GEORGE JENKINS, JR., Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 06 C 3657
EDWARD W. HUNTLEY and
ROGER E. WALKER, JR., Virginia M. Kendall,
Defendants-Appellees. Judge.
ORDER
George Jenkins brought suit under 42 U.S.C. § 1983 claiming that the
Director and the Chief Legal Counsel of the Illinois Department of Corrections
violated his First Amendment rights by allowing prison employees to open, outside
*
The appellees notified this court that they were never served with process in
the district court and would not be filing a brief or otherwise participating in this
appeal. After examining the appellant’s brief and the record, we have concluded
that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See Fed. R. App. P. 34(a)(2).
No. 06-3622 Page 2
his presence, correspondence that he characterizes as “legal mail.” The district
court dismissed the complaint prior to service, and Jenkins appeals. We affirm.
The following account is taken from the amended complaint and its
attachments. See Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004). While he was
incarcerated, Jenkins brought a § 1983 claim against prison officials that was
settled for $500. In the months after the settlement was reached, Jenkins wrote a
series of letters to the Cook County State’s Attorney’s Office inquiring when he
would receive his check. Jenkins intentionally misrepresented this outgoing
correspondence as legal mail because he had a negative balance in his inmate trust
account and could get free postage for legal mail. The responding letters from the
State’s Attorney’s Office were not marked “privileged,” and therefore prison officials
opened them outside Jenkins’s presence to search for contraband. Prison officials
also opened a letter to Jenkins from the Attorney Registration and Disciplinary
Commission, which declined Jenkins’s request for an investigation of an Assistant
State’s Attorney for failing to issue his settlement check promptly. Jenkins says he
was harmed when this incoming “legal mail” was opened because prison officials
“prematurely” learned about the settlement check and, when it was received,
applied the money toward his negative account balance rather than allowing him to
take it with him upon his release from prison.
Jenkins was out of prison when he filed his complaint, but the district court
still reviewed it prior to service because Jenkins sought leave to proceed in forma
pauperis. See Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). The district court
concluded that the incoming correspondence was not privileged under valid IDOC
regulations and thus could be inspected outside Jenkins’s presence. In any event,
the court reasoned that Jenkins had no standing to seek prospective relief because
he was no longer incarcerated, and he could not recover damages because the
defendants enjoyed qualified immunity. Accordingly, the court dismissed the
complaint under 28 U.S.C. § 1915(e)(2)(B).
On appeal Jenkins argues that the district court erred by failing to adopt the
reasoning of a Sixth Circuit case, Muhammad v. Pitcher, 35 F.3d 1081, 1084-86 (6th
Cir. 1994), which held unconstitutional a Michigan Department of Corrections
policy that treated incoming correspondence from the State Attorney General’s
Office as ordinary mail rather than legal mail. Jenkins urges us to reverse the
district court’s judgment because, in his view, the IDOC policy “effectively chills
access to the courts or a governmental entity.”
Although prisoners have a First Amendment right to send and receive mail,
it is well established that prison officials may inspect mail for contraband. Wolff v.
McDonnell, 418 U.S. 539, 575-77 (1974); Rowe, 196 F.3d at 782. Legal mail is
afforded greater protection because of the potential for interfering with a prisoner’s
No. 06-3622 Page 3
access to the courts, and thus prison officials risk violating an inmate’s
constitutional rights if they open, without him being present, an incoming letter
“that is marked with an attorney’s name and a warning that the letter is legal
mail.” Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). Regulations
applicable to all IDOC facilities extend protection, not just to “legal mail,” but to 11
different categories of “incoming privileged mail,” of which legal mail is just one.
Ill. Admin. Code tit. 20, § 525.110(f). But for incoming mail to be treated as
privileged, it must be clearly marked as “privileged,” id. § 525.140(a), and it still
may be opened in the recipient’s presence to inspect for contraband, verify the
identify of the sender, and determine that it contains only legal or official materials,
id. § 525.140(b). And we have held that there is no constitutional impediment
created by prison regulations requiring that mail from attorneys be identified as
privileged in order to receive special treatment. Martin v. Brewer, 830 F.2d 76, 77-
78 (7th Cir. 1987).
The district court apparently concluded that mail from a State’s Attorney’s
Office needs no special protection, but we don’t have to decide that question in order
to conclude that Jenkins’s complaint fails to state a claim. Mail from a State’s
Attorney’s Office, although not defined in the IDOC regulations as “legal mail,” Ill.
Admin. Code tit. 20, § 525.110(h)(1), is among the classes of “privileged” mail
entitled to exactly the same protection as legal mail, id. § 525.110(f)(3). Like any
privileged mail, however, the sender must identify it as such, yet none of the
envelopes from the State’s Attorney’s Office were labeled as “privileged.” Prison
employees were thus free to open and inspect them outside Jenkins’s presence. See
id. § 525.140(a), (d). As for the correspondence from the Attorney Registration and
Disciplinary Commission, the regulations neither define such mail as legal or
privileged. See id. § 525.110(f), (h). The mere fact that a letter comes from a legal
organization does not require prison officials to treat it as privileged, particularly
when the inmate is neither represented nor seeking to be represented by one of the
organization’s attorneys. See Kaufman, 419 F.3d at 686. And, indeed, the ARDC
letter contained no privileged information; it simply declined Jenkins’s request that
it investigate an Assistant State’s Attorney over an alleged delay in issuing his
settlement check.
There may be some disagreement among the circuits concerning the scope of
the definition of legal mail, see Sallier v. Brooks, 343 F.3d 868, 876-77 (6th Cir.
2003), but there is no dispute concerning the constitutionality of regulations
requiring that prison mail from attorneys be labeled in order to receive special
treatment, see e.g., Wolff, 418 U.S. at 576-77; Boswell v. Mayer, 169 F.3d 384, 388-
89 (6th Cir. 1999); Henthorn v. Swinson, 955 F.2d 351, 352-54 (5th Cir. 1992);
Martin, 830 F.2d at 77-78; Harrod v. Halford, 773 F.2d 234, 235-36 (8th Cir. 1985).
Jenkins’s reliance on the Sixth Circuit’s decision in Muhammad is misplaced
because, unlike the Michigan DOC regulations at issue in that case, the IDOC
No. 06-3622 Page 4
regulations provide heightened protection to properly labeled privileged mail. See
Muhammad, 35 F.3d at 1082. Jenkins could not avail himself of that protection,
either because he neglected to ask the State’s Attorney’s Office to label its
correspondence as privileged, or because the sender did not think the
correspondence was privileged. By annexing copies of the unlabeled envelopes to
his amended complaint, Jenkins has pleaded himself out of court.
AFFIRMED.