Your Right to Communicate With the Outside World - Columbia Law ...

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Ch. 19 YOUR RIGHT TO COMMUNICATE WITH THE OUTSIDE WORLD 517However, one federal district court case found that a ten-day delay in sending a prisoner’s legal mail did notviolate his limited constitutional right to freedom of association. 103 The mail was initially delayed because ofinsufficient funds on two occasions. 1042. Your Right to Meaningful Access to the Courts and Assistance of CounselYou have a constitutional right to meaningful court access and assistance of counsel. 105 In Davidson v.Scully, the Second Circuit held that restrictions on a prisoner’s legal mail can violate this right. 106 Forexample, courts have stated that allowing prison officials to read mail to courts or between attorneys andprisoners can prevent prisoners from bringing abuses to the attention of courts because they fearretaliation. 107 Thus, even if your First Amendment claim fails because the restriction at issue is related to animportant government objective, you can still challenge the restriction if it prevents you from havingmeaningful court access.However, these claims will not likely succeed unless you also prove that there was some actual harm toyour ability to assert a legal claim. 108 In one recent New York case, the district court reiterated that to statea claim for denial of access to the courts, the plaintiff must show that the defendant’s actions actuallyhindered his pursuit of legal claims and caused actual injury. 109 The court determined that the prisoner inthis case experienced only inconvenience and a delay in sending outgoing mail, neither of which reach thethreshold. 110 Some courts have also required that the interference be “deliberate and malicious.” 111 In otheraccess to the courts); Gittens v. Sullivan, 670 F.Supp. 119, 123 (S.D.N.Y. 1987) (finding that “$1.10 per week for stampsand an additional advance of $36.00 for legal mailings satisfies the constitutional minimum for access to the courts”),aff’d, 848 F.2d 389, 390 (2d Cir. 1988). Even though this right has been cut back somewhat, the Court has clearly heldthat a state violates prisoners’ fundamental constitutional rights of access to the courts by failing to provide them withadequate legal library facilities. The right of access to the courts requires that prison officials assist prisoners in thepreparation and filing of meaningful legal papers by providing law libraries and adequate assistance from personstrained in the law. Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed. 2d 72, 83 (1977).103. See Branham v. Mansfield, No. 2:04-CV-286, 2009 U.S. Dist. LEXIS 87195 at *15 (W.D. Mich. 2009).104. See Branham v. Mansfield, No. 2:04-CV-286, 2009 U.S. Dist. LEXIS 87195 at *15 (W.D. Mich. 2009).105. See Bounds v. Smith, 430 U.S. 817, 821–23, 97 S. Ct. 1491, 1494–95, 52 L. Ed. 2d 72, 78–80 (1977)(reviewing the history of Supreme Court decisions that have established a right of access to the courts and the assistanceof counsel). But see Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996) (holding thata prisoner must prove that lack of necessary legal assistance or library actually hindered case). See Chapter 12 andChapter 9, Part H of the JLM for a full discussion of the right to effective assistance of counsel.106. Davidson v. Scully, 694 F.2d 50, 53 (2d Cir. 1982) (holding that prison officials who did not allow a prisoner tomail sealed letters to the Army Board for Corrections of Military Records, the Commanding Officer, United States ArmyReserve Components Personnel Center, the Judge Advocate General, and the American Civil Liberties Union violatedprisoner’s right to meaningful access to the courts).107. See Taylor v. Sterrett, 532 F.2d 462, 476 (5th Cir. 1976); Martin v. Brewer, 830 F.2d 76, 78–79 (7th Cir. 1987)(distinguishing incoming from outgoing mail to the courts on this ground).108. See Lewis v. Casey, 518 U.S. 343, 351, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606, 618 (1996) (holding theprisoner must prove his prison’s law library or legal assistance program was lacking in a way actually hindering hisefforts to pursue a legal claim); Bourdon v. Loughren, 386 F.3d 88, 98–99 (2d Cir. 2004) (holding appointment of counselto a prisoner was sufficient to satisfy the prisoner's right of access to the courts; the attorney's performance did not haveto be “effective” as long as it did not prevent the prisoner from pursuing a particular legal claim); DeLeon v. Doe, 361F.3d 93, 94 (2d Cir. 2004) (dismissing prisoner’s claim for denial of court access when prison officials caused delays to hislegal mail); Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (holding interference with mail, if it reaches its intendeddestination, is insufficient to show actual injury); Taylor v. Coughlin, 29 F.3d 39, 40 (2d. Cir. 1994) (per curiam) (holdingprison’s failure to supply prisoners with adequate typewriters did not cause any injury; prisoners were able to access thecourts through handwritten documents); Jones v. Smith, 784 F.2d 149, 152 (2d Cir. 1986) (holding 30-day deprivation ofaccess to prison law library during confinement in Special Housing Unit was insufficient to claim lack of meaningfulaccess to courts); Richardson v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988) (holding that the loss of outgoing courtdocuments was not a sufficient injury because the error was noted in time to allow the plaintiff to re-file the documents);Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (holding that the confiscation of a tape mailed to a prisonerdid not qualify as a sufficient injury because the prisoner had access to the tape when preparing his civil action, and atthe time the tape was taken, the prisoner’s case had already been settled). But see Key v. Artuz, No. 95 CV 0392 (HB),1995 U.S. Dist. LEXIS 13201, at *5–6 (S.D.N.Y. Sept. 13, 1995) (unpublished) (holding that a prison’s mishandling oflegal mail that resulted in the prisoner missing a court-imposed deadline was a sufficient showing of injury).109. See Wesolowski v. Washburn, 615 F.Supp.2d 126, 129 (W.D.N.Y. 2009).110. See Wesolowski v. Washburn, 615 F.Supp.2d 126, 129 (W.D.N.Y. 2009).111. Smith v. O’Connor, 901 F. Supp. 644, 649 (S.D.N.Y. 1995) (holding that although corrections officialsdestroyed a prisoner’s personal property, including his legal papers, the prisoner failed to show prejudice and thus failed
518 A JAILHOUSE LAWYER’S MANUAL Ch. 19words, they require that the prison authorities have intentionally interfered with a prisoner’s legal mail withthe purpose of denying him access to the courts. Many courts, however, do not mention this additionalrequirement. 1123. Attorney-Client PrivilegeFor communications with your attorney, you have the additional shield of the attorney-client privilege. 113This privilege allows you to refuse to disclose, and to prevent any other person from disclosing, confidentialcommunications between you and your attorney. The protection that it provides is limited in two ways. First,because the privilege only protects you against disclosure of your legal correspondence, it may only be usedto challenge the reading of your legal mail, not the inspection of it. 114 However, even though prisons maydeclare temporary emergencies requiring them to open your mail, they may not continue to justify mailopening by stating that the emergency is indefinite. 115 Second, there are exceptions to the kinds ofcommunication that are protected by the privilege. For the attorney-client privilege to apply, you mustintend for the communication to remain confidential. 116 In other words, if you disclose information tosomeone other than your attorney, this information will no longer be considered privileged. Disclosure torepresentatives of the attorney, such as his or her secretary or student clerk, however, is considered thesame as communication with the attorney and is covered under the privilege. 117 An exception is that youcannot claim the attorney-client privilege if the communication furthers future wrongdoing. 118 It does notmatter if your communications with your lawyer are written or oral; both are equally privileged. 1194. Legal Correspondence and New York State and City RegulationsThe following is a discussion of additional New York rules governing legal mail restrictions. Prisoners inother states must consult their state and local regulations. The New York Department of CorrectionalServices regulations state incoming legal mail should be opened and examined only in the presence of theto state a claim that he was denied access to the courts); Herrera v. Scully, 815 F. Supp. 713, 723–24 (S.D.N.Y. 1993)(holding that prison officials did not act in an “intentional and deliberate manner to deprive [the prisoner] of hisconstitutional rights by preventing his legal mail from arriving at court in a timely manner.”).112. See, e.g., Key v. Artuz, No. 95 CV 0392 (HB), 1995 U.S. Dist. LEXIS 13201, at *7 (S.D.N.Y. Sept. 13, 1995)(unpublished) (denying defendant motion to dismiss where interference caused prisoner to miss court-imposed deadline,the Court stated that the plaintiff’s failure to allege invidious intent did not fall short of the pleading standards due tothe Court’s liberal reading of the complaint as if alleging this element).113. Statute generally sets forth this privilege. In New York, the relevant statute can be found at N.Y. C.P.L.R.4503.1 (McKinney 2007).114. Frye v. Henderson, 474 F.2d 1263, 1264 (5th Cir. 1973) (per curiam) (stating opening mail to check forcontraband is legitimate); People v. Poe, 193 Cal. Rptr. 2d 479, 481, 145 Cal. App. 3d 574, 578 (Cal. Ct. App. 1983) (citingWolff v. McDonnell, 418 U.S. 539, 577, 94 S. Ct. 2963, 2985, 41 L. Ed. 2d 935, 963 (1974)). Some courts have even heldprison officials can open mail from a court outside your presence, since court documents are public records and thereforenot subject to the same protections. See Martin v. Brewer, 830 F.2d 76, 78–79 (7th Cir. 1987) (incoming court mail is notprivileged and does not involve the same concerns about retaliation for filing a lawsuit as outgoing mail from a prisonerto a judge); Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996) (finding incoming mail from a court not “legal mail”).115. See Jones v. Brown, 461 F.3d 353, 362–63 (3d Cir. 2006) (finding that though a risk of anthrax terrorismmight have justified temporarily opening prisoner mail after September 11, 2001, there was no rational basis forcontinuing this policy more than three years later).116. United States v. Robinson, 121 F.3d 971, 976 (5th Cir. 1997) (holding that the fact that a meeting between aprisoner and his attorney “take[s] place away from public view” is not enough to prove that the prisoner intended thecommunication between them to be confidential); Colton v. United States, 306 F.2d 633, 638 (2d Cir. 1962) (holding thatin the case of an attorney preparing a tax return, no privilege could be expected since the form is not intended to beconfidential but “is given for transmittal by the attorney to others”); Priest v. Hennessy, 51 N.Y.2d 62, 68–69, 409 N.E.2d983, 986, 431 N.Y.S.2d 511, 514 (1980)(“[N]ot all communications to an attorney are privileged. In order to make a validclaim of privilege, it must be shown that the information sought to be protected from disclosure was a ‘confidentialcommunication’ made to the attorney for the purpose of obtaining legal advice or services.”) (citing Matter of JacquelineF., 47 N.Y.2d 215, 219, 391 N.E.2d 967, 969; 417 N.Y.S.2d 884, 886, (1979); People ex rel. Vogelstein v Warden of CountyJail of County of N.Y., 150 Misc 417, 717–18, 270 N.Y.S. 362, 366 (1934); 8 Wigmore § 2292).117. See N.Y. C.P.L.R. 4503(a)(1) (2007).118. In re Associated Homeowners & Businessmen’s Org., Inc., 87 Misc. 2d 67, 68, 385 N.Y.S.2d 449, 450 (Sup. Ct.N.Y. County 1976) (pointing towards the exception for communications “in furtherance of fraudulent or other unlawfulacts” as reason for a denial of an application to quash subpoena of an attorney).119. LeLong v. Siebrecht, 196 A.D. 74, 76, 187 N.Y.S. 150, 150 (2d Dept. 1921).
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