The Honorable James M. Moody, United States District Judge

1

for the Eastern District of Arkansas. 

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No. 96-2184

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Laura Berry, *

*

Appellant, *

*

v. *

* Appeal from the United States

Jay L. Oswalt; Gaylon Lay; * District Court for the

Jay Blankenship, Warden * Eastern District of Arkansas.

Virginia W. Wallace; Larry *

Norris, Director; D. D. Cook; *

Katherine Green; Kevin Murphy; * 

C.O.-1 Wright; C.O.-1 R. Reed; * [UNPUBLISHED]

Sgt. Tammy Patton, formerly *

known as Tammy Ridgeway; A. *

Bradley, Classification Officer,*

 *

Appellees. *

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 Submitted: November 18, 1996

 Filed: January 23, 1997

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Before McMILLIAN, Circuit Judge, Henley, Senior Circuit Judge, and MORRIS

SHEPPARD ARNOLD, Circuit Judge.

___________

HENLEY, Senior Circuit Judge.

Laura Berry, an inmate of the Tucker Women's Unit of the Arkansas

Department of Correction, appeals from the district court's denial of her 1

motion for a preliminary injunction. We affirm.

The district court correctly held that Berry was not entitled to

preliminary injunctive relief on her legal mail and "legal
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trunk" claims. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,

113 (8th Cir. 1981). "'[W]hether a preliminary injunction should issue

involves consideration of (1) the threat of irreparable harm to the movant;

(2) the state of balance between this harm and the injury that granting the

injunction will inflict upon other parties litigant; (3) the probability

that movant will succeed on the merits; and (4) the public interest.'"

Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995) (quoting Dataphase, 640

F.2d at 114). "The burden of proving that a preliminary injunction should

be issued rests entirely with the movant." Id. "We review a district

court's grant or denial of preliminary injunctive relief for an abuse of

discretion or misplaced reliance on an erroneous legal principle." Id.

 As to the legal mail claim, at an evidentiary hearing Major

Luckett, chief of security at Tucker, testified that the prison's mail

policy regarding outgoing legal mail required officers to review documents

inside envelopes marked "legal mail" to "make sure they are legal

documents." He explained that the policy was necessary because of security

concerns. He further explained that officers did not read the documents,

but only "skimmed" them to verify that they were in fact legal, and after

an officer verified the documents he returned the documents and the

envelope to the inmate, who would seal the envelope before mailing. In

response to questioning by the court, Luckett confirmed that an officer was

"only to check the mail as far as necessary to confirm that it is going to

a lawyer," and that if an officer read a letter addressed to a lawyer he

or she would be violating the policy. Luckett stated that he knew of no

violations of the policy. 

At the hearing, Officer Angela Lovett testified that on one occasion

she attempted to verify Berry's legal mail. According to Lovett, Berry

took some grievance forms and a piece of notebook paper out of an envelope

and gave them to Lovett for verification. As Lovett was "skimming" the

page of notebook paper, Berry
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complained that Lovett was reading her mail. Lovett offered Berry the

opportunity to have another officer verify the mail, but Berry declined.

According to Lovett, when she "skimmed" a document she did not read it, but

only looked for something that "caught" her eye which would indicate that

the document pertained to a legal matter. In this case, Lovett stated that

she did not see an attorney's name on the page or anything else indicating

it was legal mail. In fact, Lovett testified that she could not have read

the page because she could not decipher Berry's handwriting. 

Although Berry had alleged that the prison's mail policy required

prison officials to read inmates' outgoing legal mail, see Thongvanh v.

Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994) ("prison officials have a

duty to maintain security within the prison, and this may include reading

inmates' incoming and outgoing mail, with the exception of legal mail"),

the district court correctly held that Berry failed to demonstrate the

existence of such a policy, which, we believe, indeed might pose a threat

of irreparable harm. In addition, we do not believe that Berry even proved

that Lovett violated the verification policy or a likelihood that the

policy was unconstitutional. Even if she had, an isolated violation still

would not necessarily be cause for issuance of a preliminary injunction.

See Goff, 60 F.3d at 521. 

Although at this stage we express no opinion on the merits of the

policy, we note that in Bell-Bey v. Williams, 87 F.3d 832 (6th Cir. 1996),

the Sixth Circuit rejected an inmate's challenge to a prison mail policy,

which required prison officials to "inspect" outgoing legal mail to

determine whether the mail was in fact legal mail. The court upheld the

policy, noting that there was no proof that the policy directed officials

to read prisoners' legal mail. Id. at 839. In addition -- and we believe

importantly -- the court noted that there were "procedural safeguards to

ensure that a prison employee only looks for identifiable information."

Id. Under the policy at issue, "1) the official's inspection [wa]s
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limited to scanning legal mail for docket numbers, case title, requests for

documents, et cetera; 2) the inspection [wa]s conducted in the prisoner's

presence in his cell; and 3) the prisoner [could] seal his mail after the

inspection [wa]s completed." Id. at 837. 

As to Berry's claim concerning removal of a trunk containing legal

materials from her cell, the district court correctly concluded that she

failed to demonstrate a threat of irreparable harm. Prison officials did

not require destruction of her legal materials, but merely required storage

of them elsewhere. As the district court noted, Berry had not demonstrated

how storage of the materials outside her cell would impair her access to

the courts. See Lewis v. Casey, 116 S. Ct. 2174, 2179-82 (1996). 

Accordingly, we affirm the denial of preliminary injunctive relief.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.