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Bonner v. Outlaw: PRISIONER'S CIVIL RIGHTS - prisoner right to notice of rejected communications clear; no immunity for outlaw official

1The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
United States Court of Appeals
No. 07-3676
Vernon Bonner, *
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
T. C. Outlaw, *
Defendant-Appellant. *
Submitted: October 15, 2008
Filed: January 9, 2009
Before BYE, JOHN R. GIBSON, and SMITH, Circuit Judges.
BYE, Circuit Judge.
T. C. Outlaw filed an interlocutory appeal from the district courts1 denial of his
motion to dismiss, or for summary judgment, on the basis of qualified immunity. We
2Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narcotics, 403 U.S.
388 (1971).
Vernon Bonner was an inmate at the Federal Correctional Institution (FCI)
in Waseca, Minnesota. T. C. Outlaw was the warden at FCI. While Bonner was
incarcerated at FCI, his attorney, Thomas J. Organ, twice sent him correspondence,
which included trial transcripts Bonner allegedly needed to pursue other litigation.
The correspondence was rejected by prison officials because they were not in
compliance with prison regulations pertaining to the receipt of packages. Bonner
was not notified his mail was rejected either time. Bonner eventually learned of the
rejections from his attorney, and he completed the grievance process with respect to
the rejection of the packages and the lack of notice that those packages were rejected.
Bonner filed a Bivens2 action against Outlaw, the Federal Bureau of Prisons,
and Sue McIntosh, a Bureau of Prisons employee who was assigned to the mail room.
Bonner alleged violations of the First, Fifth, and Sixth Amendments to the U.S.
Constitution. Bonner claimed the rejection of the packages violated his constitutional
rights, as did Outlaws failure to notify him of the rejections. The defendants filed a
motion to dismiss, which the district court granted. On appeal, this Court affirmed the
dismissal of all claims based on the actual rejections of the packages. Bonner v. Fed.
Bur. of Prisons, 196 F. Appx 447, 448 (8th Cir. 2008) (per curiam). We concluded
the rejection of the packages did not violate Bonners constitutional rights because
they did not comply with valid prison regulations. Id. We noted, however, [i]nmates
do have a right to procedural due process . . . when their mail is rejected. Id. Thus,
we remanded Bonners procedural due process claim against Outlaw because the
district court did not address Bonners allegation that defendant T. C. Outlaw failed
to notify him that his incoming mail had been returned. Id.
On remand, Outlaw filed a motion to dismiss for failure to state a claim or for
summary judgment. Among other grounds for relief, Outlaw asserted the defense of
qualified immunity. The district court denied Outlaw qualified immunity, concluding
Bonner alleged the violation of a clearly established constitutional right. Outlaw filed
the instant interlocutory appeal challenging the district courts denial of qualified
Outlaw can appeal the district courts denial of qualified immunity pursuant to
the collateral order doctrine. Lindsey v. City of Orrick, 491 F.3d 892, 897 (8th Cir.
2007). This court reviews de novo the district courts denial of qualified immunity.
Brown v. Fortner, 518 F.3d 552, 558 (8th Cir. 2008). To determine whether Outlaw
is entitled to qualified immunity, we engage in a two-step analysis. First, we ask
whether, taking the facts in the light most favorable to the injured party, the alleged
facts demonstrate that [Outlaw] violated a constitutional right. Lindsey, 491 F.3d at
897 (alteration added) (quoting Clemmons v. Armontrout, 477 F.3d 962, 965 (8th Cir.
2007)). If so, we next ask whether the right is clearly established or, to put it another
way, whether it would be clear to [Outlaw] that [his] conduct was unlawful in the
situation [he] confronted. Id. (alterations added) (quoting Clemmons, 477 F.3d at
Taking the facts in the light most favorable to Bonner, they demonstrate Outlaw
violated Bonners constitutional right to procedural due process by failing to notify
him that his incoming mail had been returned. To state a procedural due process
violation, Bonner must first demonstrate the deprivation of a protected liberty or
property interest. Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). If he
does so, the amount of process due Bonner is determined by balancing the specific
interest affected, the likelihood the challenged action would result in an erroneous
deprivation of that right, and the burden of providing additional procedures, including
administrative costs and burdens. Id.; see Matthews v. Elridge, 424 U.S. 319, 335
In Procunier v. Martinez, the Supreme Court held [t]he interest of prisoners
and their correspondents in uncensored communication by letter, grounded as it is in
the First Amendment, is plainly a liberty interest within the meaning of the
Fourteenth Amendment even though qualified of necessity by the circumstance of
imprisonment. 416 U.S. 396, 417 (1974), overruled on other grounds by,
Thornburgh v. Abott, 490 U.S. 401 (1989). As such, the decision to censor or
withhold delivery of a particular letter must be accompanied by minimum procedural
safeguards. Id. The Court approved a requirement that an inmate be notified of the
rejection and have a reasonable opportunity to protest the decision, concluding such
requirements do not appear to be unduly burdensome. Id.
Outlaw argues Procunier is inapplicable because its holding applies to letters,
not to the packages rejected in this case. Outlaws argument fails, however,
because the reasoning of Procunier applies to all forms of correspondence addressed
to an inmate. It is the inmates interest in uncensored communication that is the
liberty interest protected by the due process clause, regardless of whether that
communication occurs in the form of a letter, package, newspaper, magazine, etc.
Thus, whenever prison officials restrict that right by rejecting the communication, they
must provide minimum procedural safeguards, which include notice to an inmate that
the correspondence was rejected. See id. Although Procunier discusses letters, that
is because letters were simply the form of correspondence at issue in that specific
case. Nothing about the reasoning of Procunier justifies treating packages differently
than letters for purposes of the notice that should be given an inmate when
correspondence addressed to that inmate is rejected. Courts, including this one, have
routinely rejected the distinction Outlaw advances here and have applied Procunier
3As noted previously, the decision to reject the packages is no longer at issue
in this case.
to numerous forms of correspondence other than letters. See Ping v. Raleigh, No. 98-
2739, 2000 WL 59539, at *1 (8th Cir. Jan. 24, 2000) (holding due process rights apply
to rejection of "play-by-mail games"); Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir.
2002) (holding due process rights apply to rejection of Georgetown Law Journal);
Krug v. Lutz, 329 F.3d 692, 697 (9th Cir. 2003) (holding due process rights apply to
rejection of subscription magazines); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th
Cir. 2004) (holding due process rights apply to rejection of newspapers); Montcalm
Publg Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996) (holding due process rights
apply to rejection of subscription magazines); Hopkins v. Collins, 548 F.2d 503, 504
(4th Cir. 1977) (holding due process rights apply to rejection of newspapers).
Outlaw, citing several cases, argues packages have unique characteristics and
pose greater security concerns than other types of correspondence, thus justifying
different treatment. See Bell v. Wolfish, 441 U.S. 520, 555 (1979) (reversing court
of appeals decision striking down prison policies governing the amount of packages
an inmate could receive, noting such packages are handy devices for the smuggling
of contraband.); Weiler v. Purkett, 137 F.3d 1047, 1050 (8th Cir. 1998) (upholding
prison regulation limiting receipt of packages). These cases, however, concern an
inmates First Amendment rights with respect to receiving packages, not an inmates
due process rights to notice when those package are rejected. While there may be
valid reasons for treating packages differently than letters in terms of an inmates right
to receive the correspondence, we see no justification for treating packages differently
than letters with respect to the notice that should be provided to an inmate once a
package is rejected.3
To support his interpretation of Procunier, Outlaw relies on a Bureau of Prisons
regulation governing an inmates notification of rejected correspondence, which
When correspondence is rejected, the Warden shall notify the sender in
writing of the rejection and the reasons for the rejection. The Warden
shall also give notice that the sender may appeal the rejection. The
Warden shall also notify an inmate of the rejection of any letter
addressed to that inmate, along with the reasons for the rejection and
shall notify the inmate of the right to appeal the rejection.
28 C.F.R. 540.13. Outlaw argues this regulation distinguishes between letters and
other correspondence, requiring an inmate be notified for rejections of the former but
not the latter. He contends the regulation requires notice to a sender when all
correspondence is rejected, but notice to an inmate only when a letter addressed to
that inmate is rejected. In contrast, Bonner claims the regulation does not support
Outlaws interpretation, arguing the regulation is, at best, silent about whether an
inmate should receive notice when something other than a letter is rejected.
We need not decide whether 28 C.F.R. 540.13 authorized Outlaws decision
not to give Bonner notice his packages were rejected. Even if the regulation does
make the distinction Outlaw argues here, the constitutionality of his conduct is
governed by case law, not regulations. For the reasons previously explained, the case
law is clear that an inmate has a right to procedural due processincluding
noticewhenever any form of correspondence addressed to that inmate is rejected.
Outlaw argues that because his decision not to give notice was authorized by
28 C.F.R. 540.13, we should analyze his conduct under the more deferential
standard announced in Turner v. Safley, which allows prison rules to restrict a
prisoners constitutional rights if they are reasonably related to legitimate penological
interests and are not an exaggerated response to such objectives. Turner v. Safley,
482 U.S. 78, 87 (1987). In determining the reasonableness of a regulation restricting
a constitutional right, courts consider: (1) whether there is a valid, rational
connection between the prison regulation 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) what impact accommodation of the
constitutional right will have on guards and other inmates, and on the allocation of
prison resources generally; and (4) whether there are ready alternatives for
furthering the government interest available. Beard v. Banks, 548 U.S. 521, 529
(2006) (quoting Turner, 482 U.S. at 89-90).
Outlaws argument is unpersuasive for several reasons. First, we doubt
Turners applicability to the restriction of a specific constitutional right, e.g., notice,
the Supreme Court has already declared applicable in a given situation. This is
especially true for rights of procedural due process, which involve weighing the exact
same considerationsgovernmental interest, alternative means of exercising the right,
and additional burdensas are also relevant in determining whether a prison
regulation is reasonable under Turner, and were already considered by the Supreme
Court in declaring such a right to exist in the first place. Second, even if Turner did
apply, we would conclude the regulation is unreasonable for those very same reasons.
The Supreme Court in Procunier weighed these same considerations and found
inmates are entitled to notice when correspondence addressed to them is rejected, and
Outlaw has not advanced any persuasive argument for treating packages differently.
There is no governmental interest advanced by the regulation, inmates do not have
alternative means of receiving notice, and there are no additional burdens placed on
prison officials by having to give notice. Therefore, we do not believe Turner affects
the analysis.
Outlaw next argues the facts do not demonstrate a constitutional violation
because he was not personally involved in the decision not to give Bonner notice his
packages were returned. In a Bivens action, there is no respondeat superior liability.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Defendants are liable
for their personal acts only, and a wardens general responsibility for supervising a
prison is insufficient to establish personal liability. Id. Outlaw argues, and submitted
a declaration in support, that he has no personal involvement in the day-to-day
operations of the mail room. Bonners complaint, however, sufficiently places
responsibility for the lack of notice on Outlaw. Primarily, Bonner may be able to
prove Outlaw was personally involved in creating, applying, or interpreting a policy
that failed to adhere to the notice requirements of Procunier. See Trudeau v. Wyrick,
713 F.2d 1360, 1367 (8th Cir. 1983). Additionally, if Outlaw had no role in deciding
what notice procedures to follow, Bonner may be able to prove Outlaw was liable for
failing to train or supervise mail room employees to follow the requirements of
Procunier. See id. Although Outlaws exact role is unclear at this stage of litigation,
it is important that we are reviewing a limited record in which discovery has yet to
take place. Bonners complaint sufficiently alleges Outlaws personal involvement.
Whether there is a genuine issue of fact concerning Outlaws personal involvement
for purposes of summary judgment is outside our jurisdiction to review on
interlocutory appeal. See White v. McKinley, 519 F.3d 806, 812-13 (8th Cir. 2008).
Outlaws final argument for the lack of a constitutional violation is that Bonner
did in fact receive notice from his attorney that his packages were rejected. Outlaw
relies on our statement in Nunley v. Department of Justice that a person cannot
complain about the constitutionality of the method used to provide notice when he or
she has received actual notice (assuming it is timely), for he or she has suffered no
harm. 425 F.3d 1132, 1139 (8th Cir. 2005). This argument fails, however, because
Bonner alleges he suffered harm from the delay in receiving notice. If true, then the
notice he ultimately received from his attorney was not timely. Whether Bonner did
in fact suffer harm from the delay in notice is an issue of fact outside our jurisdiction
to resolve at this stage in the litigation. See White, 519 F.3d at 812-13.
Bonners right to receive notice his packages were rejected was clearly
established. This Court has taken a broad view of what constitutes clearly
established law for the purposes of a qualified immunity inquiry. Lindsey, 491 F.3d
at 902 (quoting Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2005)). The contours
of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. Id. (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). The Supreme Court has changed the clearly established law
inquiry from a hunt for prior cases with precisely the same set of facts to asking
whether the official had fair notice [his or] her conduct was unconstitutional. Id.
Thus, officials can still be on notice that their conduct violates established law even
in novel factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741 (2002). The
question is whether the law gave the officials fair warning that their alleged conduct
was unconstitutional. Brown v. Fortner, 518 F.3d 552, 561 (8th Cir. 2008) (quoting
Young v. Selk, 508 F.3d 868, 875 (8th Cir. 2007)).
Outlaws conduct violated Bonners clearly established rights because the law
gave Outlaw fair warning his conduct was unconstitutional. Over thirty years ago,
the Supreme Court in Procunier declared that inmates have a due process right to
notice whenever correspondence addressed to them is rejected. See Procunier, 416
U.S. at 417. Outlaw argues he did not have fair notice Procunier applies to packages
because Procunier only discussed letters, and he reasonably relied on 28 C.F.R.
540.13 to support his interpretation of Procunier. We believe, however, such an
interpretation of Procunier strains credulity. The reasoning of Procunier clearly
applies to all forms of correspondence, even if the decision only discussed letters.
There is no valid reason for distinguishing between letters and packages: the inmates
liberty interest is the same and there is no additional administrative burden involved.
Moreover, even if Outlaws strained interpretation of Procunier was reasonable
shortly after the decision was issued, subsequent case law gave fair warning that
Procunier applies to more than just letters. Ping, 2000 WL 59539, at *1 (applying
Procunier to rejection of "play-by-mail games"); Sorrels, 290 F.3d at 972 (applying
Procunier to rejection of Georgetown Law Journal); Krug, 329 F.3d at 697 (applying
4As evidence for his argument it was not clearly established Procunier applied
to packages, Outlaw relies on 28 C.F.R. 540.13. Even if Outlaws interpretation of
the regulation is correct, however, we do not think an official can rely on a regulation
authorizing a course of conduct that case law overwhelming makes clear is
unconstitutional. Regardless of the regulation, courts have uniformly held that
Procunier applies to forms of correspondence other than letters.
Procunier to rejection of subscription magazines); Jacklovich, 392 F.3d at 433
(applying Procunier to rejection of newspapers); Montcalm Publg Corp., 80 F.3d at
109 (applying Procunier to rejection of subscription magazines); Hopkins, 548 F.2d
at 504 (applying Procunier to rejection of newspapers). Outlaw is unable to cite a
single case holding Procunier does not apply to a specific form of correspondence
addressed to an inmate. Thus, Outlaw had fair warning that Procunier applies to all
forms of correspondence, including the packages at issue in the present case. As such,
a reasonable official would understand that failing to give Bonner notice his packages
were rejected violates a constitutional right.4 Therefore, Bonner has alleged the
violation of a clearly established constitutional right.
Accordingly, we affirm the decision of the district court.


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