The HONORABLE JAMES M. MOODY, United States District Judge

*

for the Eastern District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-1889

___________

Dennis James Gardner, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska

Mary Howard; John Dahm, *

Warden, Omaha Correctional *

Center; Harold W. Clarke, *

Director, Nebraska Department *

of Correctional Services, *

*

Defendants - Appellants. *

___________

 Submitted: November 22, 1996

 Filed: March 12, 1997

___________

Before BEAM and LOKEN, Circuit Judges, and MOODY, District Judge. *

___________

LOKEN, Circuit Judge.

Nebraska inmate Dennis Gardner seeks relief under 42 U.S.C.

§ 1983, alleging that prison officials have twice opened his

incoming legal mail. Defendants appeal the district court's denial

of summary judgment on qualified immunity grounds. We reverse.

I.
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Mary Howard is a Mail Clerk in the Omaha Correctional Center

mailroom. On March 1, 1995, she accidentally opened an incoming
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envelope containing confidential correspondence from Gardner's

attorney. Realizing her mistake, Howard stapled the envelope shut

without reading or inspecting its contents. Howard attached a

Confidential Mail Receipt Form to the envelope and delivered it to

Gardner, who then filed a grievance. Warden John Dahm upheld the

grievance, apologizing to Gardner in writing for this mistake and

advising mailroom staff of the error. Unsatisfied, Gardner filed

a step two grievance with the Department of Correctional Services.

Director Harold Clarke's subordinate in charge of responding to

such grievances denied further relief, advising Gardner, "I do not

know what further action you request."

On April 13, 1995, Gardner's mail included an envelope from a

court which had tape over the sealing flap. Gardner wrote on the

Confidential Mail Receipt Form that the envelope "[a]ppeared to be

opened." A case worker wrote on the form, "Yes, [the envelope] was

taped," and returned the form to Howard in the mailroom. The

mailroom opens mail with a slitting machine. Knowing that some

senders tape envelope flaps down, Howard sent Gardner a note asking

whether the top of the envelope had been slit. Gardner did not

respond. An affidavit by the case worker submitted in support of

summary judgment states that the envelope was not slit.

Gardner then filed this § 1983 action for damages and

injunctive relief against Howard, Dahm, and Clarke in their

individual and official capacities. Defendants moved for summary

judgment, submitting affidavits explaining the Department's policy

regarding incoming legal mail and setting forth facts regarding the

March 1 and April 13 incidents involving Gardner's mail. Gardner,

represented by counsel, submitted a two-page affidavit averring:

4. In spite of the aforementioned grievance

[concerning the March 1 incident], on or about April 13,
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1995 your affiant received legal mail from the United

States District Court which had been opened prior to his

receipt thereof.
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5. On good faith, information and belief, your

affiant is aware that other inmates have had their legal

mail opened prior to the receipt thereof. 

Gardner's affidavit concluded with a request for discovery on

whether "the incidents of unlawful opening of legal mail are of

such quantity and degree . . . that constitutionally sufficient

remedies should have been implemented but were not." The district

court denied defendants summary judgment on Gardner's individual

capacity claims. Defendants appeal the qualified immunity portion

of that ruling.

II.

Qualified immunity shields government officials from § 1983

damage liability unless their conduct violates "clearly established

statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

We may consider by interlocutory appeal whether conduct fairly

attributable to defendants for summary judgment purposes violated

clearly established law. See Behrens v. Pelletier, 116 S. Ct. 834,

842 (1996); Allison v. Department. of Corrections, 94 F.3d. 494,

496 (8th Cir. 1996). 

Gardner alleges that defendants violated his clearly

established constitutional right not to have confidential legal

mail opened outside his presence. In Wolff v. McDonnell, 418 U.S.

539, 576-77 (1974), the Supreme Court considered the question of

incoming legal mail and concluded: 

[T]he question is whether, assuming some constitutional

right is implicated, it is infringed by the procedure now

found acceptable by the State. . . . [W]e think that [the

prison officials], by acceding to a rule whereby the
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inmate is present when mail from attorneys is inspected,

have done all, and perhaps even more, than the

Constitution requires.
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Here, defendants' undisputed affidavits establish the relevant

policy of the Nebraska Department of Correctional Services.

Properly marked legal mail is opened only in the presence of the

inmate. When such mail is received, mailroom staff attach a

Confidential Mail Receipt Form to the envelope, and a prison

official delivers it to the inmate where it is opened and inspected

for contraband in his presence. All other mail is opened in the

mailroom by a slitting machine and inspected for contraband before

delivery. As our decision in Harrod v. Halford, 773 F.2d 234, 235-

36 (8th Cir. 1985), cert. denied, 476 U.S. 1143 (1986), makes

clear, the Department's policy meets or exceeds the minimum

constitutional standards under Wolff. Given defendants' proof of

a general policy that meets constitutional requirements, the

qualified immunity issue turns on the specific incidents in

question and must be addressed separately for each defendant. See

Jones v. Coonce, 7 F.3d 1359, 1365 (8th Cir. 1993).

Warden Dahm. Warden Dahm received Gardner's initial grievance

and upheld it, concluding that Gardner's March 1 letter should not

have been opened outside his presence. Dahm did not rule on

Gardner's step two grievance. There is no evidence he even knew of

the April 13 incident, as to which Gardner filed no grievance.

Gardner's unsupported assertion that he has "information and [a]

belief" that other inmates' legal mail has been opened is not the

kind of evidentiary affidavit that will defeat a properly supported

motion for summary judgment. See JRT, Inc. v. TCBY Systems, Inc.,

52 F.3d 734, 738 (8th Cir. 1995); Fed. R. Civ. P. 56(e); 6 MOORE'S

FEDERAL PRACTICE, Part 2, ¶ 56.22[1], at pp. 56-743-46 (2d ed. 1996).

Thus, the summary judgment record contains no evidence that Dahm

knowingly deprived Gardner of a constitutional right, was

deliberately indifferent to a violation, or failed to supervise or

train his subordinates. Dahm is entitled to qualified immunity.

See Ricker v. Leapley, 25 F.3d 1406, 1412 (8th Cir. 1994).
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Director Clarke. Director Clarke delegated the task of

responding to Gardner's step two grievance to another Department

official. Thus, Clarke had no involvement in this specific

dispute. He is the Director of a Department that has promulgated

a constitutionally appropriate policy regarding incoming inmate

legal mail. Clarke is entitled to qualified immunity.

Mail Clerk Howard. Howard violated Department policy by

inadvertently opening an envelope containing Gardner's incoming

legal mail. Gardner was upset that Dahm did not punish Howard

through the grievance process for her error. But there is no

§ 1983 liability for violating prison policy. Gardner must prove

that Howard violated his constitutional right to receive mail or to

access the courts.

In Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981),

this court cited Wolff for a broad proposition: "Privileged

prisoner mail, that is mail to or from an inmate's attorney and

identified as such, may not be opened for inspections for

contraband except in the presence of the prisoner." However, the

record in Jensen included evidence of deliberate, repeated opening

of an inmate's confidential, well-marked attorney mail. We have

never held or suggested that an isolated, inadvertent instance of

opening incoming confidential legal mail will support a § 1983

damage action. Rather, we agree with other circuits that an

"isolated incident, without any evidence of improper motive or

resulting interference with [the inmate's] right to counsel or to

access to the courts, does not give rise to a constitutional

violation." Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990);

see Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975),

cert. denied, 424 U.S. 973 (1976). 
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The act of opening incoming mail does not injure an inmate's

right to access the courts. The policy that incoming confidential

legal mail should be opened in inmates' presence instead serves the
 Gardner argues that Howard is not eligible for qualified

1

immunity because she was not engaged in a discretionary act, citing

Howard v. Adkison, 887 F.2d 134, 140 (8th Cir. 1989). However,

Howard exercised discretion when she determined what incoming mail

qualified as confidential legal mail under the Department's policy.

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prophylactic purpose of assuring them that confidential attorneyclient mail has not been improperly read in the guise of searching

for contraband. See Harrod, 773 F.2d at 235; Morgan, 516 F.2d at

1371. Given this limited purpose, inadvertent opening of legal

mail cannot be actionable under § 1983, particularly when it is

followed by the corrective action Howard took after she opened

Gardner's envelope on March 1, because "[t]o assert a successful

claim for denial of meaningful access to the courts . . . an inmate

must demonstrate that he suffered prejudice." Berdella v. Delo,

972 F.2d 204, 210 (8th Cir. 1992). Regarding the second incident

on April 13, Gardner has no evidence that Howard opened or taped

that envelope. Howard is entitled to qualified immunity.1

Gardner's Claim for Injunctive Relief. Qualified immunity

bars Gardner's damage claims but not his claim for injunctive

relief. We have jurisdiction to consider the denial of summary

judgment on this claim if it is "inextricably intertwined" with the

issue of qualified immunity. See Swint v. Chambers County Comm'n,

115 S. Ct. 1203, 1212 (1995); Kincade v. City of Blue Springs, 64

F.3d 389, 394-95 (8th Cir. 1995), cert. denied, 116 S. Ct. 1565

(1996).

Defendants have demonstrated that the Department's policy

meets or exceeds constitutional requirements. Thus, only probative

evidence of a persistent, unconstitutional disregard of that policy

would defeat summary judgment dismissing Gardner's claim for

injunctive relief. Gardner has evidence that one piece of incoming
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legal mail was inadvertently slit open, contrary to the policy, and

another was taped shut by an unknown person. Gardner also avers
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"that other inmates have had their legal mail opened prior to the

receipt thereof," but that assertion is unsupported and of no

evidentiary value. Thus, for the same reasons that qualified

immunity bars Gardner's damage claims, defendants are entitled to

summary judgment on the merits of his injunction claim.

Gardner suggests that he is entitled to discovery to support

his assertion of widespread violations of Department policy.

However, paragraph 5 of his affidavit is inadequate to justify

denial or delay of summary judgment. If prison officials routinely

ignore the Department's policy regarding incoming legal mail,

inmate Gardner could have submitted one or more Rule 56(e)

affidavits detailing other violations, like the supporting

affidavit from ten other inmates in Weiler v. Purkett, No. 96-1022

(8th Cir. Jan. 3, 1997). At a minimum, he could have submitted a

Rule 56(f) affidavit explaining in detail what evidence could be

obtained from other inmates if the court delayed a summary judgment

ruling. Absent that kind of specific showing, Rule 56(f) does not

condone a fishing expedition through the Department's grievance

files searching for documents that might confirm Gardner's

"information and belief." See Humphreys v. Roche Biomed. Labs.,

Inc., 990 F.2d 1078, 1081 (8th Cir. 1993); Nickens v. White, 622

F.2d 967, 970 (8th Cir.), cert. denied, 449 U.S. 1018 (1980). 

Paragraphs 1 and 3 of the district court Order dated February

23, 1996, are reversed. The case is remanded with instructions to

enter judgment in favor of all defendants.

A true copy.

Attest:

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