United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 96-1022

___________ Clyde Weiler, *
* Appellee, *
* Appeal from the United States v. * District Court for the
* Eastern District of Missouri. James Purkett; Leah Embly, *
* Appellants. *

___________ Submitted: September 9, 1997 Filed: March 2, 1998

___________ Before RICHARD S. ARN OLD, Chief Judge, HEANEY, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, en banc.

___________ BEAM, Circuit Judge. In this six-year-old section 1983 la wsuit, Clyde Weiler asserts that the defendants, priso n officials at the Farmington, Missouri Correctional Facility, violated hi s constitutional rights when they refused to deliver
a package to him that did not conform to prison regulations. A panel of this court affirmed t he district court's denial of summary judgment based on qualified immunity . Our decision to grant en banc review vacated that opin ion. See Weiler v. Purkett , 104 F.3d 149 (8th Cir. 1997). We no w reverse.

## Farmington regulations provide that an inmate who has been mailed contraband 1 

## may pay to have the item mailed to another party, may send the property out with a visitor, or may direct the mailroom to donate the property to charity or to destroy the offending item. When Weiler did not respond, the package was destroyed. When Weiler discovered that the package had been destroyed, he filed a second 2 

## suit against these defendants and their counsel. That suit was consolidated with thi s one in Weiler v. Purkett , Nos. 94-1665/93-2041, 1995 WL 21660, at *2 ( 8th Cir. 1995) (per curiam).
-2- I. BACKGROUND

This case involves two rules regarding inmate mail within th e Missouri state prison system. One allows inmates to receive packages only , with c ertain limited exceptions not relevant here, from attorneys an d approv ed vendors. A second regulation affords special treatment fo r "pr ivileged mail" but limits that category to correspondence to or fro m judges, attorneys, courts, or government officials. On September 11, 1991 , th e Farmington, Missouri Correctional Center (Farmington) received a package addressed to inmate Clyde Weiler. Interpreted in the light most favorab le to Weiler, the record indicates that the package was marke d "legal materials" and the sender was Weiler's son, who is not a judge , attorney, or governme ntal official. Leah Embly, the mailroom supervisor, did not deliver the package because it was neither privileged mail nor fro m an app roved vendor. Instead, she delivered a "contraband receipt " inf orming Weiler that a nonconforming package addressed to him had bee n received, and request ing directions on how he wished to have the property dispatch ed. Weiler sued Embly and James Purkett, the priso n 1 superintendent, under 42 U.S.C. § 1983, seeking six million dollars i n damages. 2

Defendant s moved for summary judgment, claiming qualified immunity. In opposition, Weiler filed an affidavit signed by ten inmates asserting that t hey had received packages from family members containing lega l materials. The distr ict court granted the defendants' motion for summary judgment. Weiler appealed. A divided

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panel of this court reversed, holding that the affidavit created a questio n of fact as to the leg itimacy of the regulations. Weiler v. Purkett , Nos. 94-1665/93-2041, 1995 WL 21660 (8th Cir. 1995) (per curiam) ( Weiler I ).
On remand, defendants supplemented the record with evidence tha t they were not aware of irregularities in the applicat ion of the mail procedure. They again moved for summary judgment based on qualified immunity, arguing that isolated misapplication of regulations by o ther corrections employees does not render the rules themselves invalid. The district court denied the motion. Defendants appeal.

II. DISCUSSION
Qualified immunity shields government actors from suit when, " a reasonable officer could have believed [the cha llenged act] to be lawful, in light of clearly established law and the information the [defendant]s possessed." Anderson v. Creighton , 483 U.S. 635, 641 (1987). The Suprem e Cou rt recently reiterated the importance of qualified immunity i n "protecting government's ability to perform its traditional functions by providing immunity where necessary to preserve the ability of government officials to serve the public good or to ensure that talented candidates [are] not deterred by the threat of damages suits from entering publi c service." Richardson v. McKnight , 117 S. Ct. 2100, 2105 (1997) (quotation s omitted).
In determining an official's entitlement to immunity, the court s undertak e a two-pronged analysis. First, the court must see if a deprivation of constitutional magnitude has been alleged. If so, the cour t must determine if tha t right was so clearly established that a reasonable pu blic official would have known his or her conduct violated th e Constitution at the time of the act. We consider each question in turn.

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A. Allegation of a Constitutional Right

"An ecessary concomitant to the determination of whether th e constitutional right asserted . . . is 'clearly established' at the time the def endant acted is the determination of whether the plaintiff ha s asserted a violation of a constitutional right at all." Siegert v. Gilley , 500 U.S. 226, 232 (1991). The first step in this process is critica l becaus e resolution "of this purely legal question permits court s expeditiously to weedout suits which fail the test." Id . In this case, despit e six years of litigation, including numerous submissions to th e district court and three different arguments to this court, it is still no t exactly clear what constitutional right Weiler seeks to vindicate. He has , at various times, claimed interference with his right to receive mail , obstruction of his right of access to the courts , violation of substantive due process, and deni al of equal protection of the laws. Weiler has also maintained at times that the regulations themselves are invalid and a t other times that the facially valid regulations were only unconstitutional
as applied to him. None of these assorted allegations, however, withstand s careful scrutiny.

1. Right to Receive Mail

The dis trict court held that Weiler had alleged a violation of hi s First Amendment right to receive mail. Although it is well settled that inmates have a right to receive mail, that right may be limited by prison regula tions that are reasonably related to legitimate penologica l interests. Turner v. Safley , 482 U.S. 78, 92 & 89 (1987).
It is clear that a regulation limiting the receipt of packages is not facially invalid. In Bell v. Wolfish , 441 U.S. 520, 555 (1979), th e Supreme Court approved a total ban on the receipt of packages containing food or personal property except for one package of food at Christmas , saying, it is "all too obvious that such packages are handy devices for th e smuggling of contraband.”

## -5- The next question is whether the regulation violated the Consti tution as applied to Weiler. As earlier noted, Weiler filed an affidavit of ten Fa rmington inmates claiming that on unspecified dates under unstate d circu mstances from unidentified mailroom personnel each of them ha d received legal papers and transcripts from “family or friends.” Applying Griff in v. Lombardi , 946 F.2d 604 (8th Cir. 1991), the district court , relying on our opinion in Weiler I , held that this affidavit was sufficien t to subject a package regulation that otherwise passes constitutional muste r under Supreme Court edict to “factual” uncertainty as to it s reasonableness. This rationale simply misapplies Griffin and the law of this circuit.

Whether the ten inmates did or did not receive legal papers maile d by r elatives and friends does not control whether the regulation wa s invalid as applied to Weiler. The ultimate lega l question is whether this rule is "reasonably related to legitimate penolo gical interests." Turner , 482 U.S. at 89.

We find it beyond dispute that packages may easily concea l contraband, and that the control of contraband i s a legitimate penological interest. Thus, even if 100 inmates had received legal papers through a break down in mailroom procedures, and were willing to so state b y affid avit, the reasonableness of legal mail or package regulations , desig ned to control receipt of contraband to inmates, would be no les s constitutional. There is no evidence that the ten inmates who receive d packages in contraven tion of prison rules also did not receive contraband concealed in those packages. Given the great deference we owe to prison authorities in their administration of state pri son systems, id. at 85, we cannot say that this regulation is an exaggerate d response to the prison's securi tyconcerns. Therefore, the defendants did not violate th e Constitution when they applied the rule to Weile r. Weiler has not alleged a violation of his constitutional right to receive mail.

## W eiler also failed to demonstrate any prejudice caused by the allege d 3 

## interferencewith his attempts to petition the judiciary, a necessary element to such a claim. Berdella v. Delo , 972 F.2d 204, 210 (8th Cir. 1992).
-6- 2. Right of Access to the Courts

Aprison policy that obstructs privileged inmate mail can violat e inmates' right of access to the courts. See , e. g. , Jensen v. Klecker , 648 F.2d 1179, 1182-83 (8 th Cir. 1981). Weiler, however, has not established anyinterference with legal mail. The regulation defines legal mail a s correspondence from a n attorney, judge or elected official. This type of formulation has been expressly approved by the Supreme Court. Wolff v

. McDonnell , 418 U.S. 539, 576 (1974) ( "We think it entirely appropriat e that the State requir e [legal mail] to be specially marked as originating froman at torney. . . ). The Farmington rule, even more generous t o inmate s than the Wolff requirements, passes constitutional muster as a matter of law. Since the package came from a family member, not a person
or en tity specified in the rule, it was not legal mail. Weiler has no t 3 alleged a violation of his constitutional right of access to the courts.

3. Substantive Due Process

Substantive due process prevents the government from engaging i n conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. United States v. Salerno , 481 U.S. 739, 746 (19 87). There are two different ways of stating a substantive du e process claim. First , the state violates substantive due process when it infringes “fundamental” liberty interests, witho ut narrowly tailoring that interference to serve a compelling state interest. Reno v. Flores , 50 7 U.S. 292, 301-02 (1993). Second, the state violates substantive du e process when it engages in conduct that is so outrageous that it shocks th e consci ence or otherwise offends "judicial notions of fairness, [or is ] offensive to human dignity.” Weimer v. Amen , 870 F.2d 1400, 1405

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(8th Cir. 1989) (quotations omitted). We have been wary of extendin g substantive due process into new arenas. Brown v. Nix , 33 F.3d 951, 953 (8th Cir. 1994).

Weiler h as failed to allege either type of substantive due proces s claim. First, whatev er the precise definition of a fundamental right may be, we are confident that Weiler has not been denied one here. A prisoner's entitlemen t to delivery of packages from family members is not a right “rooted in the traditions and conscience of our people." Salerno , 481 U.S. at 751 (quotations omitted). Furthermore, Weiler has failed to point to any outrageous conduct by defendants that shocks the conscious. His b urden is to establish that the government action complained of i s “truly irrational,” that is, “'something more than . . . arbitrary , capricious, or in violation of state law.'” Chesterfield Dev. Corp. v

. Cityof Chesterfield , 963 F.2d 1102, 1104 (8th Cir. 1992) (quoting Lemke
v. Cass County, Nebraska , 846 F.2d 469, 472 (8th Cir. 1987) (en banc ) (A rnold, J. concurring)). The most that can be said of Weiler' s allegations here is that the defendants did not ensure that the packag e rule was enforced without exception. Weiler has not alleged a violation of his constitutional right to substantive due process.

4. Equal Protection

The h eart of an equal protection claim is that similarly situate d cla sses of inmates are treated differently, and that this difference i n treatm ent bears no rational relation to any legitimate penal interest

. Timm v. Gunter , 917 F.2d 1093, 1103 (8th Cir. 1990). The Supreme Court ha s explained that “if a law neither burdens a fundamental right nor targets a suspect class, we w ill uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer v. Evans , 116 S. Ct. 1620, 1627 (1996).

Weiler has not identified any classification system by which th e defe ndants determined who would receive nonconforming packages and wh o would not. A few

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individual examples of unequal treatment are “in sufficient to provide more th an minimal support to an inference of classwide purposefu l discri mination.” Inmates of Neb. Penal and Correctional Complex v

. Greenholtz , 567 F.2d 1368, 1381 (8th Cir. 1977). Weiler has presented no evidence that any dif ference in treatment was motivated by his membership in a protected class nor that it burdened a fund amental right. Weiler has not alleged a violation of his constitutional right to equal protection.

B. Contours of the Right as "Clearly Established"
Normally, a determination that the plaintiff has failed to allege a violation of a constitutional right ends the qualified immunity inquiry. See , e.g. , Thomas v. Hungerford , 23 F.3d 1450, 1452-54 (8th Cir. 1994 ) (d efendants entitled to qualified immunity because no constitutiona l violation alleged). Even if this were not so, Weiler could not prevail under the second prong of qualified immunity.
The Supreme Court has directed court s to examine pre-existing law to
see if it would be apparent to reasonable officials that their action s were unconstitutional. See Anderson , 483 U.S. at 640; Mitchell v. Forsyth , 472 U.S. 511, 530 (1985). Here, given the Supreme Court's holdings i n Turner , 482 U.S. at 89, Bell , 441 U.S. at 555, and Wolff , 418 U.S. a t 576- 77, no reasonable official could have believed that refusing t o deliver Weiler's package to him violated clearly established constitutiona l principles governing prisoner mail. Thus, even if Weiler had alleged a transgression of constitutional magnitude, the defendants would still be entitled to qualified immunity.

III. CONCLUSION

The defendants are entitled to qualified immunity. The distric t court is reversed, and this case remanded for entry of judgment in favor of the defendants.

## -9- JOHNR. GIBSON, Circuit Judge, with whom Heaney and McMillian , Circuit Judges, join, dissenting.

I respec tfully dissent. The court today simply ignores the recor d before the district court and principles restrai ning our review of motions on summary judgment. This case presents a factual dispute relevant to whether the rule in questi on is rationally related to a governmental interest that i s legitimate and neutra l

. See Turner v. Safley , 482 U.S. 78, 89-90 (1987). Both the rationality of the rule and its neutrality are put into question by the evidence Weiler has presented.
Althoughthe "rational relation" standard is appropriatel y deferential to the judgment of prison administra tors, it does not make the prison officials' explanations for their actions the last and only word to be cons idered on the subject. A prisoner can still prevail by showin g that a prison policy is "an exaggerated response to [stated] securit y objectives," id. at 97-98, as did the prisoners challenging the marriage regulations in Safley . One way of showing such an exaggerated response is by showing that the prison officials have not thought it necessary t o impose the restriction on other similarly situated prisoners. Fo r instance, in Safley , the stated reason for withholding approval of women inmates' marriages was to promote rehabilitation by avoiding "dependency. " The rationality of that justification was rendered suspect by evidence tha t the marriages of male inmates were routinely approved. The Supreme Court stated , "That kind of lopsided rehabilitation concern cannot provide a ju stification for the broad Missouri marriage rule." Id. at 99

. Similarly , in Thornburgh v. Abbott , 490 U.S. 401, 417 n. 15 (1989), th e Court stated that claims of inconsistency in application of a rule went "t o the adequacy of the r egulations as applied, and [should be] considered on remand." In the same vein, we held that uneven application of rules raise d factual issues as to whether those rules were rationally related t o announced security concerns in Griffin v. Lombar di , 946 F.2d 604, 608 (8th Cir. 1991), and Thong vanh v. Thalacker , 17 F.3d 256, 259 (8th Cir. 1994). If the factual record in a

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case shows that the prison officials thought so little of the need for the rule that they neglec ted to enforce it, their actions are relevant to the issue of whether ther e was enough need to justify the rule's entrenchment on the prisoner's (admittedly abridged) First Amendment rights.

The rec ord in this case contains both evidence of such neglect an d evidence that the rule was enforced. Weiler presented the affidavits of ten inmates who said they had received legal papers from family or friends , despite the existence of the rule under which Weiler's papers wer e confiscated. The pri son mail room supervisor, Leah Embly, and the prison super intendent, James Purkett, submitted affidavits that, to thei r knowledge, "there has never been an exception made to those policies eithe r officially or unofficially." Weiler's side of t he story, with permissible infere nces, would indicate that enforcement of the rule was arbitrar y rather than rational. See Thongvanh , 13 F.3d at 259. We cannot choos e between contradictory accounts on motion for summary judgment.

The evide nce of irregularity in enforcement is also relevant to the neutrality of the rule as applied. If the rule is not enforced as written but is occasionally invoked, one can infer that it is enforced according to some other less neutral principle than that stated.

The fa ctual dispute about how this rule was applied should not b e resolv ed on motion for summary judgment. Accordingly, I respectfull y dissent.

A true copy.

Attest:

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