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 action

against defendants for an injunction against the Iowa State Penitentiary’s

prohibition of legal correspondence between inmates in different prison

units. The District Court granted an injunction and ordered the defendants

to allow prisoners to send legal mail to inmates in other facilities. The

Court also ordered the defendants to ensure that legal documents would be

returned to their owner when held by a “jailhouse lawyer” who is

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 of

varying security levels. Prisoners assigned to one such unit may be

transferred to another during the period of their incarceration. Prisoners

are generally not allowed to correspond with inmates in other units. ISP

has a written policy that allows inmates to send legal correspondence to

jailhouse lawyers within their unit, called the “red star system.” An

inmate who desires to send such mail notifies a prison officer, who

inspects the envelope and documents for contraband. The inmate then places

the documents in the envelope, seals it, and affixes a red star. The

officer then takes the envelope to be delivered to the other inmate along

with other legal mail from outside the prison. Until late 1988, ISP

allowed prisoners to send correspondence to inmates 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 inmate

could not continue to correspond with another inmate - whether a coplaintiff or his jailhouse lawyer - who was transferred to a different

unit. Second, transferred jailhouse lawyers could not return legal

documents they held to their owner. The latter effect occurs because

prisoner transfers at ISP typically happen with very short advance notice

to the inmate. The prisoner 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 ISP 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 jailhouse lawyers for their fellow

inmates, assisting them with various legal claims. Goff and Rose also have

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 bringing the suit in January, Goff was transferred to ISP’s

main penitentiary. Rose was transferred in April 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

their separation, they were able to communicate again once they were

reunited in May. Other “clients” of theirs (from their original unit),

however, were no longer able to correspond with Goff or Rose after the

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 attorneyclient relationship with a jailhouse lawyer who is transferred. Second,

Goff and Rose contend that ISP barred them, as co-plaintiffs, from

communicating with each other for a period, and thereby precluded them from

prosecuting their pending claim effectively. Finally, they challenge ISP’s

failure to provide a means by which jailhouse lawyers who possess a

client’s documents and are then transferred may return the documents to

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 defendants had failed to demonstrate that the restrictions were

reasonably related to legitimate penological interests, as required by

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 the

proposals submitted by the defendants did not remedy the constitutional

violations, and it proceeded to order the reinstitution of essentially the

de facto policy - which allowed inter-unit correspondence - that was in

place before 1989. Defendants then took this appeal.

II.

Goff and Rose first argue that the defendants’ appeal should be

dismissed because it is time-barred. They contend that the 30-day time

limit within which to file a notice of appeal after the entry of the

District Court’s judgment, Fed. R. App. P. 4(a)(1), began to run on October

19, 1993, when the District Court entered its judgment for the plaintiffs

and ordered ISP to formulate a plan. Therefore, they contend, the

defendants’ Notice of Appeal filed on December 18, 1995, was untimely.

Defendants counter that the clock began running when the District Court

entered its permanent injunction ordering reinstatement of the red-star

system on November 20, 1995, and that their notice of appeal was therefore

timely. They argue in 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 constitutional

flaws in its policy - was a final judgment, appealable 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 (8th

Cir. 1987), which held that a district court order to a school district to

submit a plan to remedy an unconstitutional atmosphere of racial hostility

was not an appealable final judgment. Id. at 539; 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 conditions

not appealable as interlocutory 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.

The District Court held ISP’s policy constitutionally defective in

three respects. First, the policy precludes co-plaintiffs confined to

different units from coordinating their case. Second, it prevents the

continuation of a jailhouse lawyer’s relationship with his client once one

or the other is transferred 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 unit. 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 their

holder/lawyer is transferred.

The defendants challenge Goff’s and Rose’s standing to bring their

claims on the basis of Lewis v. Casey, 116 S. Ct. 2174 (1996), a case

decided during the pendancy of this appeal. Lewis reminded us that the

Constitution requires a plaintiff to demonstrate actual injury in order to

have a federal court adjudicate a claim and allows no exception in prisonconditions cases. Id. at 2180. It thus directed the judiciary to

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.

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the standing of plaintiffs in prison-conditions litigation to ensure that

the plaintiffs have suffered injury and that the relief afforded does not

go beyond remedying that injury to change general conditions the court

finds disturbing. We discuss plaintiffs’ standing to assert each claim

together with our consideration of the merits of the underlying claim.

A.

The first component of relief the District Court ordered was for the

prison to allow communications between an inmate and his chosen jailhouse

lawyer, even after one is transfered to a new unit. A jailhouse lawyer has

no independent right to provide legal advice, see Gassler v. Rayl, 862 F.2d

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 the

plaintiffs after a transfer. There was no finding, however, that the

client inmates were unable to find new jailhouse lawyers or other means

of gaining access to the courts. Consequently, Goff and Rose lack

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 injunction

vacated accordingly.

B.

The next aspect of relief the District Court ordered was that ISP

allow co-plaintiffs in different units to communicate. Goff and Rose

sought relief in this case because the prison’s policy barred them from

corresponding during their challenge to prison overcrowding in another

case. The District Court granted a preliminary injunction that allowed

Goff and Rose to correspond. The defendants argue that the plaintiffs lack

standing to assert this claim because Goff and Rose suffered no actual

injury from the policy, as they had counsel assigned to them (although

counsel later moved successfully to be discharged on the basis of her

belief that the case was frivolous), and as they were not prejudiced by

their inability to communicate. The District Court found that the

prohibition on correspondence created substantial obstacles for inmates who

wished to litigate as co-plaintiffs. In particular, Goff and Rose were

unable to coordinate recruitment of witnesses for their upcoming trial.

Although Goff and Rose were ultimately unsuccessful in that case, the case

was decided on its merits 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 of Magistrate Judge Celeste

F. Bremer). It cannot, therefore, be characterized accurately as

“frivolous.” We believe that Goff and Rose have shown that a non-frivolous

claim was impeded by the prison’s policy, see Lewis, supra, 116 S. Ct. at

2181, and that they therefore 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.

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The defendants argue that even if Goff and Rose have standing to

challenge ISP’s policy on co-plaintiff communications, the restriction was

reasonably related to a legitimate penological interest, and therefore

constitutional. Turner v. Safley, 482 U.S. 78, 89 (1987). They explain

that the principal justification for the policy is security. A deputy

warden testified that the restriction precludes inmates from disseminating

information about a transferee to inmates in his new facility. This is

particularly important when the person is being transferred for his own

safety, for example, if he has been identified as a “snitch.” The second

reason for the policy that the deputy warden offered 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 the

system that allowed inter-unit mail were minimal, but our reading of the

transcript leads us to disagree, as the warden repeatedly insisted that

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

prison policy upheld in Turner, 482 U.S. at 91-93, except that there the

prison allowed legal correspondence. In Turner, the regulation was

challenged as a First Amendment violation; here, as a restriction on the

right to meaningful access to the courts as explained in Bounds v. Smith,

430 U.S. 817 (1977). Turner provides no difference in the level of

justification a prison must have depending on the source of the

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.

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right held by prisoners, but achieves its end (preventing inciting

information from being transmitted to other units) by means similar (a ban

on inter-unit mail) to those held constitutional in Turner. Therefore,

3

we conclude that the ban on inter-unit correspondence is permissible under

the Constitution and reverse the District Court’s grant of an injunction

against it.

C.

The District Court also ordered that ISP provide a means for the

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 jailhouse lawyer shortly before he is transferred to ask

what legal papers should remain, determine to whom they belong (by scanning

them briefly), and ensure the return of the documents to their owner.

Defendants contend that Goff and Rose do not have standing to challenge

this policy because they were not themselves injured by it. The District

Court found, to the contrary, that Rose lost legal papers critical to his

post-conviction proceedings when Goff, who possessed 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 who are deprived of their papers in the same way, an injunction

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, they explain that the policy is consistent with halting the

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, ISP

contends it is burdensome to supply a prison official to attend to such

matters upon the transfer of anyone claiming to be a jailhouse lawyer.

Together, the defendants argue, these reasons make the policy

constitutional under Turner.

The taking of an inmate’s legal papers can be a constitutional

violation when 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 of

access to the courts. We will not deny relief on the unsupported

assumption that the papers involve only frivolous claims. Therefore, the

destruction or withholding of inmates’ legal papers burdens a

constitutional right, and can only be justified if it is reasonably related

to a legitimate penological interest. Turner, supra.

The defendants’ proffered justifications do not persuade us that the

District Court’s injunction was incorrectly issued. The lawyer-client

relationship is already 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 constitutes

a worrisome free passage of paper. We also believe that the feared

transfer of contraband can be avoided by an official’s scanning the

documents before he returns them. Moreover, the most persuasive

justification for prohibiting inter-unit correspondence is not present

here: the documents stay within their original unit and there is,

therefore, no opportunity to communicate information about inmates to other

units. 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 is

destroyed. We therefore conclude that the District Court correctly issued

an injunction against the practice, and the relief granted was appropriate.

IV.

We conclude that the plaintiffs do not have standing to challenge

ISP’s policy restricting inter-unit correspondence, except for that between

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-unit

correspondence between co-plaintiffs is constitutional and therefore vacate

the District Court’s injunction against this policy. We hold that the

failure to provide for the return of an inmate’s legal documents to him

does violate 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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A true copy.

Attest:

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