PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-7340

GRANT RUFFIN HAZE, III,

Plaintiff - Appellant,

v.

DONNIE HARRISON; MS. SCOTT; MS. FREDRICK; OFFICER HALL; 

SERGEANT CLARK; WAKE COUNTY SHERIFF DEPARTMENT,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-ct-03109-BO)

Submitted: March 26, 2020 Decided: June 8, 2020

Before MOTZ, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge Motz wrote 

the opinion, in which Judge Harris and Judge Quattlebaum joined.

Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Paul Gerard 

Gessner, Harold F. Askins, WAKE COUNTY SHERIFF’S OFFICE, Raleigh, North 

Carolina; Robert C. Montgomery, CAMPBELL UNIVERSITY SCHOOL OF LAW, 

Raleigh, North Carolina, for Appellees.
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DIANA GRIBBON MOTZ, Circuit Judge:

While awaiting trial, Grant Haze was held at two state detention facilities in Wake 

County, North Carolina. Haze allegesthat during this time, prison officials opened, copied, 

misdirected, and otherwise interfered with his mail to and from his lawyer. Proceeding pro 

se, Haze filed this § 1983 action against Wake County Sheriff Donnie Harrison, the Wake 

County Sheriff’s Department, and officers and staff at the facilities, alleging violations of 

his First, Fourth, and Sixth Amendment rights.1

 The district court granted summary 

judgment to Defendants. Haze appeals. For the reasons set forth herein, we affirm in part, 

reverse in part, and remand for further proceedings consistent with this opinion.

I.

From July 2011 to September 2013, Haze, a pretrial detainee, was held at the Wake 

County Public Safety Center and the Wake County Detention Center. The mail policy in 

force at those facilities requires officers to inspect all incoming mail for contraband. 

Special rules apply to legal mail, which officers are to inspect in the inmate’s presence. 

Officers are instructed not to read an inmate’s legal mail.

Certain law enforcement officers and lawyers at the District Attorney’s office may 

request that inmates be placed on the “Jail Mail Watch List.” When an inmate is on the 

Jail Mail Watch List, staff at the facilities send copies of the inmate’s incoming and 

1 Haze also alleged civil conspiracy and violations of his right to due process, but 

on appeal his attorneys do not contend the district court erred in granting summary 

judgment with respect to those claims.
3

outgoing non-legal mail to the Wake County Sheriff’s Office, which in turn forwards the 

mail to the party requesting it. However, staff at the facilities are trained not to open or 

copy an inmate’s legal mail.

Haze allegesthat prison officials improperly interfered with his legal mail on at least 

fifteen occasions. According to Haze, on seven occasions prison officials opened and 

copied his outgoing legal mail and forwarded it to the District Attorney’s office. All but 

one of these letters were labeled “legal mail.” On five occasions, officials never delivered

Haze’s incoming legal mail or sent Haze’s outgoing legal mail. And on three occasions,

officials either read Haze’s incoming legal mail or opened it outside of his presence.2

Haze filed contemporaneous grievances with corrections officials regarding the 

interference with his legal mail. Haze claims that when he informed a prison officer that 

this interference violated his constitutional rights, the officer responded: “Sue me.”

Haze then brought this action against Defendants under 42 U.S.C. § 1983. Haze 

contends that Defendants’ interference with his legal mail violated, inter alia, his First 

Amendment rights to free speech and access to the courts, his Fourth Amendment right to 

be free from unreasonable searches and seizures, and his Sixth Amendment right to the 

effective assistance of counsel.

2 Although Defendants contest Haze’s characterization of some of these incidents, 

we need not resolve this conflict. See TFWS, Inc. v. Schaefer, 325 F.3d 234, 241 (4th Cir. 

2003) (summary judgment is not an appropriate vehicle to “resolve conflicts in the 

evidence”). Instead, the question on summary judgment is whether the movant is entitled 

to judgment as a matter of law based on facts as to which “there is no genuine dispute.” 

Fed. R. Civ. P. 56(a).
4

The district court granted summary judgment to Defendants. With respect to the 

First Amendment free speech claim, the court held that prison officials had acted only 

negligently, precluding liability under § 1983. The court concluded that Haze had failed 

to show an actual injury to his ability to pursue legal claims, foreclosing his First 

Amendment access-to-the-courts claim. Finally, the court held that Heck v. Humphrey, 

512 U.S. 477 (1994), barred the Fourth and Sixth Amendment claims. Haze timely 

appealed.

A district court may grant summary judgment only if the movant “shows that there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). “‘A dispute is genuine if a reasonable jury could 

return a verdict for the nonmoving party,’ and ‘[a] fact is material if it might affect the 

outcome of the suit under the governing law.’” Variety Stores, Inc. v. Wal-Mart Stores, 

Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration in original) (quoting Jacobs v. N.C. 

Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015)). Although we draw all 

justifiable inferences in favor of the non-movant (here, Haze), we “must accord deference 

to the views of prison authorities” regarding “disputed matters of professional judgment.” 

Beard v. Banks, 548 U.S. 521, 529–30 (2006).

With the facts and standard of review in mind, we turn to Haze’s claims.

II.

Haze’s principal contention is that Defendants violated his First Amendment right 

to free speech. The First Amendment, as incorporated through the Fourteenth Amendment,
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prohibits states from “abridging the freedom of speech.” U.S. Const. amend. I. This 

proscription extends to both government regulations that directly burden speech and those 

that have indirect chilling effects. See Washington Post v. McManus, 944 F.3d 506, 516–

17 (4th Cir. 2019).

Opening an incarcerated person’s legal mail outside of his presence can chill

protected speech. As the Third Circuit has explained, this practice “strips those protected 

communications of their confidentiality,” inhibiting the incarcerated person’s “ability to 

speak, protest, and complain openly, directly, and without reservation with the court.” 

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (internal quotation marks omitted); see

also Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1210 (9th Cir. 2017) (“When a prisoner 

receives confidential legal mail that has been opened and re-sealed, he may understandably 

be wary of engaging in future communication about privileged legal matters.”); cf. Wolff 

v. McDonnell, 418 U.S. 539, 577 (1974) (prison’s legal mail policy did not chill protected 

speech where it required such mail to be opened in the presence of the inmate, thus 

“insur[ing] that prison officials will not read the mail”).

Although incarcerated persons do not “shed [their] first amendment rights at the 

prison portals,” Brown v. Peyton, 437 F.2d 1228, 1230 (4th Cir. 1971), courts generally 

accord deference to the day-to-day judgments of prison officials, see Turner v. Safley, 482 

U.S. 78, 89 (1987). Accordingly, as the Supreme Court has explained, even if a prison’s 

policy or practice impinges upon constitutional rights, it remains “valid if it is reasonably 

related to legitimate penological interests.” Id. To determine whether this is so, courts 
6

apply the Turner Court’s test, which governs the claims of both convicted prisoners and

pretrial detainees like Haze. See Hause v. Vaught, 993 F.2d 1079, 1082 (4th Cir. 1993).

The Turner test requires assessment of four factors:

(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) the impact accommodation of the asserted constitutional right 

will have on guards and other inmates, and on the allocation of prison 

resources generally; and (4) whether there are ready alternatives.

Greenhill v. Clarke, 944 F.3d 243, 253 (4th Cir. 2019) (internal quotation marks omitted). 

Although courts accord deference to the judgments of prison administrators, this deference 

is not limitless. “When neither common sense nor evidence demonstrates a reasonable 

causal nexus” between a prison administrator’s ends and chosen means, “summary 

judgment for the defendant administrator is inappropriate.” Jones, 461 F.3d at 361.

With respect to the first Turner factor, Defendants contend that they acted 

reasonably in opening Haze’s legal mail outside of his presence because of potential

security risks. Haze had received contraband — internet printouts of cars, phones, and 

vacation homes — through non-legal mail; prison officials suspected that Haze had also 

received contraband through legal mail.

The argument fails. To be sure, Haze’s receipt of the prohibited materials justifies 

the opening of his legal mail to check for the presence of contraband. But Defendants do 
7

not explain, as they must, why they did so outside of Haze’s presence.

3

 Because no

reasonable causal nexus has been shown between Defendants’ ends and chosen means, the 

first Turner factor weighs in favor of Haze.

The remaining Turner factors, which Defendants do not address in their brief, also 

militate in favor of Haze. There are few alternative means to assure incarcerated persons

that they may freely communicate with counsel — given the nature of incarceration, 

“prisoners’ avenues of confidential communication with attorneys are limited.” Hayes, 

849 F.3d at 1210. Opening legal mail in an inmate’s presence would have little “impact . . . 

on guards and other inmates, and on the allocation of prison resources generally,” Turner, 

482 U.S. at 90 — indeed, Defendants’ own policy requires officers to do so. Cf. Al-Amin 

v. Smith, 511 F.3d 1317, 1331 (11th Cir. 2008) (“[T]here is no showing that opening 

attorney mail in an inmate’s presence burdens guards, prisoners, or the allocation of prison 

resources; as noted above, DOC policy already requires opening attorney mail in an 

inmate’s presence.”). And there is a “ready alternative[]” to the challenged practice,

Turner, 482 U.S. at 90: “opening an inmate’s attorney mail in his presence itself is the 

3 On appeal, Defendants suggest that officer safety could be jeopardized when mail 

containing contraband is opened in an inmate’s presence. This argument is conclusory —

Defendants do not explain how this rationale would apply to outgoing mail; nor do they 

contend that mail at the facilities is opened within an inmate’s reach. In any event,

Defendants forfeited the argument by failing to raise it in the district court. See United 

States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019). Moreover, because the 

record does not reflect that this was the actual reason Defendants opened Haze’s legal mail 

outside of his presence, summary judgment would be inappropriate. See Salahuddin v. 

Goord, 467 F.3d 263, 277 (2d Cir. 2006); Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 

1990).
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easy alternative; it ‘fully accommodates the prisoner’s rights at de minimis cost to valid 

penological interests,’” Al-Amin, 511 F.3d at 1331 (quoting Turner, 482 U.S. at 91).

Defendants advance several arguments in an attempt to evade this conclusion. First, 

they argue that their actions were, at most, negligent, foreclosing liability on this claim 

under § 1983. See Morrash v. Strobel, 842 F.2d 64, 67 (4th Cir. 1987). But Haze alleges 

fifteen instances of interference with his legal mail, in contravention of Defendants’ own 

policy, despite his complaints and written grievances. Indeed, Haze contends that when he 

complained that his constitutional rights were being violated, a prison officer responded: 

“Sue me.” Drawing all reasonable inferences in favor of Haze, a jury reasonably could 

find that Defendants’ conduct was not negligent, but rather constituted a deliberate pattern 

or practice. See Hayes, 849 F.3d at 1216, 1219 (Bybee, J., concurring in the judgment)

(prison officials’ intentional conduct may be inferred from a pattern and practice of 

improperly opening legal mail or disregard for established regulations); Bieregu v. Reno, 

59 F.3d 1445, 1452 (3d Cir. 1995) (holding that jury could reasonably find a pattern or 

practice where the plaintiff alleged fifteen instances of his legal mail being opened and 

documented five instances), overruled on other grounds by Lewis v. Casey, 518 U.S. 343 

(1996).

Next, Defendants contend that Haze has not shown that he was injured by the 

opening of his legal mail. In doing so they fail to recognize that the infringement of Haze’s 

First Amendment rights itself constitutes an injury. See Jones, 461 F.3d at 359–60 (“Unlike 

the provision of legal libraries or legal services, which are not constitutional ‘ends in 

themselves, but only the means for ensuring a reasonably adequate opportunity to present 
9

claimed violations of fundamental constitutional rights to the courts,’ protection of an 

inmate’s freedom to engage in protected communications is a constitutional end in itself.” 

(citation omitted) (quoting Lewis, 518 U.S. at 351)); Al-Amin, 511 F.3d at 1334 (“We also 

agree . . . that the actual injury requirement applies to access-to-courts claims but not to 

free speech claims.”).

Finally, Defendants maintain that qualified immunity protects them from liability 

on this claim. “Qualified immunity protects officers who commit constitutional violations 

but who, in light of clearly established law, could reasonably believe that their actions were 

lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). Defendants argue

that courts had not clearly established, at the time of the alleged constitutional violations,

that legal mail must be opened in an inmate’s presence. This directly contradicts

Defendants’ qualified immunity argument in the district court. There, Defendants 

contended that “[t]he only established law is that general mail may be opened and inspected 

outside of the presence of the inmate. ‘Legal Mail’ may be opened and inspected for 

contraband, but in the presence of the inmate.” See Defs.’ Mem. Supp. Summ. J. 26, ECF 
10

No. 104. Accordingly, Defendants have forfeited the argument on appeal. See United 

States v. Turner Constr. Co., 946 F.3d 201, 208 (4th Cir. 2019).4

III.

Haze also maintains that in opening his legal mail outside of his presence, prison 

officials violated his Fourth Amendment rights. The Fourth Amendment, as incorporated 

through the Fourteenth Amendment, prohibits state actors from conducting “unreasonable 

searches and seizures.” U.S. Const. amend. IV. “A government agent’s search is 

unreasonable when it infringes on an expectation of privacy that society is prepared to 

consider reasonable.” United States v. Castellanos, 716 F.3d 828, 832 (4th Cir. 2013)

(internal quotation marks omitted).

The fact that legal mail is widely recognized to be privileged and confidential —

even in the context of prisons — suggests that an incarcerated person’s expectation of 

privacy in his legal mail is one “that society is prepared to consider reasonable.” See id. 

(internal quotation marks omitted); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 

4 Moreover, we note that in the absence of binding authority clearly establishing a 

right, “we may look to ‘a consensus of cases of persuasive authority’ from other 

jurisdictions.” See Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 538–39 (4th Cir. 2017) 

(quoting Owens ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004)). Such a consensus 

seems to exist here, foreclosing this qualified immunity defense. See Merriweather v. 

Zamora, 569 F.3d 307, 317 (6th Cir. 2009); Al-Amin, 511 F.3d at 1330–31; Jones, 461 F.3d 

at 359; Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003); Jensen v. Klecker, 648 F.2d 

1179, 1182 (8th Cir. 1981); Ramos v. Lamm, 639 F.2d 559, 582 (10th Cir. 1980); see also

Hayes, 849 F.3d at 1211; Cody v. Weber, 256 F.3d 764, 768 (8th Cir. 2001); McWilliams 

v. Schoeneman, 124 F.3d 217, 1997 WL 525492, at *3 (10th Cir. Aug. 11, 1997)

(unpublished table decision). But see Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993).
11

2003) (“In balancing the competing interests implicated in restrictions on prison mail, 

courts have consistently afforded greater protection to legal mail than to non-legal 

mail . . . .”). And although the Supreme Court held in Hudson v. Palmer, 468 U.S. 517

(1984), that “the Fourth Amendment proscription against unreasonable searches does not 

apply within the confines of the prison cell,” id. at 526, “nothing in Hudson indicates the 

Supreme Court intended to abrogate a prisoner’s expectation of privacy beyond his cell,” 

King v. Rubenstein, 825 F.3d 206, 215 (4th Cir. 2016) (emphasis added) (internal quotation 

marks omitted).

Nevertheless, Defendants are entitled to qualified immunity with respect to Haze’s 

Fourth Amendment claim. Neither we nor the Supreme Court has previously considered 

the question of whether incarcerated persons have a reasonable expectation of privacy in 

their legal mail. Nor is there a consensus of persuasive authority on the matter — indeed, 

neither party identifies a single case, in any Circuit, where interference with an incarcerated 

person’s legal mail was held to be violative of the Fourth Amendment. Consequently, 

Defendants have met their burden to show that their actions did not violate clearly 

established law for purposes of Haze’s Fourth Amendment claim.

IV.

Finally, Haze contends that Defendants’ interference with his legal mail hindered 

his criminal defense, violating his First Amendment right of access to the courts and his 

Sixth Amendment right to the effective assistance of counsel. Haze has forfeited these 

arguments by failing to raise them in his informal brief. See Jackson v. Lightsey, 775 F.3d 
12

170, 177 (4th Cir. 2014); United States v. Hairston, 754 F.3d 258, 260 n.3 (4th Cir. 2014). 

Accordingly, we need not decide whether Heck v. Humphrey bars these claims. See Heck, 

512 U.S. at 486–87 (holding that § 1983 claims are barred where recovery would imply 

the invalidity of plaintiff’s criminal conviction if that conviction has not yet been 

invalidated).

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.