Prisoners have a legal right to receive mail, but the law views that right as being balanced against prisons’ needs for security. When prisons unreasonably deprive prisoners of mail, it can lead to causes of action under both the First and the Fourteenth Amendment.
The First Amendment-type argument is a tough nut to crack from the plaintiffs’ point of view: the question courts ask, when evaluating arguments that prison regulation of mail impinges on First Amendment rights, is merely whether the regulation is “reasonably related to legitimate penological interests” — which is a normally going to be a tough standard to overcome. Turner v. Safley, 482 U.S. 78, 89 (1987). Moreover, even if mail is improperly handled, isolated incidents of tampering will normally not be enough to state a claim. See Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999) (temporary delay or isolated incident of delay of mail does not violate a prisoner's First Amendment rights); see also Davis v. Goord, 320 F.3d 346, 351 (2d. Cir. 2003) (isolated incident of mail tampering usually insufficient to state claim).
The Fourteenth Amendment also creates a layer of procedural protections around mail: "Specifically, an inmate 'has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities.'" Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (quoting Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999)). But "[o]nly if the failure to provide notice was pursuant to prison policy does this constitute a due process violation actionable under § 1983." Id.
Censorship of prison mail is typically evaluated under the First Amendment framework noted above. Thornburgh v. Abott, 490 U.S. 401 (1989).
Prisoners do not have an expectation of privacy in their mail, so the mere fact that prison officials open the mail does not, in itself, raise any sort of Fourth Amendment concerns, as it might in the free world. People v. Manson, 61 Cal.App.3d 102, 152 (1976), cert. den. 430 U.S. 986 [52 L.Ed.2d 382, 97 S.Ct. 1686].)
Legal Mail may be opened and inspected in the presence of the inmate. See Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981). However, opening legal mail outside of the inmate’s presence can be the basis for liability, even if it only happens “two or three” times. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017).
The handling of legal mail also potentially impacts prisoners’ right to access the courts, since inmates’ abilities to respond to legal proceedings often depends on being able to communicate through the mail.
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