# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________ No. 96-1009SI

_____________ George Goff and Dudie J. Rose, * * Appellees, * * On Appeal from the United v. * States District Court * for the Southern District * of Iowa. C. C. Nix and John Henry, * * Appellants. *

___________ Submitted: January 16, 1997 Filed: May 15, 1997

___________ Before RICHARD S. ARNOLD, Chief Judge, ROSS and BEAM, Circuit Judges.

___________ RICHARD S. ARNOLD, Chief Judge. George Goff and Dudie Rose brought this 42 U.S.C. § 1983 actio n against defendants for an injunction against the Iowa State Penitentiary’s prohibition of legal correspondence between inmates in different priso n units. The District Court granted an injunction and ordered the defendant s to allow prisoners to send legal mail to inmates in other facilities. The Court also ordered th e defendants to ensure that legal documents would be
re turned to their owner when held by a “jailhouse lawyer” who i s transferred to another facility. We affirm in part and reverse in part, and vacate the injunction except to the extent that it requires the

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defendants to provide for the return of legal documents to their owner.

I.

The Iowa State Penitentiary (ISP) includes several facilities o f vary ing security levels. Prisoners assigned to one such unit may b e transferred to another during the period of their incarceration. Prisoner s are generally not all owed to correspond with inmates in other units. ISP has a written policy that allows inmates to send legal correspondence to jailh ouse lawyers within their unit, called the “red star system.” A n inmate wh o desires to send such mail notifies a prison officer, wh o inspects the envelope and documents for contraband. The inmate then place s the docum ents in the envelope, seals it, and affixes a red star. Th e officer then takes the envelope to be deliveredto the other inmate along with o ther legal mail from outside the prison. Until late 1988, IS P allowed prisoners to send correspondence to inma tes in other units by this
same procedure. A deputy warden noticed that the written policy did not permit this practice, and circulated a memo prohibiting future inter-unit legal correspondence. The effect of the change in 1988 was two-fold. First, an inmat e coul d not continue to correspond with another inmate - whether a co

plain tiff or his jailhouse lawyer - who was transferred to a differen t unit. Second, transferred jailhouse lawyers could not return lega l documents they held to their owner. The latter effect occurs becaus e prisoner transfers at ISP typically happen with very short advance notice to the inmate. The p risoner may either take legal documents (as personal property) with him, or leave them behind. If he takes the documents, he cannot return them to their owner, because the I SP policy prohibits interunit mailings. If he leaves the documents, the prison will

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destroy them in the course of cleaning out the cell. There is , consequently, no way for an inmate to return legal documents entrusted to him to their owner.
George Goff and Dudie Rose act as ja ilhouse lawyers for their fellow inmates, assisting them with various legal claims. Goff and Rose also hav e acted as their own lawyers, and in 1990 brought a lawsuit to challenge the conditions of confinement of the unit in which they both were housed

. Shortly after bringin g the suit in January, Goff was transferred to ISP’s main penitentiary. Rose was transferred in Apri l to a different unit, and transferred again in May to the main facility, in which Goff was already housed. Although the two were unable to correspond during the period of thei r separation, they were able to communicate again once they wer e reunited in May. Other “clients” of theirs (from their original unit) , however, were no longer able to correspond with Goff or Rose after th e transfers.

Goff and Rose challenge ISP’s change to the more restrictive policy. First, they claim that ISP’s prohibition on legal correspondence between prisoners in different units prevents inmates from maintaining an attorney

client relationship with a jailhouse lawyer who is transferred. Second, Goff and Rose contend that ISP barred them, as co-plaintiffs, fro m communicating with each other for a period, and thereby precluded them fro m prosecuting their pending claim effectively. Finally, they challenge ISP’ s failure t o provide a means by which jailhouse lawyers who possess a cli ent’s documents and are then transferred may return the documents t o their owner. After conducting a bench trial, the District Court granted relief to the plaintiffs on each of their claims, holding that the restrictions on legal communications burdened inmates’ right of

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access to the courts under Bounds v. Smith , 430 U.S. 817 (1977), and that the de fendants had failed to demonstrate that the restrictions wer e
reas onablyrelated to legitimate penological interests, as required b y Turner v. Safley , 482 U.S. 78 (1987). The Court ordered ISP to propose a system that met constitutional requirements. The Court later held that th e propos als submitted by the defendants did not remedy the constitutiona l violations, and it proceeded to order the reinst itution of essentially the de facto policy - which allowed inter-unit correspondence - that was i n place before 1989. Defendants then took this appeal.

II.

Goff and Rose first argue that the defendants’ appeal should b e dismissed because it is time-barred. They contend that the 30-day tim e limit with in which to file a notice of appeal after the entry of th e District Court’s judgment, Fed. R. App. P. 4(a)(1), began to run on Octobe r 19, 1993, when the Di strict Court entered its judgment for the plaintiffs and ordered ISP to formulate a plan. Therefore, they contend, th e defendants’ Notice of Appeal filed on December 18, 1995, was untimely

. Def endants counter that the clock began running when the District Cour t entered its permanent injunction ordering reinstatement of the red-sta r system on November 20, 1995, and that their noti ce of appeal was therefore timely. They argue i n the alternative that even if the 1993 judgment was final and appealable, they may challenge the merits of the 1993 judgment in this appeal from the 1995 order. This appeal is untimely only if the District Court’s 1993 decision - which ordered only that ISP submit a plan to remedy the constitutiona l flaws in its policy - was a final judgment, appe alable to this Court under 28 U.S.C. § 1291. We believe that the District Court’s 1993 order was no more final under § 1291 than

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the one at issue in Sherpell v. Humnoke School Dist. , 814 F.2d 538 (8t h Cir. 1987), which held that a district court ord er to a school district to submit a plan to remedy an unconstitutional atmo sphere of racial hostility was not an appealable final judgment. Id. at 53 9; see also Hendrickson v. Griggs , 856 F.2d 1041, 1044 (8th Cir. 1988) (holding injunction ordering prison to submit plan for reformation of unconstitutional prison condition s not appealable as int erlocutory order under 28 U.S.C. § 1292(a)(1)). The November 1995 judgment is, therefore, the pertinent (and only final) one for purposes of determining timeliness. As the notice of appeal from that order was filed on time, we have jurisdiction.

III.

Th e District Court held ISP’s policy constitutionally defective i n three respects. First, the policy precludes co-plaintiffs confined t o different units from coordinating their case. Second, it prevents th e continuation of a jailhouse lawyer’s relationshi p with his client once one or the other is trans ferred to a different unit. Finally, it precludes a jailhouse lawyer from returning his client’s documents to him when one or the other (or both) is transferred to another un it. The Court ordered ISP to reinstate its pre-1989 policy that allowed inter-unit correspondence, and to provide for the return of documents to their owner when thei r holder/lawyer is transferred. The defendants challenge Goff’s and Rose’s standing to bring thei r cla ims on the basis of Lewis v. Casey , 116 S. Ct. 2174 (1996), a cas e decided d uring the pendancy of this appeal. Lewis reminded us that th e Constitution requires a plaintiff to demonstrate actual injury in order to have a federal court adjudicate a claim and allo ws no exception in prisonconditions cases. Id. at 2180. It thus directed the judiciary t o scrutinize

### Rose had asked Goff to assist him with his post-conviction 1 

### proceedings, and contends that he lost critical papers, thereby prejudicing his pursuit of his case, when Goff was transferred. But Rose had a court-appointed lawyer for these proceedings. He cannot, therefore, challenge ISP’s policy prohibiting communications between himself and Goff, because he had access both to a lawyer and the courts. The deprivation of his papers provides a separate basis for a claim, which we consider later. Likewise, the District Court found that other inmates who lost their papers when their lawyers were transfered had difficulty obtaining new jailhouse lawyers because they had no papers, not because other lawyers were unavailable.
-6- the standing of plain tiffs in prison-conditions litigation to ensure that the plaintiffs have s uffered injury and that the relief afforded does not go beyond remedying that injury to change general conditions the cour t fin ds disturbing. We discuss plaintiffs’ standing to assert each clai m together with our consideration of the merits of the underlying claim.

A.
The first component of relief the Di strict Court ordered was for the prison to allow commu nications between an inmate and his chosen jailhouse lawyer, even after one is transfered to a new unit. A jailhouse lawyer ha s
no independent right to provide legal advice, see Gassler v. Rayl , 862 F.2 d 706, 707-08 (8th Cir. 1988), but may assert the right on behalf of other inmates who are otherwise unable to obtain access to the courts, Flittie

v. Solem , 827 F.2d 276, 280 (8th Cir. 1987). The essence of plaintiffs’ challenge is that their clients cannot continue their relationship with th e plaintiffs after a transfer. There was no finding, however, that th e client inmates were unable to find new jailhouse lawyers or other means of gainin g access to the courts. Consequently, Goff and Rose lac k 1 standing to assert this claim because they suffered no injury themselves and have not

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demonstrated injury to other inmates that they may assert on those inmates ’ behalf. The claim is dismissed for lack of standing and the injunctio n vacated accordingly.

B.

The next aspect of relief the District Court ordered was that IS P allow c o-plaintiffs in different units to communicate. Goff and Ros e sought relief in this case because the prison’s policy barred them fro m
corr esponding during their challenge to prison overcrowding in anothe r
cas e. The District Court granted a preliminary injunction that allowe d Goff and Rose to correspond. The defendants argue that the plaintiffs lac k stand ing to assert this claim because Goff and Rose suffered no actua l injur yfrom the policy, as they had counsel assigned to them (althoug h counsel la ter moved successfully to be discharged on the basis of he r belief th at the case was frivolous), and as they were not prejudiced by their in ability to communicate. The District Court found that th e prohibition on correspondence created substantial obstacles for inmates wh o wished to litigate as co-plaintiffs. In particular, Goff and Rose wer e unable to coordinate recruitment of witnesses for their upcoming trial

. Although Goff and Rose were ultimately unsuccess ful in that case, the case was decided on its me rits after an evidentiary hearing and briefing. See Rose v. Nix , No. 4-90-CV-70017 (S.D. Iowa, Dec. 29, 1992) (Judge Harold D. Vietor, adopting the Report and Recommendation o f Magistrate Judge Celeste F. Bre mer). It cannot, therefore, be characterized accurately a s “frivolous.” We believe that Goff and Rose have shown that a non-frivolou s claim was impeded by the prison’s policy, see Lewis , supra , 116 S. Ct. at 2181, and that they t herefore have standing to contest ISP’s restrictions on co-plaintiff communications.

### The warden explained that anything that inmates are not 2 

### allowed by prison policy to possess constitutes “contraband.” The term is not limited to such things as drugs and weapons.
-8- The de fendants argue that even if Goff and Rose have standing t o challenge ISP’s policy on co-plaintiff communica tions, the restriction was
reas onablyrelated to a legitimate penological interest, and therefor e constitutional. Turner v. Safley , 482 U.S. 78, 89 (1987). They explain that the principal justification for the policy is security. A deput y warden testified that the restriction precludes inmates from disseminating informati onabout a transferee to inmates in his new facility. This i s par ticularlyimportant when the person is being transferred for his ow n safety, for example, if he has been identified as a “snitch.” The second reason for the policy that the deputy warden off ered was that it prevented the transfer of contraband or love letters to inmates in other units. The 2 District Court found that the deputy warden admitted that the abuses of th e systemthat allowed inter-unit mail were minimal, but our reading of the tra nscript leads us to disagree, as the warden repeatedly insisted tha t there were probably many abuses that he was not aware of, in addition to the dozen violations identified each year.

There is little difference between the policy here and Missouri’ s prisonpolicy upheld in Turner , 482 U.S. at 91-93, except that there the prison allowed legal correspondence. In Turner , the regulation wa s challenged as a First Amendment violation; here, as a restriction on the right to meaningful a ccess to the courts as explained in Bounds v. Smith , 430 U.S. 817 (1977). Turner provides no difference in the level o f justifica tiona prison must have depending on the source of th e constitutional claim. Turner , 482 U.S. at 89. ISP’s policy burdens a different

### It is of no moment that ISP did at one point allow such 3 

### correspondence. The inmates did not thereby acquire a protectible entitlement to the continuation of the policy. They were merely provided a privilege that the prison later decided no longer to extend to them because of security concerns. While the previous policy was certainly reasonable, as Turner makes clear, that does not necessarily make any more restrictive policy unreasonable. The difficulty ISP would face in determining whether a prisoner had placed legal correspondence or improper correspondence in a red-star envelope allows it to conclude reasonably that the new policy was an appropriate (albeit not the only possible) response.
-9- right held by prisoners, but achieves its end (preventing incitin g information from being transmitted to other unit s) by means similar (a ban
on inte r-unit mail) to those held constitutional in Turner
. Therefore , 3 we conclude that the ban on inter-unit correspon dence is permissible under the Constitution and reverse the District Court’s grant of an injunction against it.

C.

The Di strict Court also ordered that ISP provide a means for th e return of an inmate’s legal documents to him when his jailhouse lawyer is transferred to another unit. The Court directed ISP to send an official to the cell of a jail house lawyer shortly before he is transferred to ask what legal papers should remain, determine to whom they belong (by scannin g thembrief ly), and ensure the return of the documents to their owner

. Defendants contend that Goff and Rose do not have standing to challeng e this policy because t hey were not themselves injured by it. The District Court found, to the c ontrary, that Rose lost legal papers critical to his post-conviction proceedings when Goff, who posse ssed them at the time, was transferred. Rose, therefore, may assert this claim on his own behalf

. Because we can see no reason why Rose’s claim is substantially different from those that might be brought by other

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inmates w ho are deprived of their papers in the same way, an injunctio n against the prison’s policy (as opposed to an injunction applicable only to Rose) would not be inappropriately overbroad.

The defendants offer four justifications for ISP’s restriction

. First, t hey explain that the policy is consistent with halting th e jailhouse lawyer-client relationship when one is transferred. Second, the policy eliminates concerns over the free passage of paper between inmates. Third , it allays fears about the transfer of contraband. Finally, IS P contends it is burdensome to supply a prison official to attend to suc h matte rs upon the transfer of anyone claiming to be a jailhouse lawyer

. Togethe r, the defendants argue, these reasons make the polic y constitutional under Turner
.

The ta king of an inmate’s legal papers can be a constitutiona l violationwhen it infringes his right of access to the courts. Tyler v. Woodson , 597 F.2d 643, 644 (8th Cir. 1979) (citing Tyler v. “Ron” Deputy Sheriff , 574 F.2d 427 (8th Cir. 1978)). The taking of legal papers will often ( though perhaps not always) interfere with an inmate’s right o f
acc ess to the courts. We will not deny relief on the unsupporte d assumption that the p apers involve only frivolous claims. Therefore, the destruc tionor withholding of inmates’ legal papers burdens a constitutional right, and can only be justified if it is reasonably relate d to a legitimate penological interest. Turner , supra . The defendants’ proffered justificat ions do not persuade us that the Dist rict Court’s injunction was incorrectly issued. The lawyer-clien t relationship is alrea dy essentially concluded upon the lawyer’s transfer, because of the prison ’s permissible restriction on future correspondence, and will not be more effectively severed by the destruction or withholding of documents.

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The defendants do not challenge the lawyer’s acquisition of the client’s papers, and we do not see how their retransmittal to the client constitute s
a worriso me free passage of paper. We also believe that the feare d transfer of contraband can be avoided by an official’s scanning th e docume nts before he returns them. Moreover, the most persuasiv e just ificationfor prohibiting inter-unit correspondence is not presen t here: the documents stay within their original unit and there is , therefore, no opportunity to communicate information about inmates to othe r uni ts. Finally, we do not see the administrative burden as large , especially when compared to the loss an inmate may suffer when what may be his only copy of a legal document that could determine his freedom i s destroyed. We therefore conclude that the Distr ict Court correctly issued
an injunction against the practice, and the relief granted was appropriate

.

IV.

We co nclude that the plaintiffs do not have standing to challeng e ISP’s policy restricting inter-unit correspondence, except for that betwee n co-plaintiffs. The plaintiffs do have standing to challenge ISP’s failure to provide for the return of legal documents to inmates when the holder of the documents is transferred. We hold the restriction on inter-uni t correspondence between co-plaintiffs is constitutional and therefore vacat e the D istrict Court’s injunction against this policy. We hold that th e failure t o provide for the return of an inmate’s legal documents to hi m does v iolate the Constitution and therefore uphold the District Court’ s injunction and remedial scheme with respect to that issue. Affirmed in part and reversed in part.

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Attest:

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