The HONORABLE JAMES M. MOODY, United States District Judg e * 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 LO KEN, Circuit Judges, and MOODY, District Judge. *

___________ LOKEN, Circuit Judge.

Nebras ka inmate Dennis Gardner seeks relief under 42 U.S.C

. § 1983 , alleging that prison officials have twice opened hi s incoming legal mail. Defendants appeal the district court's denial of summary judgment on qualified immunity grounds. We reverse.

I.-2-

Mary Howard is a Mail Clerk in the Omaha Correctional Center mailroom. On March 1, 1995, she accidentally opened an incoming-3-

envelope containing confidential correspondence from Gardner' s attorney. Realizing her mista ke, 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. Dire ctor Harold Clarke's subordinate in charge of responding t o such grievances denied further relief, advising Gardner, "I do not know what further action you request."
On April 13, 1995, Gardner's m ail 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 envelo pe] was taped," an d returned the form to Howard in the mailroom. Th e mailroomopens mail with a slitting machine. Knowing that som e senders tape envelope flaps down, Howard sent Gardner a note asking whether the top of the envelope had been slit. Gardner did no t respond. An affidavit by the case worker submitted in support of summary judgment states that the envelope was not slit.

Gar dner then filed this § 1983 action for damages an d inju nctive relief against Howard, Dahm, and Clarke in thei r individual and official capacities. Defendants moved for summary judgment, submitting affidavit s explaining the Department's policy regarding incoming legal mail and setting forth facts regard ing the March 1 and April 13 incidents involving Gardner's mail. Gardner, represented by counsel, submitted a two-page affidavit averring:

4. I n spite of the aforementioned grievanc e [concerning the March 1 incide nt], on or about April 13,-4-

1995 your affiant received legal mail from the Unite d States District Court which ha d been opened prior to his receipt thereof.-5- 5. On good faith, information and belief, you r 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 o n whether "the incidents of unlawful opening of legal mail are o f such q uantity and degree . . . that constitutionally sufficien t remedies should have been impl emented but were not." The district
co urt denied defendants summary judgment on Gardner's individua l capacity claims. Defendants a ppeal the qualified immunity portion of that ruling.

II.

Qu alifiedimmunity shields government officials from § 198 3 damage liability unless their conduct violates "clearly esta blished stat utoryor constitutional rights of which a reasonable perso n would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). We may consider by interlocutory appeal whether conduct fairl y attributable to defendants for summary judgment purposes violated clearly established law. See Behrens v. Pelletier , 116 S. C t. 834, 842 (1996); Allison v. Department. of Corrections , 94 F.3d. 494 , 496 (8th Cir. 1996).

Gardner alleges that defendants violated his clearl y esta blishedconstitutional right not to have confidential lega l mail opened outside his presence. In Wolff v. McDonnell , 4 18 U.S. 539 , 576-77 (1974), the Supreme Court considered the question o f incoming legal mail and concluded:
[T]he question is whether, assuming some constitutional right is implicated, it is infringed by the procedure no w foundacceptable by the State. . . . [W]e think that [th e pr isonofficials], by acceding to a rule whereby th e-6-

inmate is present when mail fr om attorneys is inspected, have d one all, and perhaps even more, than th e Constitution requires.-7-

Here, defendants' undisputed affidavits establish the releva nt polic yof the Nebraska Department of Correctional Services

. Properly marked legal mail is opened only in the presence of th e inmate. When such mail is received, mailroom staff attach a Confid ential Mail Receipt Form to the envelope, and a priso n official delivers it to the inmate where it is opened and in spected for co ntraband in his presence. All other mail is opened in th e mailroom by a slitting machine and inspected for contraband before delivery. As our decision in Harrod v. Halford , 773 F.2d 23 4, 235- 36 (8th Cir. 1985), cert. denied , 476 U.S. 1143 (1986), make s clea r, the Department's policy meets or exceeds the minimu m constitutional standards under Wolff . Given defendants' proof of
a g eneral policy that meets constitutional requirements, th e qual ifiedimmunity issue turns on the specific incidents i n question and must be addressedseparately for each defendant. See Jones v. Coonce , 7 F.3d 1359, 1365 (8th Cir. 1993).

Warden Dahm. Warden Dahm received Gardner's initial grievan ce and upheld it, concluding that Gardner's March 1 letter should not have be en opened outside his presence. Dahm did not rule o n Gardner's step two grievance. There is no evidence he even knew of the April 13 incident, as to which Gardner filed no grievance

. Gardne r'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 M OORE ' S F EDERAL P RACTICE , Part 2, ¶ 56.22[1] , at pp. 56-743-46 (2d ed. 1996). Thu s, the summary judgment record contains no evidence that Dahm kn owinglydeprived Gardner of a constitutional right, wa s deliberately indifferent to a violation, or failed to supervise or tra inhis subordinates. Dahm is entitled to qualified immunity

. See Ricker v. Leapley , 25 F.3d 1406, 1412 (8th Cir. 1994).-8--9-

Direct or Clarke. Director Clarke delegated the task o f respon ding to Gardner's step two grievance to another Departmen t official. Thus, Clarke had no involvement in this specifi c dispute. He is the Director of a Department that has promulgated
a constitutionally appropriate policy regarding incoming inmat e legal mail. Clarke is entitled to qualified immunity.

Mail Clerk Howard. Howard violated Department policy by inadvertentlyopening an envelope containing Gardner's incomin g le gal mail. Gardner was upset that Dahm did not punish Howar d through th e grievance process for her error. But there is n o § 1983 liability for violating prison policy. Gardner must prove that Howard violated his constitutional right to receive mai l or to access the courts.

In Jensen v. Klecker , 648 F.2d 1179, 1182 (8th Cir. 1981) , this c ourt cited Wolff for a broad proposition: "Privilege d priso ner mail, that is mail to or from an inmate's attorney an d identi fiedas such, may not be opened for inspections fo r contraband except in the presence of the prisoner." However, the record in Jensenincluded evid ence of deliberate, repeated opening of an inmate's confidential, well-marked attorney mail. We hav e never held or suggested that an isolated, inadvertent instance of opening incoming confidential legal mail will support a § 198 3 damage action. Rather, we agree with other circuits that a n "i solatedincident, without any evidence of improper motive o r resulting interference with [the inmate's] right to counsel or to
access to the courts, does not give rise to a constitutiona l 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).-10-

The act of opening incoming mail does not injure an inmate's right to access the courts. T he policy that incoming confidential legal mail should be opened in inmates' presence instead ser ves theGard ner argues that Howard is not eligible for qualifie d 1 immunity because she was not engaged in a discretionary act, citing Howar dv. Adkison , 887 F.2d 134, 140 (8th Cir. 1989). However , Howard exercised discretion wh en she determined what incoming mail qualified as confidential legal mail under the Department's policy.

-11-prophylactic purpose of assuring them that confidential attorneyclient mail has not been impro perly 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 lega l mail cannot be actionable under § 1983, particularly when it i s followedby the corrective action Howard took after she opene d Gar dner's envelope on March 1, because "[t]o assert a successfu l claim for denial of meaningful access to the courts . . . aninmate
mus t 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 tape d that envelope. Howard is entitled to qualified immunity. 1

Gard ner's Claim for Injunctive Relief. Qualified immunit y bar s Gardner's damage claims but not his claim for injunctiv e relief. We have jurisdiction to consider the denial of summar y judgment on this claim if it is "inextricably intertwined" w ith 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. 156 5 (1996).

Defendants have demonstrated that the Department's polic y meets or exceeds constitutional requirements. Thus, only pr obative evidence of a persistent, unconstitutional disregard of that policy
wou lddefeat summary judgment dismissing Gardner's claim fo r injunctive relief. Gardner has evidence that one piece of i ncoming-12-

legal mail was inadvertently slit open, contrary to the poli cy, and another was taped shut by an unknown person. Gardner also avers-13-

"that other inmates have had their legal mail opened prior to the
rec eipt thereof," but that assertion is unsupported and of n o evi dentiaryvalue. Thus, for the same reasons that qualifie d 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 justif y denial or delay of summary judgment. If prison officials ro utinely ignore the Department's policy regarding incoming legal mail , inm ate Gardner could have submitted one or more Rule 56(e ) affidavits detailing other violations, like the supportin g affidavit from ten other inmat es in Weiler v. Purkett , No. 96-1022 (8th Cir. Jan. 3, 1997). At a minimum, he could have submitted a Rul e 56(f) affidavit explaining in detail what evidence could b e obtained from other inmates if the court delayed a summary j udgment ruling. Absent that kind of s pecific showing, Rule 56(f) does not cond one a fishing expedition through the Department's grievanc e files searching for documents that might confirm Gardner' s "in formationand belief." See Humphreys v. Roche Biomed. Labs. , Inc. , 99 0 F.2d 1078, 1081 (8th Cir. 1993); Nickens v. White , 62 2 F.2d 967, 970 (8th Cir.), cert. denied , 449 U.S. 1018 (1980).
Paragraphs 1 and 3 of the dist rict court Order dated February 23, 1996, are reversed. The c ase is remanded with instructions to enter judgment in favor of all defendants.

A true copy.

Attest:

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