2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-25-2003

Nasir v. Morgan

Precedential or Non-Precedential: Precedential

Docket No. 01-2519

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PRECEDENTIAL

Filed November 25, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2519

ABDUL NASIR

Appellant,

v.

CAPTAIN JAMES MORGAN; SUPERINTENDENT TIMOTHY

B. ENGLISH; THOMAS ALTMAN, MAIL ROOM

SUPERVISOR

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(W.D. PA. CIV. NO. 99-CV-00791)

District Judge: The Honorable Alan N. Bloch

Argued July 9, 2003

BEFORE: NYGAARD and SMITH, Circuit Judges and

IRENAS,* Senior District Judge.

(Filed: November 25, 2003)

Paul W. Schmidt, Esq. (Argued)

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Washington, DC 20004

Counsel for Appellant

* Honorable Joseph E. Irenas, Senior District Judge for the United States

District Court for the District of New Jersey, sitting by designation. 
Calvin R. Koons, Esq. (Argued)

Office of Attorney General of

Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Robert S. Englesberg, Esq.

Office of Attorney General of

Pennsylvania

564 Forbes Avenue, 5th Floor

Manor Complex

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

IRENAS, Senior District Judge:

Presently before the Court is Appellant Abdul Nasir’s

(“Appellant,” “Nasir”) appeal of the Judgment entered by the

United States District Court for the Western District of

Pennsylvania, finding that Appellees Captain James Morgan

(“Captain Morgan”), Superintendent Timothy B. English and

Mail Room Supervisor Thomas Altman did not violate

Nasir’s constitutional rights under 42 U.S.C. § 1983.

Specifically, Nasir argues that: (1) Appellees violated the

First Amendment by banning correspondence between

Nasir and former prisoner Jason Shutt (“Shutt”); and (2)

Appellees violated Shutt’s Fourteenth Amendment due

process rights by failing to inform him of the ban on

correspondence. 

The District Court had jurisdiction pursuant to 28 U.S.C.

§ 1331. This court has jurisdiction pursuant to 28 U.S.C.

§ 1291. Our standard of review applicable to an order

granting summary judgment is plenary. Curley v. Klem, 298

F.3d 271, 276-77 (3d Cir. 2002). In conducting our review,

we view the facts in the light most favorable to the nonmoving party. Doe v. County of Centre, PA, 242 F.3d 437,

446 (3d Cir. 2001). We affirm the judgment of the District

Court, though on different grounds. We may affirm a

District Court’s summary judgment ruling on different

2
grounds, “provided the issue which forms the basis for our

decision was before the lower court.” Morse v. Lower Merion

School District, 132 F.3d 90, 904 n.1 (3d Cir. 1998); see

also Salley v. Circuit City Stores, Inc., 160 F.3d 977, 978 (3d

Cir. 1998). 

I.

In 1999, while an inmate in the State Correctional

Institution at Greensburg, Pennsylvania (“Greensburg”),

Abdul Nasir attempted to correspond by letter with Jason

Shutt, a former inmate with whom Nasir had formed a

romantic relationship. Appellants, who are officials at

Greensburg, blocked this correspondence based on

Pennsylvania Department of Corrections Policy Statement

DC-ADM 803 (“Policy Statement”), which prohibits

correspondence between current and former inmates.1

On April 22, 1999, one week after Shutt was released

from Greensburg, Captain Morgan began monitoring Nasir’s

correspondence. Nasir was expressly ordered to stop all

communications with Shutt on May 4, 1999. The following

day, Morgan discovered mail which he believed Nasir was

attempting to send to Shutt, and filed a report that resulted

in Nasir receiving ninety days of disciplinary confinement.

On May 7, 1999, Nasir’s cell was searched to determine

whether he was complying with the Policy Statement and a

number of different items were seized as a result. Though

Nasir contends that none of the seized items bore any

1. Pennsylvania Department of Corrections Policy Statement DC-ADM

803 and subsection VI (A)(3)(a) reads, in relevant part: 

It is the written policy of the Department of Corrections to provide

inmate access to communication with members of society at large

through the established public mail system and to govern the

inspection of mail, determine the types of publications allowed, and

how they will be reviewed. Restriction to access shall be related

directly to institutional order and obscenity criterion. . . 

3. Inmates are prohibited from: 

(a) Corresponding with inmates, former inmates, parolees,

probationers, co-defendants, or victims of the inmate’s criminal

acts except with the written approval of the Superintendent. 

3
relationship to Shutt, he received another ninety days of

disciplinary confinement based on the search. 

The Greensburg mail logs show that during the relevant

period, the prison confiscated eight pieces of mail that had

been sent to or from Shutt. Five letters were from Shutt or

Shutt’s address, and three were either to Shutt, his

address, or to Nasir’s brother with an enclosed letter to be

forwarded to Shutt. Nasir is now incarcerated at a state

facility in Huntingdon, Pennsylvania, where he is still

subject to the Policy Statement. 

Nasir filed suit in the United States District Court for the

Western District of Pennsylvania on May 21, 1999, claiming

violations of his constitutional rights under 42 U.S.C.

§ 1983; specifically, that Appellees violated the free speech

provisions of the First Amendment and the due process

protections of the Fourteenth Amendment in blocking any

correspondence to and from Shutt. The District Court

granted Defendants’ summary judgment motion.2

On June 13, 2001, Nasir appealed to this Court. On May

31, 2002, a panel of this Court dismissed part of Nasir’s

appeal, but held the appeal to be non-frivolous as to two

issues: (1) whether the Pennsylvania Department of

Corrections’ prohibition on correspondence between

inmates and former inmates is constitutional; and (2)

whether defendants properly notified Jason Shutt when his

letters to Appellant were rejected, whether Appellant has

standing to bring an action based on this failure, and if so,

whether Appellant’s due process rights were violated. 

2. The matter was referred to a Magistrate Judge who issued a Report

and Recommendation on May 17, 2001. See Appellant’s Appendix A 12.

As to incoming mail the Judge said “. . . it is clear that DOC’s

administrative directive is reasonably related to DOC’s legitimate concern

for institutional security.” Appellant’s Appendix A 19. As to outgoing mail

the Judge said that the directive “. . . furthered an important or

substantial governmental interest unrelated to the suppression of

expression, i.e., security, . . . .” Appellant’s Appendix A 20. This Report

and Recommendation was adopted as the opinion of the District Court

on June 6, 2001. Appellant’s Appendix A 10. 

4
II.

We do not find that Pennsylvania Department of

Corrections Policy Statement DC-ADM 803 violates the

First Amendment.3 To reach this conclusion, we rely on two

Supreme Court cases, Turner v. Safley, 482 U.S. 78 (1987)

and Procunier v. Martinez, 416 U.S. 396, (1974), as the

standards governing incoming and outgoing mail. We then

determine that the Policy Statement passes both tests: (1)

the four-part Turner test as to incoming mail and (2) the

two-part Martinez test as to outgoing mail. 

A.

We begin, as did the Supreme Court in Martinez and

Turner, by noting that federal courts must heed the valid

constitutional claims of prison inmates. “Prison walls do

not form a barrier separating prison inmates from the

protections of the Constitution.” Turner, 482 U.S. at 84.

Because prisoners retain their constitutional rights, “[w]hen

a prison regulation or practice offends a fundamental

constitutional guarantee, federal courts will discharge their

duty to protect constitutional rights.” Martinez, 416 U.S. at

405-06. However, “[r]unning a prison is an inordinately

difficult undertaking that requires expertise, planning,” and

regulations to guarantee prison and inmate security.

Turner, 482 U.S. at 84. Prisoner mail is one such area in

which inmate behavior is regulated. 

The Court’s original decision in the field of prisoner mail

was Martinez, which in effect applies a strict scrutiny test

to all restrictions on prisoner correspondence.4 However, in

3. We have permitted the Appellant prisoner in this case to raise the

First Amendment rights of the former prisoner whose First Amendment

rights are also impinged by the ban on correspondence. Martinez

suggests that a total ban on correspondence between two people

implicates the First Amendment rights of both in a way that is

inextricably intertwined. 416 U.S. 396, 408-09 (1974). 

4. Although the Martinez Court never used the words ‘strict scrutiny,’

subsequent Supreme Court cases refer to Martinez as applying strict

scrutiny. See Turner, 482 U.S. at 83. Nevertheless, Justice Blackmun, in

Thornburgh v. Abbott declined to recognize Martinez as calling for a leastrestrictive means test, the hallmark of strict scrutiny analysis. 490 U.S.

401, 411 (1989). 

5
Turner, the Court retreated from the Martinez test and

outlined a more deferential standard — one that the Court

and the Third Circuit have since followed consistently in

prisoners’ constitutional rights cases. However, in a 1989

Supreme Court case, Thornburgh v. Abbott, 490 U.S. 401,

413 (1989), Justice Blackmun suggested that Turner had

not overruled the Martinez two-part test as applied in cases

concerning outgoing mail. 

Martinez concerned a California Department of

Corrections regulation which censored inmate mail deemed

to magnify grievances or contain other inflammatory

statements. 416 U.S. at 316. In finding the regulation

unconstitutional, the Court originally set forth a two-part

test:

First, the regulation or practice in question must

further an important or substantial government

interest unrelated to the suppression of expression.

Prison officials must show that a regulation authorizing

censorship furthers one or more of the substantial

government interests of security, order and

rehabilitation. Second, the limitation of First

Amendment freedoms must be no greater than is

necessary or essential to the protection of the

particular governmental interest involved. 

Martinez, 416 U.S. at 413. 

The Martinez test stood alone in the Court’s discussion of

prisoner mail until the Turner case thirteen years later.

Turner considered a Missouri prison regulation that forbade

communication between inmates at different institutions.

The Court upheld the regulation, and in doing so, laid down

a different standard and test than that in Martinez. It

wrote: “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.”

Turner, 482 U.S. at 89. 

Since the Turner decision, the Supreme Court has

consistently applied the Turner standard to prisoners’

constitutional rights claims. See Shaw v. Murphy, 532 U.S.

223 (2001), (considering a ban on inmate-to-inmate

correspondence that contained legal advice); Washington v.

6
Harper, 494 U.S. 210 (1990) (applying Turner to a

substantive due process challenge to the involuntary

administration of psychotropic drugs to a prisoner who had

a serious mental illness); O’Lone v. Shabazz, 428 U.S. 342

(1987), (upholding the constitutionality on First

Amendment grounds of a prison policy that prevented

Muslim inmates from attending a weekly congregational

service). The Third Circuit has similarly recognized Turner

as the applicable standard in prisoners’ constitutional

rights cases. See, e.g., Doe v. Delie, 257 F.3d 309 (3d Cir.

2001); DeHart v. Horn, 227 F.3d 47 (3d Cir. 2000) (en

banc); Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998);

Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997); Cooper v.

Tard, 855 F.2d 125 (3d Cir. 1988). 

Nevertheless, in Thornburgh v. Abbott, 490 U.S. 401 (D.C.

Cir. 1989), the Supreme Court narrowly construed Turner’s

impact on Martinez. Thornburgh involved a challenge, on

First Amendment grounds, to a District of Columbia prison

regulation governing receipt of subscription publications.

The Court actually applied Turner and upheld the

regulation. In doing so the Court limited Martinez:

[A] careful reading of Martinez suggests that our

rejection of the regulation at issue resulted not from a

least restrictive means requirement, but from our

recognition that the regulated activity centrally at issue

in that case — outgoing personal correspondence from

prisoners — did not, by its very nature, pose a serious

threat to prison security. . . 

Furthermore, we acknowledge today that the logic of

our analyses in Martinez and Turner requires that

Martinez be limited to regulations concerning outgoing

correspondence. . . The implications of outgoing

correspondence for prison security are of a

categorically lesser magnitude than the implications of

incoming materials. 

Id. at 411-13. Thornburgh was, in effect, giving Turner and

Martinez narrow readings to minimize the conflict between

the two cases. However, Thornburgh was a case about

incoming mail. The Court made no judgment as to outgoing

mail, and any suggestion by the Court that Martinez would

7
still apply to outgoing mail was dictum. We note that

Thornburgh refused to apply different standards to

incoming mail from prisoners as opposed to incoming mail

from non-prisoners, notwithstanding the argument that

incoming mail from prisoners is potentially much more

dangerous.5 490 U.S. at 413. Because Thornburgh holds

that Turner does not squarely overrule Martinez as applied

to outgoing mail, we will apply Turner to incoming mail and

Martinez to outgoing correspondence. 

B.

Applying the Turner standard to incoming mail, we find

the Policy Statement reasonably related to legitimate

penological interests. To reach this determination, Turner

prescribes a four-part test. We must consider: (1) whether

there is a valid, rational connection between the prison

regulation and a legitimate governmental interest; (2)

whether alternative means of exercising the right in

question remain open to inmates; (3) the impact

accommodation of the asserted prisoner right will have on

the prison generally; and (4) whether there is an absence of

ready alternatives. Turner, 482 at 89-90. We consider each

factor of the analysis in turn.

1.

The first, and most important, prong of the Turner

analysis requires a rational connection between the prison

regulation in question and the legitimate governmental

interest which justifies it. According to Turner, a regulation

will be sustained unless, “the logical connection between

the regulation and the asserted goal is so remote as to

render the policy arbitrary or irrational.” Id. There is no

5. The Magistrate Judge applied Turner to both incoming and outgoing

mail. He appeared to reason that since Thornburgh declined to adopt a

different standard for incoming mail from prisoners as compared to

incoming mail from non-prisoners, correspondence between prisoners,

which is subject to Turner, should be treated no differently than mail

between a prisoner and a non-prisoner. See Appellant’s Appendix A 18-

19. The fallacy in this logic is that from an institutional perspective

prisoner to prisoner mail is all incoming mail. 

8
question that such a connection exists in this case with

respect to incoming mail. The Policy Statement is rationally

connected to a legitimate government interest: insuring the

internal and external safety of prisons. 

The regulation and the asserted goal in this case are very

similar to those at stake in Turner. As the Turner Court

noted, inmate to inmate mail between institutions “can be

used to communicate escape plans and to arrange assaults

and other violent acts.” Id. at 91. These concerns hardly

change when the sender of prisoner correspondence is a

former prisoner. Indeed, they may increase as the former

prisoner has greater access to people and items that could

lead to crimes outside or inside the prison. See O’Keefe v.

Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) (holding that

a prisoner could have an outside confederate send mail that

threatens prison security under the guise of a response to

a grievance). 

The concerns that the Policy Statement addresses are

undeniably legitimate, and the Statement is squarely aimed

at those concerns; thus, it passes the first element of the

Turner test.

2.

The second Turner factor considers whether there are

“alternative means of exercising the right that remain open

to prison inmates.” Turner, 482 U.S. at 89. The right at

stake here is communication with individuals outside the

prison, and we find that ample alternative means to

communicate remain open to prison inmates under the

Policy Statement. Once again, the factual similarities

between this case and Turner provide guidance:

Moreover, the correspondence regulation [between

inmates at different institutions] does not deprive

prisoners of all means of expression. Rather, it bars

communication only with a limited class of other

people with whom prison officials have particular cause

to be concerned — inmates at other institutions within

the Missouri prison system.

Id. at 92. 

9
Here, the challenged Policy Statement, as in Turner, does

not bar prisoners from all forms of correspondence. At

issue here is “communication with a limited class of other

people with whom prison officials” are concerned: former

prisoners. Id. Outside of this limited class, prisoners are

free to communicate with most any other individual. In

fact, the inmate censoring log shows that of 32 pieces of

mail Appellant sent out during the relevant 30 day period,

24 were forwarded to their intended recipient, evidencing

quite an ample opportunity to communicate with nonprisoners. Thus, The Policy Statement passes the second

element of the Turner test. 

3.

The third factor in the Turner analysis of incoming mail

is the impact of accommodating the asserted right on other

inmates and prison personnel. We find that communication

with former prisoners has a significant potential negative

impact on the rights of other inmates and prison personnel;

an impact sufficient to justify imposing limits on that

communication. 

As stated in Turner, where a right “can be exercised only

at the cost of significantly less liberty and safety for

everyone else . . . the choice made by corrections officials

. . . should not be lightly set aside by the courts.” Id. The

Court found that the correspondence between inmates at

separate prison institutions, “facilitates the development of

informal organizations that threaten the core functions of

prison administration, maintaining safety and internal

security . . . at the cost of significantly less liberty and

safety for everyone else, guards and prisoners alike.” Id.

As the regulation here concerns communications with

former prisoners, the concern of ‘informal organization

development’ may be less pronounced, but it is replaced

with new risks including escape, retaliation, introduction of

contraband, and other illegal activity. There are

considerable grounds to determine that allowing

unsupervised communication to former prisoners could

harm prisoners, guards, and the prison system generally.

Therefore, the Policy Statement passes the third Turner

element. 

10
4.

Finally, the fourth Turner element evaluates the

availability of ready alternatives to the regulation in

question. If there are clear alternatives available, the

regulation is less likely to be upheld. The only alternative

that Appellant Nasir proposes in this case, just as the

plaintiffs argued in Turner, is the complete monitoring of

inmate correspondence to prevent all dangerous

communication. The Turner response is equally appropriate

here: “Prison officials testified that it would be impossible to

read every piece of inmate-to-inmate correspondence, and

consequently there would be an appreciable risk of missing

dangerous messages.” Id. at 93. 

Further, the Turner Court recognizes the real possibility

that prisoners develop jargon or code to “prevent detection

of their real messages.” Id. We need only recall Holly

Golightly’s weekly visits to Sing-Sing to see mobster Sally

Tomato and her unwitting communication of his “weather

reports” to an outside confederate to note the ease with

which this can be accomplished.6

6. The relevant stretch of dialogue between Audrey Hepburn and George

Peppard from BREAKFAST AT TIFFANY’S (Paramount Pictures 1961) reads: 

Paul Varjak: “And what do you mean, weather report?” 

Holly Golightly: “Just a message I give Mr. O’Shaughnessy so he

knows I’ve really been up there. Sally tells me to say things like, uh

. . . oh, there’s a hurricane over in Cuba . . . or, cloudy over

Palermo, things like that.” 

[Break] 

Paul Varjak: “Now, darling, why don’t you start? Did you carry

messages from Sally Tomato in code?” 

Holly Golightly: “Of course not. I’d just give Mr. O’Shaughnessy the

weather report. Simply do not ask me what this is all about.” 

Paul Varjak: “Did you visit Tomato?” 

Holly Golightly: “Every week. What’s wrong with that?” 

Paul Varjak: “Tomato’s part of the narcotics syndicate.” 

Holly Golightly: “He never mentioned narcotics. These wretched

people keep persecuting him. He’s a deeply sensitive person, a

darling old man.” 

BREAKFAST AT TIFFANY’S (Paramount Pictures 1961). 

11
Because there would be an inherent risk of missing

dangerous communications, both through the use of

deceptive language and due to the volume of incoming mail

that prison staff would be required to read and review, we

do not feel that Appellant Nasir presents a reasonable

alternative to the Policy Statement. Therefore, we find that

the regulation passes the fourth element of the Turner test.7

With respect to incoming mail, the Policy Statement is

reasonably related to legitimate penological objectives.

Incoming communication to inmates by former prisoners

presents a serious set of dangers to prison safety and

prison administration, and the regulation logically

addresses those dangers by permitting correspondence only

with approval. Accordingly, we conclude that the regulation

does not unconstitutionally abridge Appellant Nasir’s First

Amendment rights.

C.

Having determined that the Policy Statement does not

violate the First Amendment with respect to incoming mail,

we must now determine whether the same holds true for

outgoing mail. The applicable test from Martinez has two

elements: (1) that the regulation must further an important

or substantial government interest unrelated to the

suppression of expression; and (2) that the regulation be no

greater than necessary for the protection of that interest.

Martinez, 416 U.S. at 413. We find that the Policy

Statement passes both elements of the Martinez test.

1.

The Policy Statement clearly furthers an important and

substantial government interest unrelated to the

suppression of expression. The Policy Statement is aimed at

maintaining the internal security of prisons and deterring

violent or otherwise dangerous behavior outside of prison.

7. Most prisons also forbid inmates from playing correspondence chess

with either inmates in other institutions or with outsiders. The symbols

used to convey the next move may conceal a code being used for

nefarious purposes. 

12
In Martinez, the Court gave some guidance as to what

criteria would satisfy the first element of its analysis.

“Prison officials must show that a regulation authorizing

censorship furthers one or more of the substantial

government interests of security, order and rehabilitation.”

Id. While as a general rule the Supreme Court considers

outgoing mail less risky than incoming correspondence,

Thornburgh recognizes that there may still be considerable

danger in outgoing letters: 

The implications [of outgoing correspondence] for

[prison] security are far more predictable. Dangerous

outgoing correspondence is more likely to fall within

readily identifiable categories: examples . . . include

escape plans, plans relating to ongoing criminal

activity, and threats of blackmail or extortion. 

490 U.S. at 413. Added to these risks are the possibility

that such mail could be used to facilitate the introduction

of contraband into the prison, or the conducting of a

business prohibited by prison regulations. The specific

threats to security identified by Thornburgh constitute an

important and substantial government interest. 

Outgoing inmate correspondence addressed to former

inmates rather alarmingly implicates the Thornburgh

concerns. Former inmates of an institution have an

intimate knowledge of its internal functions and residents.

The threat from correspondence on these issues — escape,

contraband, retaliation, violence, illegal business operation

— is intensely magnified when the communication is with

a former inmate. 

The criminal justice system recognizes the dangers of

communicating with former felons outside the prison

context as well. The Turner Court also noted: “Undoubtedly,

communication with other felons is a potential spur to

criminal behavior: this sort of contact is frequently

prohibited even after an inmate has been released on

parole.” Turner, 482 U.S. at 92. Clearly, if a parole officer

must grant permission to a parolee to communicate with a

former prisoner, a prison is entitled to the same supervision

over the same communications of a current prisoner. See,

e.g., USSG § 5D1.3 (c)(9) (stating that defendants on

13
supervised release shall not associate with convicted felons

without permission of probation officer); 28 CFR § 2.40

(a)(10) (conditioning federal parole on non-association with

known criminals, unless permission is granted by the

parole officer); 28 CFR § 2.204; 18 USC § 3583 (d); 18 USC

§ 3563 (b)(6). 

In Overton v. Bazzetta, 123 S. Ct. 2162 (2003), the

Supreme Court recently considered a variety of restrictions

on visitation imposed by the Michigan Department of

Corrections, one of which forbids an inmate from placing a

former prisoner on his list of approved visitors, unless that

inmate was also a part of the inmate’s immediate family.

Mich. Admin. Code Rule 791.6609(7). Id. at 2166. In

reversing the District Court and the Sixth Circuit Court of

Appeals, both of which found the regulation

unconstitutional, the Court quoted from Turner at 91-92:

“We have recognized that ‘communications with other

felons is a potential spur to criminal behavior.’ ” Id. at

2168. The risks inherent in visits between a prisoner and a

former inmate seem little different from the risks which flow

from written communications between a prisoner and a

former inmate. 

Outgoing inmate correspondence to former prisoners

deals with those institutional dangers specifically identified

in Thornburgh. Maintaining prison security in the face of

that correspondence is the goal of the Policy Statement,

and therefore, even under the Martinez standard, we find

that the Statement furthers an important and substantial

government interest.

2.

The second element of the Martinez analysis, that the

limitation of First Amendment freedoms be no greater than

necessary or essential to the protection of the particular

governmental interest involved, is also satisfied. 

We point out first that this is not a least-restrictive

means test. “We do not believe that Martinez should, or

need, be read as subjecting the decisions of prison officials

to a least-restrictive means test.” Thornburgh, 490 U.S. at

411. Much of the discussion, therefore, that proceeded in

14
the Turner analysis is relevant here. The Policy Statement is

not a ban on all inmate correspondence, nor does it even

represent a majority of such correspondence. The ban is

narrowly tailored, aimed only at correspondence with

former prisoners. Ample opportunity still exists for

prisoners to communicate with the outside. Appellant Nasir

himself only had 8 of 32 pieces of mail blocked during a 30-

day period. Further, the Policy Statement does not provide

a categorical ban on correspondence with former inmates.

Rather, the correspondence may be allowed, “with written

approval of the Superintendent.” Pennsylvania Department

of Corrections Policy Statement DC-ADM 803. And as the

Martinez Court noted, “some latitude in anticipating the

probable consequences of allowing certain speech in a

prison environment is essential to the proper discharge of

an administrator’s duty.” 

We believe that the Policy Statement falls squarely into

that category: a narrowly-tailored, specific regulation that

extends a proper amount of discretion to prison officials.

Such regulations are necessary if, “ ‘prison administrators

. . . and not the courts, [are] to make the difficult

judgments concerning institutional operations.’ ” Turner,

482 U.S. at 89, (quoting Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. at 128 (1977)). 

We find that Pennsylvania Department of Corrections

Policy Statement DC-ADM 803 is constitutional as to its

regulation of outgoing mail. The Policy Statement furthers

an important and substantial government interest

unrelated to the suppression of expression and the

limitation it imposes on First Amendment freedoms is no

greater than necessary or essential to the protection of the

particular governmental interest involved. 

III.

Finally, we turn briefly to Appellant Nasir’s Fourteenth

Amendment due process claim on behalf of Mr. Shutt.

Nasir argues that Shutt’s rights were violated when

Appellees failed to notify Shutt that their correspondence

was being blocked. 

15
We determine the appropriateness of third-party standing

with a three element test. See Pennsylvania Psychiatric

Society v. Green Spring Health Services, Inc., 280 F.3d 278,

288-89 (3d. Cir) (quoting Campbell v. Louisiana, 523 U.S.

392, 397, (1998)). To successfully assert third-party

standing: (1) the plaintiff must suffer injury; (2) the plaintiff

and the third party must have a ‘close relationship’; and (3)

the third party must face some obstacles that prevent it

from pursuing its own claims. 

We agree that Nasir has suffered an injury in this case as

his mail did not reach Mr. Shutt, and that the third party

faced a reasonable obstacle, as Mr. Shutt was never made

aware of the mail he was not receiving. However, Nasir

cannot satisfy the second element of the test — a ‘close’

relationship with Shutt. 

Nasir argues that he and Shutt had a ‘close’ relationship

because Shutt was the direct recipient of his mail. Nasir

also asserts that his romantic relationship validates the

‘close’ relationship. However, both grounds mischaracterize

the nature of the third-party standing connection. Though

courts have recognized a reasonable number of

relationships that give rise to third-party standing, mere

correspondence is not one of them. In Green Spring, the

court listed several relationships as close: doctor/patient,

lawyer/client or vendor/customer. Id. at 290. Mail

sender/mail recipient was not among those listed, nor

should it have been. 

A ‘close’ relationship for third-party standing must allow

the third-party plaintiff to operate “fully, or very nearly, as

effective a proponent,” of the potential plaintiff ’s rights as

would the plaintiff himself. Id. Such a situation arises, as

described above, in professional contexts, where the rights

of the potential plaintiff and third-party plaintiff neatly

align. Here we deal with a current inmate and a former

inmate — individuals unconnected by any professional tie,

and with very different sets of rights. Therefore, we do not

find that a relationship of correspondence, even romantic,

gives rise to third-party standing, and we deny Appellant

Nasir’s ability to raise a due process claim on behalf of

Shutt. 

16
IV.

In conclusion, we find Pennsylvania Department of

Corrections Policy Statement DC-ADM 803 constitutional.

The Policy Statement does not violate the First Amendment

with respect to incoming mail or outgoing mail, as it passes

the tests set out in Procunier v. Martinez and Turner v.

Safley. We also conclude that Appellant Nasir does not have

a sufficiently close relationship to Mr. Shutt to confer the

standing necessary for Nasir to bring a due process claim

on Shutt’s behalf. Courts have long held a policy of

deference to those with experience and expertise in the

realm of prison administration.8 We have no basis to upset

that notion here. We affirm the judgment of the district

court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

8. The issue in this case is the harm that current prisoner/former

prisoner correspondence can do to prison security — not an area, as

noted in Waterman v. Farmer, “fraught with . . . scientific uncertainties.”

183 F.3d 208, 217 (3d Cir. 1999) (considering a regulation banning the

introduction of sexually explicit materials into a prison). Prisoner mail is

an area that the courts have encountered before, in which the dangers

are clear and recognized. Thornburgh, 490 U.S. at 413. In fact, on

matters that rely so heavily on the expertise and experience of prison

officials, courts have counseled significant judicial restraint: “[w]here a

state penal system is involved federal courts have, as we indicated in

Martinez, additional reason to accord deference to the appropriate prison

authorities.” Turner, 482 U.S. at 84-85. Due to the lack of scientific

uncertainty and the frequency and clarity with which courts have in the

past found appreciable risk in felon to felon contacts, we hold that a

remand to the District Court is not required. Just recently, in Overton,

the Supreme Court described as “self-evident” the connection between

“maintaining prison security and preventing future crimes” and a

“regulation prohibiting visitation by former inmates.” Id. at 2168. 

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