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Tenth Circuit Court of Appeals Reverses Colorado District Court on Mail Issue; Jail Publication Ban Unconstitutional

The Tenth Circuit Court of Appeals has held that a prisoner made sufficient allegations to state a claim for infringement on a prisoner’s right to receive newspapers and magazines.

Appellant Russell Berger, a pretrial detainee at Arapahoe County Detention Facility, filed in 2001 a §1983 claim against jail officials before the U.S. District Court, District of Colorado, alleging violation of his First, Sixth, and Fourteenth Amendment rights by (1) restricting his county provided outgoing legal mail postage, (2) opening his incoming legal mail on one occasion, (3) opening other correspondence with legal oriented institutions, (4) returning a catalog to sender, and (5) denying subscriptions to Rocky Mountain News and Newsweek magazine. The district court dismissed the action as insufficient as a matter of law. Berger appealed.

Before the Tenth Circuit Court of Appeals, the action was held affirmed as to points (1-4) and reversed and remanded on point (5). The court held that a balance was necessary between free access to legal postage and budget considerations, isolated instances of opening legal mail absent improper motive did not support a civil rights claim, and that non-delivery of catalogs lacks constitutional weight.

As to point (5), the court of appeals considered the amended complaint which attempted to personally tie two named defendants to the county jail’s denial of Berger’s newspaper and magazine subscriptions, and found it insufficient to establish culpability. The court, however, in considering defendant’s motion to dismiss de novo found this point alone of the five sufficient to survive scrutiny under Fed. R. Civ. P. 12 (b)(6). The three-prong Thornburgh test was applied to ascertain if there existed a reasonable balance between a prisoner’s constitutionally protected interests and an institution’s mandate to regulate accumulated literature, i.e. (1) whether the institution’s motives are rational, neutral, and legitimate, (2) whether there are alternative means to exercising a right, and (3) the impact the inmate’s exercising of this right has on staff and population.

The court, liberally construing Berger’s pro se filing under color of Rule 12 (b)(6) could not conclude that he failed to allege sufficient facts to state a First Amendment claim. A point of factual dispute arose over Berger’s access to newspapers and news magazines, and the court directed the lower court to, on remand, determine the significance of the dispute under the Thornburgh test.

This order and judgment was declared non-binding except in the instant case, res judicata, and collateral estoppel. It may be cited under terms and conditions of 10th Cir. R. 36.3.

Affirmed in part, reversed in part, remanded for further proceedings consistent with this order and judgment. See: Berger v. White, 12 Fed. Appx. 768, 2011 WL 433383 (C.A.10 (Colo.)) Case No. 00-1413.

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Related legal case

Berger v. White