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HENRY LAVADO, JR., Plaintiff-Appellant, v. PATRICK W.=20 KEOHANE, et al., Defendants-Appellees.
No. 91-6442
UNITED STATES COURT OF APPEALS FOR THE SIXTH=20 CIRCUIT
992 F.2d 601; 1993 U.S. App. LEXIS 8698

November 20, 1992, Submitted =
April 22, 1993, Decided
April=20 22, 1993, Filed
PRIOR HISTORY: = [**1] On=20 Appeal from the United States District Court for the Western District of = Tennessee. District No. 88-02891. Julia S. Gibbons, District Judge.
DISPOSITION: Affirmed in part, reversed = in part,=20 and remanded for further proceedings in accordance with this opinion.

COUNSEL: For HENRY LAVODO, JR., = Plaintiff -=20 Appellant: Henry Lavado, Jr., BRIEFED, 9101 Hillsborough Drive, Suite = I-209,=20 Tampa, FL 33615.

For PATRICK W. = KEOHANE, former=20 warden, F.C.I., Memphis, O. I. WHITE, Warden, PATRICK T. CASEY, = Associate=20 Warden, Defendants - Appellees: Ed Bryant, U.S. Attorney, 901-544-4231, = Tony R.=20 Arvin, Asst. U.S. Attorney, BRIEFED, 901-544-4231, Office of the U.S. = Attorney,=20 167 N. Main Street, Suite 1026 Federal Office Building, Memphis, TN = 38103.
JUDGES: Before: KEITH and JONES, = Circuit Judges;=20 and ALLEN, Senior District Judge. n1

n1 The = Honorable=20 Charles M. Allen, Senior United States District Judge for the Western = District=20 of Kentucky, sitting by designation.

OPINIONBY:=20 NATHANIEL R. JONES

OPINION: = [*603] =20 NATHANIEL R. JONES, Circuit Judge. Plaintiff-Appellant Henry Lavado, = Jr., a=20 former federal prisoner, appeals from orders denying discovery and = appointment=20 of counsel, and from the district court's order granting = Defendants-Appellees'=20 motion for judgment on the pleadings or, in the alternative, for summary = judgment. For the reasons set forth below, we affirm in part, reverse in = part,=20 and remand the case for further proceedings consistent with this = opinion.
I

Lavado = contends that,=20 while incarcerated in a federal prison, some of his incoming mail was=20 unconstitutionally opened outside his presence and read in his presence. = His=20 complaint encompasses several separate alleged violations listed = below.
A

On April = 21, 1987, Lavado=20 received a letter from "A. James Connell, [**2] Attorney at = Law."=20 The envelope was marked "LEGAL MAIL - OPEN IN THE PRESENCE OF INMATE = ONLY."=20 Lavado claims that this letter was opened outside his presence by an=20 unidentified mailroom officer.

On May 6, = 1987, Lavado=20 received a letter from "William Kuypers, Attorney At Law." The envelope = was=20 marked "SPECIAL MAIL." Lavado alleges that this letter was opened = outside his=20 presence by an unidentified mailroom officer.

On May 13=20 and 14, 1987, Lavado received a letter from the United States Department = of=20 Justice and a letter from the United States Department of the Treasury. = Both=20 envelopes were marked "SPECIAL MAIL." Lavado maintains that these = letters were=20 opened outside his presence by an unidentified mailroom officer.
On June 26, 1987, Lavado received a package from "Peter N. = Macaluso,=20 Attorney-at-Law." The package was marked "Special Mail - Open only in = the=20 presence of the inmate." Lavado asserts that this package was opened = outside his=20 presence by Defendant Roger M. Daughtrey.

On June 29,=20 1987, Lavado received a letter from the Florida Department of Law = Enforcement=20 whose envelope was marked "Special Mail - Open only in the presence of = the=20 inmate." It was allegedly read in Lavado's presence [**3] by=20 Defendant Albert J. Langa.

On July 2, 1987, = Lavado=20 received a letter from the Florida Department of Law Enforcement whose = envelope=20 was marked "PRISONER HAS REQUESTED THAT THIS BE MARKED 'SPECIAL MAIL.'" = This=20 letter was allegedly opened by Defendant Queen E. Thomas outside = Lavado's=20 presence.

On October 28, 1987, Lavado = received a letter=20 from the United States District Court [*604] for the = District of=20 Columbia. The envelope was marked "OPEN ONLY IN PRESENCE OF INMATE." = Lavado=20 maintains that this letter was opened outside his presence by an = unidentified=20 mailroom officer.

On November 9, 1987, = Lavado received=20 a letter from the United States Court of Appeals for the Eleventh = Circuit. The=20 envelope was marked "Special Mail - Open Only in Presence of Inmate." = Lavado=20 claims that this letter was opened outside his presence by an = unidentified=20 mailroom officer.

Finally, on February 8, = 1988, Lavado=20 received a letter from the American Civil Liberties Union of Florida. = The=20 envelope was marked "SPECIAL MAIL - OPEN ONLY IN THE PRESENCE OF THE = INMATE." No=20 attorney's name was listed on the envelope as sender. Lavado alleges = that the=20 letter was opened outside his presence by an unidentified mailroom = officer.=20 [**4]

On November 18, 1988, = after=20 exhausting his administrative remedies, Lavado filed a complaint in the = United=20 States District Court for the Western District of Tennessee against = Defendants=20 Patrick W. Keohane, O.I. White, Patrick T. Casey, Thomas, Langa, and=20 Daughtrey--all prison officials--in their individual and official = capacities.=20 Lavado's claim was brought under the authority of Bivens v. Six Unknown = Named=20 Agents of Federal Bureau of Narcotics, 403 U.S. 388, 390-97, 29 L. Ed. = 2d 619,=20 91 S. Ct. 1999 (1971). Lavado claimed that opening his mail outside his = presence=20 and reading it in his presence violated his First, Fourth, Fifth and = Sixth=20 Amendment rights. He sought equitable relief in two forms--a declaration = that=20 Defendants' actions were unconstitutional and an injunction ordering = Defendants=20 to refrain from opening his mail out of his presence. He also sought=20 compensatory and punitive damages from each Defendant.

Lavado filed a motion for an order compelling discovery on = June 9,=20 1989. On July 13, 1989, Defendants filed a motion to stay discovery, and = a=20 motion for judgment on the pleadings or, in the alternative, for summary = judgment. Discovery was stayed by order of the district court=20 on [**5] July 20, 1989. On August 2, 1989, Lavado filed a = motion for=20 appointment of counsel. On November 15, 1989, the district court = dismissed, on=20 the grounds of qualified immunity, all of Lavado's claims except for his = claim=20 for equitable relief against Defendants Keohane, Casey, and White, who = were=20 supervisory officials.

At some point = thereafter, Lavado=20 was released from prison. He renewed his motion for an order compelling=20 discovery on September 9, 1991, which was referred to a magistrate = judge. On=20 September 18, 1991, the remaining prison officials moved the district = court to=20 dismiss Lavado's claims for equitable relief as moot because Lavado had = been=20 released from federal custody. The magistrate judge issued a Memorandum = and=20 Order denying Lavado's motion for an order compelling discovery on = September 19,=20 1991. On September 20, 1991, the district court entered an order denying = Lavado's motion for appointment of counsel. The district court granted = the=20 prison officials' motion to dismiss on September 26, 1991, and a = Judgment in a=20 Civil Case was entered the next day. Lavado timely appealed to this = court.
II

A
"It is well established that the scope of = discovery is=20 within the sound [**6] discretion of the trial court." = Chrysler Corp.=20 v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.), cert. denied, = 454 U.S.=20 893, 70 L. Ed. 2d 207, 102 S. Ct. 388 (1981). Accordingly, denials of = motions to=20 compel discovery are reviewed only for an abuse of discretion. See = id.;=20 S. Rosenthal & Co. v. Hantscho, 1992 U.S. App. LEXIS 10007, = No.=20 91-3702 (6th Cir. Apr. 29, 1992).

B
A district court has discretion to appoint = counsel for an=20 indigent civil litigant. 28 U.S.C =A7 1915(d) (1988) ("The court may = request an=20 attorney to represent any such person unable to employ counsel . . . = ."); Reneer=20 v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992) ("The appointment of = counsel to=20 civil litigants is a decision left to the sound discretion of the = district=20 court, and this decision will be [*605] overturned only when = the=20 denial of counsel results in '"fundamental unfairness impinging on due = process=20 rights."'") (citations omitted). Accordingly, review of a district = court's order=20 denying appointment of counsel is for abuse of discretion. Henry v. = City of=20 Detroit Manpower Dep't, 763 F.2d 757, 760 (6th Cir.), cert.=20 [**7] denied, 474 U.S. 1036 (1985).
C

The district court = granted=20 Defendants' motion for judgment on the pleadings or, in the alternative, = for=20 summary judgment. Though the district court did not specify whether it = granted=20 judgment on the pleadings or summary judgment, our review of the matter = is=20 essentially the same either way. See Kubicek v. J. Walter Thompson = U.S.A., Inc.,=20 902 F.2d 33, (6th Cir. 1990); Murphy v. Gibson, 765 F.2d 145 (6th = Cir.=20 1985). We review the judgment de novo to determine if there is a = genuine=20 issue of any material fact, and whether the moving party is entitled to = judgment=20 as a matter of law. Fed. R. Civ. P. 56(c); Canderm Pharmacal, Ltd. v. = Elder=20 Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988). In making = these=20 determinations, we draw all reasonable inferences from the relevant = record in=20 favor of the non-movant, see National Solid Wastes Management = Ass'n v.=20 Voinovich, 959 F.2d 590, 592 (6th Cir. 1992), and, "for purposes of = a motion=20 for judgment on the pleadings, all well-pleaded material allegations of = the=20 pleadings of the [non-movant] must [**8] be taken as true."=20 Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, = Inc.,=20 479 F.2d 478, 480 (6th Cir. 1973). We note that, since Lavado filed a = verified=20 complaint, see J.A. at 25, his allegations "have the same force = and=20 effect as an affidavit" for purposes of responding to a motion for = summary=20 judgment. Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992); = see 28 U.S.C. =A7 1746 (1988).

III
A

Lavado's first=20 motion to compel discovery was denied before the issue of qualified = immunity was=20 decided by the district court. Given the Supreme Court's directive that = "until=20 this threshold immunity question is resolved, discovery should not be = allowed,"=20 Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. = 2727=20 (1982), the district court's denial of this motion was clearly not an = abuse of=20 discretion. See Criss v. City of Kent, 867 F.2d 259, 261 = (6th Cir.=20 1988) ("The Supreme Court has clearly stated that discovery in = litigation=20 against government officials should be halted until the threshold = question of=20 immunity is resolved."). [**9]

Lavado's=20 renewed motion to compel discovery was denied by a magistrate judge on = the basis=20 that Lavado's motion was mooted along with his action for equitable = relief when=20 he was released from prison. Lavado claims that such denial was an abuse = of=20 discretion because he was unable to argue his case without the discovery = he=20 requested. At the time the renewed motion to compel discovery was filed, = Lavado=20 had two equitable requests outstanding: (1) a declaration that the = prison=20 officials violated the United States Constitution where they allegedly=20 deliberately, continuously, and maliciously opened his privileged = special mail=20 outside his presence and read it in his presence; and (2) an injunction = ordering=20 the prison officials and their agents to refrain from opening his = privileged=20 special mail out of his presence. The request for an injunction was = obviously=20 mooted when Lavado was released from prison. Thus, it was not an abuse = of=20 discretion to deny Lavado's motion to compel discovery as it relates to = the=20 request for an injunction.

With regard to = the=20 declaratory relief sought, there was no abuse of discretion here either. = The=20 magistrate judge (and the district court) correctly concluded=20 that [**10] the issue of declaratory relief became moot when = Lavado=20 was released from prison. See Preiser v. Newkirk, 422 U.S. = 395,=20 402-03, 45 L. Ed. 2d 272, 95 S. Ct. 2330 (1975). Therefore, there was no = abuse=20 of discretion in denying the renewed motion to compel discovery.
"Appointment of counsel in a civil case is not a = constitutional right.=20 Mekdeci v. [*606] Merrell National Laboratories, 711 = F.2d=20 1510, 1522 n.19 (11th Cir. 1983). It is a privilege that is justified = only by=20 exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th = Cir.=20 1982)." Wahl v. McIver, 773 F.2d 1169, 1174 (11th Cir. 1985). In=20 determining whether "exceptional circumstances" exist, courts have = examined "the=20 type of case and the abilities of the plaintiff to represent himself." = Archie=20 v. Christian, 812 F.2d 250, 253 (5th Cir. 1987); see also=20 Poindexter v. FBI, 238 U.S. App. D.C. 26, 737 F.2d 1173, 1185 = (D.C.=20 Cir. 1984). This generally involves a determination of the "complexity = of the=20 factual and legal issues involved." Cookish v. Cunningham, 787 = F.2d 1, 3=20 (1st Cir. 1986). [**11]

Appointment of=20 counsel pursuant to 28 U.S.C. =A7 1915(d) is not appropriate when a = pro se=20 litigant's claims are frivolous, Henry v. City of Detroit Manpower=20 Department, 739 F.2d 1109, 1119 (6th Cir. 1984), or when the chances = of=20 success are extremely slim. Childs v. Duckworth, 705 F.2d 915, = 922 (7th=20 Cir. 1983); McKeever v. Israel, 689 F.2d 1315, 1320-21 (7th Cir. = 1982);=20 Ma[c]lin v. Freake, 650 F.2d 885, 887 (7th = Cir.=20 1981).

Mars v. Hanberry, 752 F.2d = 254, 256 (6th=20 Cir. 1985).

We find that the district = court, which=20 "carefully considered the relevant factors here" and "concluded that = exceptional=20 circumstances warranting appointment of counsel do not exist," J.A. at = 174=20 (Order Denying Appointment of Counsel at 2), did not abuse its = discretion.=20 See Reneer, 975 F.2d at 261 (holding that district court = did not=20 abuse its discretion in denying appointment of counsel to indigent = prisoner who=20 filed action under 42 U.S.C. =A7 1983 [**12] against prison = officials=20 who allegedly opened and read his incoming legal mail).
Analysis of the district court's November 15, 1989 order = granting the=20 prison officials' motion for judgment on the pleadings or, in the = alternative,=20 for summary judgment requires a foray into the law of immunity in the = context of=20 prisoner mail. The doctrine of immunity arises from the longstanding = policy that=20 government officers are entitled to some form of immunity from suits for = damages. Harlow, 457 U.S. at 806. The doctrine stems from the = common law=20 recognition that public officials require this protection to shield them = from=20 undue interference with their duties and from potentially disabling = threats of=20 liability. Id. Of the two types of governmental = immunity--absolute and=20 qualified--only the latter is at issue in this case.
"Whether an official protected by qualified immunity may be = held=20 personally liable for an allegedly unlawful official action generally = turns on=20 the 'objective legal reasonableness' of the action[,] Harlow, 457 = U.S.[]=20 at 819 . . . assessed in light of the legal rules that were 'clearly=20 established' at the time it [**13] was taken, id.[] at = 818."=20 Anderson v. Creighton, 483 U.S. 635, 639, 97 L. Ed. 2d 523, 107 = S. Ct.=20 3034 (1987). "The contours of the right [the official is alleged to have = violated] must be sufficiently clear that a reasonable official would = understand=20 that what he is doing violates that right." Id. at 640. We have = explained=20 that "the relevant inquiry focuses on whether a reasonable official in = the=20 defendant's position could have believed his conduct to be lawful, = considering=20 the state of the law as it existed when the defendant took his = challenged=20 actions." Poe v. Haydon, 853 F.2d 418, 423-24 (6th Cir. 1988), = cert.=20 denied, 488 U.S. 1007, 102 L. Ed. 2d 780, 109 S. Ct. 788 (1989). We = look=20 principally to the decisions of the United States Supreme Court and this = circuit=20 to determine whether the law was clearly established at the time of the = action=20 in our effort to determine ultimately whether a reasonable official = could have=20 considered his or her actions to be lawful. Id. at 424; see = also=20 Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir. 1991). In an=20 extraordinary case, [**14] other courts' decisions may be = relevant=20 to the inquiry, as we stated in Ohio Civil Serv. Employees Ass'n v.=20 Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988):

Our=20 review of the Supreme Court's decisions and of our own precedent leads = us to=20 conclude that, in the ordinary instance, to find a clearly established=20 constitutional right, a district court must find binding precedent by = the=20 Supreme Court, its court of appeals or itself. In an extraordinary=20 [*607] case, it may be possible for the decisions of other = courts to=20 clearly establish a principle of law. For the decisions of other courts = to=20 provide such "clearly established law," these decisions must both point=20 unmistakably to the unconstitutionality of the conduct complained of and = be so=20 clearly foreshadowed by applicable direct authority as to leave no doubt = in the=20 mind of a reasonable officer that his conduct, if challenged on = constitutional=20 grounds, would be found wanting.

In = assessing the=20 clarity of the law relevant to the instant case, we begin by noting = generally=20 that "prison walls do not form a barrier separating prison inmates from = the=20 protections of the Constitution." Turner v. Safley, 482 U.S. 78, = 84, 96=20 L. Ed. 2d 64, 107 S. Ct. 2254 (1987). [**15] However, a = certain=20 limitation or retraction of retained freedoms of prisoners has been = upheld in=20 light of the central corrections goal of institutional security. See=20 Bell v. Wolfish, 441 U.S. 520, 546-47, 60 L. Ed. 2d 447, 99 = S. Ct.=20 1861 (1979); Meadows v. Hopkins, 713 F.2d 206, 209-10 (6th Cir. = 1983).=20 Federal courts should attempt to balance the "policy of judicial = restraint=20 regarding prisoner complaints and the need to protect constitutional = rights."=20 Procunier v. Martinez, 416 U.S. 396, 406, 40 L. Ed. 2d 224, 94 S. = Ct.=20 1800 (1974); see also Turner, 482 U.S. at 84.
Given this, we have maintained that, though receipt of = incoming mail=20 implicates constitutional rights, see Knop v. Johnson, 977 = F.2d=20 996, 1012 (6th Cir. 1992), cert. denied, 122 L. Ed. 2d 786, 113 = S. Ct.=20 1415 (U.S. 1993); Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir. = 1986),=20 prison officials may open prisoners' incoming mail pursuant to a uniform = and=20 evenly applied policy with an eye to maintaining prison security.=20 Parrish, 800 F.2d at 603. [**16] The Bureau of = Prisons,=20 Department of Justice, has established policies for opening and reading = incoming=20 prisoner mail, see 28 C.F.R. =A7=A7 540.2-540.25 (1992). n2 = Neither the=20 United States Supreme [*608] Court nor this circuit has held = these=20 regulations to be unconstitutional. Indeed, prior to the time of the = alleged=20 violations in the instant case, the Supreme Court had approved a prison = policy=20 which allowed the opening of legal mail in the presence of the prisoner. = Wolff v. McDonnell, 418 U.S. 539, 577, 41 L. Ed. 2d 935, 94 S. = Ct. 2963=20 (1974). The Court also found it to be "entirely appropriate that the = State=20 require any [communications from an attorney] to be specially marked as=20 originating from an attorney, with his name and address being given, if = they are=20 to receive special treatment." Id. at 576. n3 At the time of the = alleged=20 violations, we are aware of no published opinion to have held that = strict=20 application of the Bureau of Prisons regulations violates inmates'=20 constitutional rights. Indeed, the Seventh Circuit, during the time = period of=20 the alleged violations in the instant case, indicated that strict = application of=20 the regulations does not violate [**17] inmates'=20 constitutional rights. Martin v. Brewer, 830 F.2d 76, 78 (7th = Cir. 1987);=20 see also Burt v. Carlson, 752 F. Supp. 346, 349 (C.D. Cal. = 1990)=20 (finding no reported cases holding that strict application of the Bureau = of=20 Prisons regulations violates prisoners' constitutional rights). We find = no other=20 preexisting United States Supreme Court or Sixth Circuit case that would = make it=20 clearly apparent that strictly following the regulations would violate = Lavado's=20 constitutional rights. See Anderson, 483 U.S. at 640 ("The = contours of the right must be sufficiently clear that a reasonable = official=20 would understand that what he is doing violates that right. This is not = to say=20 that an official action is protected by qualified immunity unless the = very=20 action in question has previously been held unlawful, but it is to say = that in=20 the light of pre-existing law the unlawfulness must be apparent.") = (citation=20 omitted). Nor do we find that the decisions of other circuits "both = point=20 unmistakably to the unconstitutionality of the conduct complained of and = [are]=20 so clearly foreshadowed by applicable direct [**18] authority = as to=20 leave no doubt in the mind of a reasonable officer that his conduct, if=20 challenged on constitutional grounds, would be found wanting." = Seiter,=20 858 F.2d at 1177. Consequently, we agree with the district court that a=20 reasonable prison official could have considered opening of the April = 21, May 6,=20 May 13, May 14, July 2, and October 28, 1987 letters outside Lavado's = presence=20 to have been lawful, considering the state of the law as it existed at = the time=20 of the challenged actions, since the letters did not strictly comply = with the=20 Bureau of Prisons regulations requiring the marking, "Special Mail--Open = only in=20 the presence of the inmate." See 28 C.F.R. =A7=A7 540.2(c), = 540.18(a),=20 540.19(b); see also Burt, 752 F. Supp. at 349 ("If the law = at [the=20 time of the incident] was not clearly established that the officials had = no=20 right to open special mail adequately identified as such despite = deviation from=20 the formula mark specified in Section 540.18(a), an official could not=20 reasonably be expected to anticipate subsequent legal developments, nor = could he=20 be fairly said to 'know' that the law forbade such conduct.=20 There [**19] are no reported cases that resolve this issue, = and the=20 position of the [defendants] . . . is not so obviously contrary to the = law as=20 set forth in Wolff and later cases as to necessarily have been = recognized=20 as such.") (citations omitted). n4

- - - - = - - - - - -=20 - - - - Footnotes - - - - - - - - - - - - - - -

n2 The regulations most relevant to this case read:

=A7 540.2 Definitions.

(a) General correspondence means incoming or outgoing=20 correspondence other than "special mail". "General Correspondence" = includes=20 packages sent through the mail.

. . . = .
(c) Special Mail . . . includes=20 correspondence received from the following: President and Vice = President=20 of the United States, attorneys, Members of the U.S. Congress, Embassies = and=20 Consulates, the U.S. Department of Justice (excluding the Bureau of = Prisons but=20 including U.S. Attorneys), other Federal law enforcement officers, State = Attorneys General, Prosecuting Attorneys, Governors, U.S. Courts = (including U.S.=20 Probation Officers), and State Courts. For incoming correspondence to be = processed under the special mail procedures (see =A7=A7 540.18-540.19), = the sender=20 must be adequately identified on the envelope, and the front of the = envelope=20 must be marked "Special Mail--Open only in the presence of the inmate".

. . . .

=A7 540.14 General correspondence.

(a) Institution staff shall open and = inspect all=20 incoming general correspondence. Incoming general correspondence may be = read as=20 frequently as deemed necessary to maintain security or monitor a = particular=20 problem confronting an inmate.

. . . = .

. . . .

=A7 540.18 Special mail.

(a) The Warden shall open incoming special mail only in the = presence of=20 the inmate for inspection for physical contraband and the qualification = of any=20 enclosures as special mail. The correspondence may not be read or copied = if the=20 sender is adequately identified on the envelope, and the front of the = envelope=20 is marked "Special Mail--Open only in the presence of the inmate".
(b) In the absence of either adequate = identification=20 or the "special mail" marking indicated in paragraph (a) of this section = appearing on the envelope, staff may treat the mail as general = correspondence=20 and may open, inspect, and read the mail.

. . . .

=A7 540.19 Legal correspondence.

(a) Staff shall mark each envelope of = incoming legal=20 mail (mail from courts or attorneys) to show the date and time of = receipt, the=20 date and time the letter is delivered to an inmate and opened in the = inmate's=20 presence, and the name of the staff member who delivered the letter. The = inmate=20 may be asked to sign as receiving the incoming legal mail. This = paragraph=20 applies only if the sender has marked the envelope as specified in =A7 = 540.18.
(b) The inmate is responsible for = advising any=20 attorney that correspondence will be handled as special mail only if the = envelope is marked with the attorney's name and an indication that the = person is=20 an attorney, and the front of the envelope is marked "Special Mail--Open = only in=20 the presence of the inmate". Legal mail shall be opened in accordance = with=20 special mail procedures (see =A7 540.18).

. . .=20 .

28 C.F.R. =A7=A7 540.2, 540.14, 540.18, = 540.19 (1992).=20 The wording of these regulations in 1987 was the same as quoted=20 above. [**20]

n3 As well, this court had suggested in an unpublished = opinion that the=20 special labeling requirements for legal mail as described in the Bureau = of=20 Prisons regulations are constitutional. Phipps v. Keohane, 811 = F.2d 607=20 (6th Cir. 1986).

n4 We note = also that it=20 is apparent from the record that Lavado was informed on many occasions = during=20 the time period of the alleged violations that, if he wanted incoming = legal or=20 "special" mail read in his presence, he had to inform the sender that = the=20 marking, "Special mail--Open only in the presence of the inmate," was=20 required--verbatim. See J.A. at 64 ("Incoming mail from certain=20 authorized persons is entitled to be treated as 'Special Mail' if the = sending=20 authority is adequately identified on the envelope and the front of the = envelope=20 is marked "Special Mail--Open in the Presence of the Inmate".); = id. at=20 109 ("It is the inmate's responsibility to notify attorneys, and all = other=20 correspondents covered under the special mail spectrum, of the notice to = be=20 placed on the envelope. It is our intention to process the large = quantities of=20 mail received everyday as efficiently as possible. For this reason, it = is=20 imperative that the special mail marking regulations be precise.").

- - - - - - - - - - - - = End Footnotes-=20 - - - - - - - - - - - - - [**21]
[*609] We similarly dispose of the February 8, = 1988 letter=20 from the American Civil Liberties Union. Although the letter had the = "Special=20 Mail--Open only in the presence of the inmate" marking pursuant to the = Bureau of=20 Prisons regulations, the envelope did not contain an attorney's name nor = did it=20 adequately identify that the letter was sent by an attorney as required = by the=20 regulations. See 28 C.F.R. =A7 540.19(b). Thus again, a = reasonable prison=20 official could have considered opening this letter outside Lavado's = presence to=20 have been lawful, given the state of the law as it existed at the time = of the=20 incident. See Wolff, 418 U.S. at 576 ("We think it = entirely=20 appropriate that the State require any [communications from an attorney] = to be=20 specially marked as originating from an attorney, with his name and = address=20 being given, if they are to receive special treatment.").
We also find that opening the June 26, 1987 package did not = violate=20 constitutional rights that were clearly established at the time of the = opening.=20 The outside of the package contained the marking, "Special Mail - Open = only in=20 the presence of the inmate," identified the sender, and=20 identified [**22] the sender as an attorney as required by 28 = C.F.R.=20 =A7 540.19(b). The Bureau of Prisons regulations, however, do not = clearly indicate=20 that packages so marked are to be treated the same as = envelopes so=20 marked. See 28 C.F.R. =A7 540.19(a) (using the term "envelope"); = 28 C.F.R.=20 =A7 540.19(b) (same); compare 28 C.F.R. =A7 540.2(a) (including = packages=20 within the definition of "General Correspondence") with 28 C.F.R. = =A7=20 540.2(c) (not specifically including packages within the definition of = "Special=20 Mail"). Moreover, packages may well present more of a security risk than = envelopes. Cf. Bell, 441 U.S. at 553-55. Thus, at the time = of the=20 violation, the contours of Lavado's alleged constitutional right to have = properly marked packages opened in his presence were not sufficiently = clear that=20 a reasonable official would understand that opening his properly marked = package=20 outside his presence violated that right.

We view the=20 prison officials' conduct relating to the June 29 and November 9, 1987 = letters=20 differently, however. Albert J. Langa allegedly opened and read in = Lavado's=20 presence the June 29, 1987 letter from the Florida Department of Law=20 Enforcement [**23] which was marked "Special Mail - Open only = in the=20 presence of the inmate." Lavado alleged in his complaint that Mr. Langa, = "after=20 reading plaintiff's privileged mail, . . . gave plaintiff his business = card=20 stating that plaintiff would need it to 'spell [defendant's] name right = when=20 [plaintiff] sued.'" J.A. at 17. The prison officials argue that they are = entitled to qualified immunity on this score because "neither the = Supreme Court=20 nor the Sixth Circuit . . . has addressed the question of whether a = prisoner has=20 a constitutional right not to have his legal related mail opened = and read=20 in his presence." Appellees' Br. at 9 (emphasis in original). Lavado = also=20 alleges that an unknown prison official opened the appropriately marked = November=20 9, 1987 letter from the United States Court of Appeals for the Eleventh = Circuit=20 out of his presence. The prison officials again respond that they are = entitled=20 to qualified immunity because "there is . . . no clearly established law = holding=20 that a prisoner has a constitutional right to have his legal related = mail opened=20 only in his presence." Id.

Though = the United=20 States Supreme Court and this circuit may not have clearly established = that=20 opening [**24] properly marked legal or "special" mail = outside=20 inmates' presence or reading it in inmates' presence violates = constitutional=20 rights in and of itself, n5 we have [*610] held that = opening/reading=20 inmates' mail in "arbitrary" or "capricious" fashion does violate = inmates' First=20 Amendment rights. Parrish, 800 F.2d at 604; see also = Reneer, 975=20 F.2d at 259-60 (applying holding of Parrish to partially reverse = district=20 court's order granting summary judgment for defendants where prison = officer read=20 privileged legal mail in inmate's presence; "if the mail was actually = read, and=20 this action was motivated by retaliation as plaintiff alleges, such = behavior by=20 prison officials might constitute the type of arbitrary action = proscribed in=20 Parrish, 800 F.2d at 604"); cf. Al-Jabbar a' La v. = Dutton,=20 1992 U.S. App. LEXIS 12112, No. 92-5004 (6th Cir. May 19, 1992) = (unpublished=20 order) ("Al-Jabbar did not demonstrate that, by opening his mail outside = his=20 presence, the defendants were motivated by personal prejudice towards = him, that=20 they intended to interfere with his right of access to the courts, or = that they=20 otherwise acted in a capricious manner. [**25] See = Parrish=20 v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986)."); Jackson v. = Norris,=20 1991 U.S. App. LEXIS 5555, No. 90-6307 (6th Cir. Mar. 28, 1991) = (unpublished=20 order) ("The court noted that [the prisoner] failed to allege any facts = which=20 would suggest that [the prison official] was motivated by a 'personal = prejudice'=20 towards [the prisoner], that [the prison official] intended to interfere = with=20 [the prisoner's] access to the courts, or otherwise acted in a = 'capricious=20 manner.' See Parrish v. Johnson, 800 F.2d 600, 604 (6th = Cir.=20 1986). . . . Upon review, we find no error."). Parrish was handed = down=20 well before the alleged openings/reading took place. Thus, it was = clearly=20 established at the time of the openings/reading in the instant case that = prisoners' mail could not be opened or read in arbitrary or capricious=20 fashion.

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n5 In = Wolff v.=20 McDonnell, 418 U.S. 539, 574-77, 41 L. Ed. 2d 935, 94 S. Ct. 2963 = (1974),=20 the United States Supreme Court noted that whether First, Sixth and = Fourteenth=20 Amendment rights of prisoners are infringed by opening letters = determined or=20 found to be from attorneys in the presence of prisoners is "far = from=20 clear." Though Lavado seems to read Wolff as standing for the = proposition=20 that prison officials may not open privileged special mail outside an = inmate's=20 presence, see Lavado's Br. at 10-11, "the narrow issue . . . = presented=20 [in Wolff] is whether the letters determined or found to be from=20 attorneys may be opened by prison authorities in the presence of the = inmate or=20 whether such mail must be delivered unopened if normal detection = techniques fail=20 to indicate contraband." Wolff, 418 U.S. at 575. The Court wrote, = "We=20 need not decide, however, which, if any, of the asserted = [constitutional] rights=20 are operative here, for the question is whether, assuming some = constitutional=20 right is implicated, it is infringed by the procedure now found = applicable by=20 the State." Id. at 576. It concluded that defendants, "by = acceding to a=20 rule whereby the inmate is present when mail from attorneys is = inspected, have=20 done all, and perhaps more, than the Constitution requires." Id. = at=20 577.

In Parrish v. Johnson, 800 F.2d = 600, 604=20 (6th Cir. 1986), we noted that "several courts have held that mail = relating to a=20 prisoner's legal matters may not be read and may only be opened in the=20 prisoner's presence." We did not, however, specifically join these = courts in so=20 holding. Among the "several courts" we noted were: Taylor v. = Sterrett,=20 532 F.2d 462, 477 (5th Cir. 1976); Bach v. Illinois, 504 F.2d = 1100, 1102=20 (7th Cir.) (per curiam), cert. denied, 418 U.S. 910 (1974); = Smith v.=20 Robbins, 454 F.2d 696 (1st Cir. 1972). Parrish, 800 F.2d at = 604. We=20 noted Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971) (en = banc),=20 cert. denied, 404 U.S. 1049 (1972) to the contrary, but indicated = that=20 the Second Circuit in Heimerle v. Attorney General, 753 F.2d 10, = 12-13=20 (2d Cir. 1985) suggested that Sostre may no longer be good law in = light=20 of intervening judicial decisions. Parrish, 800 F.2d at 604 & = n.3.

- - - - - - - - - - - - = End Footnotes-=20 - - - - - - - - - - - - - [**26]

While we do=20 not contend here that violations of the Bureau of Prisons regulations, = per=20 se, are violations of the aforementioned clearly established = constitutional=20 rights, n6 we believe that the allegations of blatant disregard for = established=20 regulations give rise to an inference of arbitrary or capricious action. = We also=20 note that the allegation that Mr. Langa read Lavado's properly marked=20 correspondence and proceeded to give Lavado his business card so Lavado = would be=20 able to spell his name correctly when Lavado sued also serves as a basis = for=20 such an inference. As discussed supra, judgment on the pleadings = or=20 summary judgment is not appropriate where, drawing all reasonable = inferences=20 from the relevant record in favor of the non-movant, [*611] = there is=20 a genuine issue of any material fact. Given the inferences to be drawn = in=20 Lavado's favor, there is, in the relevant record, a genuine issue of = material=20 fact as to whether the June 29 and November 9, 1987 incidents were = arbitrary or=20 capricious. Cf. Willetts v. Ford Motor Co., 583 F.2d 852, = 854 (6th=20 Cir. 1978); Day v. United Auto., Aerospace & Agric. Implement = Workers of=20 Am., 466 F.2d 83, 98-99 (6th Cir. 1972). [**27] We have = not=20 hesitated to reverse dismissals (or affirm denials of motions for = dismissal) of=20 actions before trial where we have found a genuine issue of material = fact=20 relating to qualified immunity in the record. See, e.g., = Jackson v.=20 Hoylman, 933 F.2d 401, 403 (6th Cir. 1991) (affirming district = court's=20 denial before trial of defendants' claim of qualified immunity on the = grounds=20 that a genuine issue of material fact existed in the record); = Hall, 932=20 F.2d at 1154 ("The district court correctly found that summary judgment = is=20 inappropriate on this issue because there are factual disputes on which = the=20 issue of immunity turns such that it cannot be determined before trial = whether=20 the officers did acts which violate clearly established rights."); = Pecsi v.=20 Doyle, No. 90-4039, 1991 U.S. App. LEXIS 17828, at * 10 (6th Cir. = July 26,=20 1991) (district court's finding of qualified immunity inappropriate = before trial=20 where genuine issues of material fact relating to the issue of qualified = immunity remain; "Under these circumstances, 'the jury becomes the final = arbiter=20 . . . of immunity, since the legal [**28] question of = immunity is=20 completely dependent upon which view of the facts is accepted by the = jury.'")=20 (quoting Brandenburg v. Cureton, 882 F.2d 211, 215-16 (6th Cir. = 1989)),=20 cert. denied, 112 S. Ct. 1175, (1992); see also Yates = v. City=20 of Cleveland, 941 F.2d 444, 447 (6th Cir. 1991); see generally=20 Poe, 853 F.2d at 426 ("Summary judgment would not be = appropriate if=20 there is a factual dispute (i.e., a genuine issue of material = fact)=20 involving an issue on which the question of immunity turns, such that it = cannot=20 be determined before trial whether the defendant did acts that violate = clearly=20 established rights."). We thus reverse the district court's November 15, = 1989=20 order as it relates to the June 29 and November 9, 1987 letters.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - = - - -

n6 The Supreme Court has made = it clear that=20 the failure to comply with state or federal regulations does not = necessarily=20 deprive government officials of qualified immunity. Davis v. = Scherer, 468=20 U.S. 183, 194, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984) ("Officials sued = for=20 constitutional violations do not lose their qualified immunity merely = because=20 their conduct violates some statutory or administrative provision."). = "Neither=20 federal nor state officials lose their immunity by violating the clear = command=20 of a statute or regulation--of federal or of state law--unless that = statute or=20 regulation provides the basis for the cause of action sued upon." = Id. at=20 195 n.12; see also Maraziti v. First Interstate Bank of=20 California, 953 F.2d 520, 525 (9th Cir. 1992); Young v. Kann, = 926=20 F.2d 1396, 1404-05 n.15 (3d Cir. 1991); Martin v. Marriner, 904 = F.2d 120,=20 122 (1st Cir. 1990), cert. denied, 498 U.S. 1034, 111 S. Ct. 696, = 112 L.=20 Ed. 2d 686 (1991); Walentas v. Lipper, 862 F.2d 414, 423 (2d Cir. = 1988),=20 cert. denied, 490 U.S. 1021, 104 L. Ed. 2d 183, 109 S. Ct. 1747 = (1989);=20 Childress v. SBA, 825 F.2d 1550, 1553 (11th Cir. 1987); = Culbreath v.=20 Block, 799 F.2d 1248, 1250-51 (8th Cir. 1986).

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Affirmed in part, = reversed in=20 part, and remanded for further proceedings in accordance with this = opinion.=20

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