Cesar Guajardo-Palma v. MARTINSON (first name unknown)

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1726
CESAR GUAJARDO-PALMA,
Plaintiff-Appellant,
v.
MARTINSON (first name unknown), et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 10-cv-112-slc—Barbara B. Crabb, Judge.
SUBMITTED JULY 22, 2010—DECIDED SEPTEMBER 20, 2010
Before EASTERBROOK, Chief Judge, and POSNER and
HAMILTON, Circuit Judges.
POSNER, Circuit Judge. This appeal from the dismissal
of a suit for failure to state a claim presents the recur-
rent issue of the constitutional rights of prison inmates
regarding “legal mail,” a technical term for mail relating
to legal proceedings. Fed R. App. P. 4(c); Fed. R. App. P.
25(a)(2)(C). Almost all civil proceedings by prisoners pit
the prisoner against employees of the prison, the prison

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2 No. 10-1726
itself, or a state or federal correctional authority. It is
natural for courts to be concerned about the defendants
or their agents reading the prisoner’s correspondence
with his lawyer, if he has one. It is like a litigant’s eaves-
dropping on conferences between his opponent and
the opponent’s lawyer. The plaintiff claims that his con-
stitutional rights were violated when prison guards,
outside his presence, opened legal mail addressed to him.
Suppose a letter arrives at the prison that is known to
be from a prisoner’s lawyer to the prisoner, and a prison
guard reads it and makes a copy for his superiors in
order to give them insight into their opponent’s litiga-
tion strategy. Gomez v. Vernon, 255 F.3d 1118, 1123-24,
1133 (9th Cir. 2001). This would give the defendants a
litigating advantage sufficient, the cases hold, to violate
the prisoner’s constitutional right to access to the courts
(on which see Christopher v. Harbury, 536 U.S. 403, 412-13
(2002); Lewis v. Casey, 518 U.S. 343, 350-51, 354 (1996),
and Bounds v. Smith, 430 U.S. 817, 828-29 (1977)). “The
Fourteenth Amendment guarantees meaningful access
to courts, [and] . . . the opportunity to communicate
privately with an attorney is an important part of that
meaningful access.” Dreher v. Sielaff, 636 F.2d 1141, 1143
(7th Cir. 1980); see also id. at 1143-46; Merriweather v.
Zamora, 569 F.3d 307, 315-17 (6th Cir. 2009); Al-Amin v.
Smith, 511 F.3d 1317, 1325-35 (11th Cir. 2008); Brewer v.
Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). Not that the
lawyer-client privilege is constitutional. Maness v.
Myers, 419 U.S. 449, 466 n. 15 (1975); Lange v. Young, 869
F.2d 1008, 1012 n. 2 (7th Cir. 1989); Smith v. Moore, 137
F.3d 808, 819-20 (4th Cir. 1998); Clutchette v. Rushen, 770

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No. 10-1726 3
F.2d 1469, 1471 (9th Cir. 1985). But bestowing it on one
side of a litigation and denying it to the other side can
place the denied side at a critical disadvantage.
And so with prison officials’ reading a prisoner’s mail
to his lawyer. Jones v. Caruso, 569 F.3d 258, 267-68 (6th
Cir. 2009); Bell-Bey v. Williams, 87 F.3d 832, 836-40 (6th
Cir. 1996); see also Thornburgh v. Abbott, 490 U.S. 401, 411-
12 and n. 10 (1989). The attorney-client privilege
is centrally concerned with confidences communicated
by the client to his lawyer in order to enable the lawyer
to formulate an effective litigation strategy.
A number of cases characterize the reading of mail to
or from a prisoner’s lawyer in a pending or impending
litigation as infringing the right of free speech rather
than or in addition to the right of access to the courts.
The theory is that reading communications between a
lawyer and his client “chills the individual’s ability to
engage in protected speech.” Denius v. Dunlap, 209 F.3d
944, 954 (7th Cir. 2000); see also, e.g., Jones v. Brown, 461
F.3d 353, 358-60 (3d Cir. 2006); Davis v. Goord, 320 F.3d
346, 351-52 (2d Cir. 2003); Brewer v. Wilkinson, supra,
3 F.3d at 821, 825-26. But since the purpose of confidential
communication with one’s lawyer is to win a case
rather than to enrich the marketplace of ideas, it seems
more straightforward to base the concern with destroying
that confidentiality on the right of access to the courts
(or, as we’re about to point out, on the due process
right to a fair hearing). The Supreme Court in Wolff v.
McDonnell, 418 U.S. 539, 576 (1974), left open whether
“inspection of incoming mail from an attorney placed an

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4 No. 10-1726
obstacle to access to the court,” but a number of cases
at our level have taken that step, as we’ve seen.
Not that a prisoner or anyone else has a constitutional
right to a lawyer in a civil case at public expense—even
a civil case, such as a habeas corpus proceeding, that
challenges a criminal judgment. “Although prisoners
enjoy a fundamental right of access to the courts, see
Lewis v. Casey, 518 U.S. 343 (1996), there is no right of
subsidized access.” Johnson v. Daley, 339 F.3d 582, 586 (7th
Cir. 2003) (emphasis in original). But if the prisoner
hires a lawyer—or a lawyer is willing to work for the
prisoner for free—the judge may not refuse to accept
filings from the lawyer. “If in any case, civil or criminal,
a state or federal court were arbitrarily to refuse to hear
a party by counsel, employed by and appearing for him,
it reasonably may not be doubted that such a refusal
would be a denial of a hearing, and, therefore, of due
process in the constitutional sense.” Powell v. Alabama,
287 U.S. 45, 69 (1932). Powell was a criminal case, but
the decision was based on the due process clause
rather than the Sixth Amendment (which had not yet
been held applicable to the states), and its logic embraces
civil litigation. As noted in Potashnick v. Port City Con-
struction Co., 609 F.2d 1101, 1118 (5th Cir. 1980), “histori-
cally and in practice, the right to a hearing has always
included the right to the aid of counsel when desired
and provided by the party asserting the right.”
Whereas cases like Lewis v. Casey involve claims on
prison resources (as in challenges to the adequacy of a
prison’s law library), Powell, and also Wolff v. McDonnell,

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No. 10-1726 5
supra; Johnson v. Avery, 393 U.S. 483, 484-87 (1969), and
Ex Parte Hull, 312 U.S. 546, 547-49 (1941), involve
active interference by the prison with a prisoner’s
unsubsidized efforts to enforce his legal rights, and
provide a sturdier ground for judicial intervention. If
the prisoner has counsel (or is communicating with a
lawyer in the hope the lawyer will agree to represent
him), the law’s allowing his opponents to eavesdrop on
his communications with the lawyer would undermine
the prisoner’s right to be represented, at a hearing,
by counsel at the prisoner’s expense. Cf. Potashnick v.
Port City Construction Co., supra, 609 F.2d at 1118-19.
The effects of denying or impairing the right could
be disastrous. Imagine a white-collar prisoner embroiled
in complex bankruptcy proceedings and barred from
communicating with his bankruptcy lawyer by an excep-
tionless rule forbidding prisoners to communicate with
lawyers in civil litigation.
Parenthetically we note that while most cases brought
by prisoners are civil—either prisoner civil rights cases
or postconviction challenges to criminal judgments—
many are criminal, since criminal defendants often
are in jail during their prosecution and also during
the appeal proceeding if they have been convicted.
Prison officials are likely to be more interested in pris-
oners’ suits against them than in suits relating to the pris-
oners’ criminal judgments. A practice of prison officials
reading mail between a prisoner and his lawyer in a
criminal case would raise serious issues under the
Sixth Amendment (and its application, by interpretation
of the Fourteenth Amendment, to state criminal defen-
dants), which guarantees a right to counsel in criminal

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6 No. 10-1726
cases. Altizer v. Deeds, 191 F.3d 540, 549 n. 14 (4th Cir. 1999);
United States v. Mastroianni, 749 F.2d 900, 905-08 (1st Cir.
1984); United States v. Novak, 531 F.3d 99, 100-04 (1st Cir.
2008); Clutchette v. Rushen, supra, 770 F.2d at 1471-72.
A different issue is presented by communications
from courts and agencies to prisoners (rather than from
prisoners’ lawyers), or vice versa, which the plaintiff in
this case, an inmate of a Wisconsin state prison, never-
theless contends are entitled to the same confidentiality
as mail from a prisoner’s lawyers. Most such communica-
tions are public documents, Antonelli v. Sheahan, 81 F.3d
1422, 1431-32 (7th Cir. 1996); Martin v. Brewer, 830 F.2d 76,
78 (7th Cir. 1987); Keenan v. Hall, 83 F.3d 1083, 1094 (9th
Cir. 1996), which the prison officials have as much right
to read as the prisoner; some that are nonpublic are also
routine and nonsensitive. But some are sensitive. Sallier v.
Brooks, 343 F.3d 868, 876-77 (6th Cir. 2003). Suppose the
prisoner were asking that materials that he had submitted
ex parte be held in camera or withheld from his adversary.
No legal mail is sacrosanct, however. Prison officials
cannot be certain, just from the return address on an
envelope, that a letter is from a lawyer (or indeed from
a court or agency) rather than from a criminal confederate
of the prisoner masquerading as a lawyer, as in Fontroy
v. Beard, 559 F.3d 173, 175 (3d Cir. 2009), and State v.
Steffes, 659 N.W.2d 445, 448-49 (Wis. App. 2003). Occasion-
ally the lawyer is a criminal confederate of the client, as
in United States v. Stewart, 590 F.3d 93, 102-08 (2d Cir. 2009);
United States v. Merlino, 349 F.3d 144, 149-52 (3d Cir. 2003);
United States v. Cano, 289 F.3d 1354, 1359-60 (11th Cir.

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No. 10-1726 7
2002); United States v. Abbell, 271 F.3d 1286, 1292-94 (11th
Cir. 2001) (per curiam), and United States v. Ross, 190 F.3d
446, 448-49 (6th Cir. 1999). An accommodation is needed
between the prisoner’s interest in the confidentiality of
communications with his lawyer (and of some communi-
cations with the court or agency in which his case
is pending, whether or not he is represented by a lawyer)
and the prison’s interest in security. We call this a need
for an “accommodation” rather than for “a balancing
of competing interests” because ordinarily and in the
present instance competing interests of the sort con-
sidered by courts in formulating rules of law can’t be
weighed; they are imponderables. The realistic goal is a
via media in which each interest is given as much effect
as possible.
So on the one hand (and postponing consideration of
court and other non-attorney legal mail), prison em-
ployees, who routinely and for obvious reasons of
security open prisoners’ incoming mail, should be per-
mitted to open incoming mail from a prisoner’s lawyer
to verify that it is indeed a communication, related to
current or prospective representation, from a lawyer
who is authorized to practice law in the relevant juris-
diction and is in fact the prisoner’s lawyer; on the other
hand the prisoner should be allowed to be present when
the letter is opened. Al-Amin v. Smith, supra, 511 F.3d at
1325-26; Jones v. Brown, supra, 461 F.3d at 359; Davis v.
Goord, supra, 320 F.3d at 351; Sallier v. Brooks, supra, 343
F.3d at 874; Powells v. Minnehaha County Sheriff Dep’t, 198
F.3d 711, 712 (8th Cir. 1999) (per curiam). The approach
was sketched by the Supreme Court in Wolff v. McDonnell,

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8 No. 10-1726
supra, 418 U.S. at 576-77: “If prison officials had to check
in each case whether a communication was from an
attorney before opening it for inspection, a near impos-
sible task of administration would be imposed. We think
it entirely appropriate that the State require any such
communications to be specially marked as originating
from an attorney, with his name and address being
given, if they are to receive special treatment. It would
also certainly be permissible that prison authorities
require that a lawyer desiring to correspond with a pris-
oner, first identify himself and his client to the prison
officials, to assure that the letters marked privileged are
actually from members of the bar. As to the ability to
open the mail in the presence of inmates, this could in
no way constitute censorship, since the mail would not
be read. Neither could it chill such communications,
since the inmate’s presence insures that prison officials
will not read the mail. The possibility that contraband
will be enclosed in letters, even those from apparent
attorneys, surely warrants prison officials’ opening the
letters” (emphasis in original).
Protection of the privacy of attorney mail in this fashion
is imperfect; the prison employee who opens the letter
will have to glance at the content to verify its bona fides.
But the imperfection is necessary to protect the prison’s
interest in security—and is lessened by allowing pris-
oners to engage in unmonitored phone conversations
with their lawyers. Wisconsin allows this, Wis. Admin.
Code § DOC 309.39(6)(a), as do federal regulations in
the case of federal prisoners. See 28 C.F.R. § 540.102; see
also United States v. Novak, supra, 531 F.3d at 100-04.

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No. 10-1726 9
The approach sketched in Wolff to lawyer-prisoner mail
may not be ideal, but it is the best that has been sug-
gested, and that’s good enough.
The case law, which in this and other respects is
unclear about the nature and scope of the prisoner’s right
to be present when mail from his lawyer is opened,
compare Al-Amin v. Smith, supra, 511 F.3d at 1333, with
Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir.
2005), and Gardner v. Howard, 109 F.3d 427, 430-31 (8th
Cir. 1997), has yet to converge on whether the unjustified
opening of such mail is a violation of the right of access
to the courts or merely, as intimated in Kaufman and held
in Gardner, a potential violation. Lewis v. Casey, supra, in
the related context of challenges to the adequacy of a
prison’s library or legal assistance program, requires a
“demonstrat[ion] that the alleged shortcomings in the
library or legal assistance program hindered [the pris-
oner’s] efforts to pursue a legal claim.” 518 U.S. at 351; see
also Stanley v. Vining, 602 F.3d 767, 770-71 (6th Cir. 2010).
We think there must likewise by a showing of hindrance
in a claim of interference with a prisoner’s communica-
tions with his lawyer.
But proof of a practice of reading a prisoner’s correspon-
dence with his lawyer should ordinarily be sufficient
to demonstrate hindrance. Al-Amin v. Smith, supra, 511
F.3d at 1334; Jones v. Brown, supra, 461 F.3d at 359; Davis
v. Goord, supra, 320 F.3d at 351-52. The reason is that
knowledge, inferred from a policy or practice, by a pris-
oner’s lawyer that prison officials are likely to read his
communications with his client (because they refuse to

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10 No. 10-1726
let him be present when they open the lawyer’s letter to
see whether it contains contraband or other illicit mate-
rial) will to a high probability reduce the candor of
those communications.
An isolated interference with the confidentiality of
such communications is different; its effect on prisoners’
access to justice is likely to be nil. Most attorney-client
communications consist of the client’s describing what
happened to him and the lawyer’s explaining what
legal theories might fit the client’s factual narrative.
Much of this material will find its way into the
pleadings and briefs and thus be shared with the op-
ponent. And under the Prison Litigation Reform Act
much such information will be shared with prison
officials well in advance of litigation, as part of the re-
quired process of exhausting internal prison remedies.
42 U.S.C. § 1997e(a); 28 C.F.R. § 40.1(d); Lewis v. Washing-
ton, 300 F.3d 829, 833-34 (7th Cir. 2002).
In light of these realities, the Supreme Court made
clear in Weatherford v. Bursey, 429 U.S. 545, 554-59 (1977),
that the interception of a criminal defendant’s con-
fidential communications with his lawyer is subject to
harmless-error analysis; and this must be true, and is, in
prisoners’ civil litigation as well. E.g., Davis v. Goord, supra,
320 F.3d at 351; Smith v. Maschner, 899 F.2d 940, 944
(10th Cir. 1990). Indeed, not only the Prison Litigation
Reform Act, but also the far greater rights of pretrial
discovery in civil than in criminal litigation, make it
unlikely that isolated interferences with attorney-
client communications in prisoner cases will block the
prisoner’s access to meaningful justice.

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No. 10-1726 11
If there is a violation and it is not harmless, what
should be the remedy? Proof of damages (other than
nominal damages) often will be impossible. See Altizer v.
Deeds, supra, 191 F.3d at 543; but see Sallier v. Brooks,
supra, 343 F.3d at 880. But injunctive relief may be a
viable alternative, especially if the prison has a practice
of opening attorney mail outside the client’s presence.
See Jones v. Brown, supra, 461 F.3d at 361.
Turning at last to the particulars of this case, we note
that all nine letters to the plaintiff that were opened
without his being present were from courts or agencies
rather than from his lawyer. (None was outgoing mail.)
One letter was from the district court and the others
were from the Office of Immigration Review in the De-
partment of Justice (two letters), Immigration and
Customs Enforcement in the Department of Homeland
Security (two letters), and the Wisconsin Department of
Corrections (four letters). The court order, which granted
the plaintiff’s request for leave to proceed on appeal
in forma pauperis, is a public document. The remaining
letters, though nonpublic, are not the kind of documents
whose perusal by prison officials would give them
an edge in litigation. The plaintiff points to the sheer
number of legal letters to him that were opened out of
his presence as evidence of a practice of opening legal
mail. But as long as the prison confines itself to opening
letters that either are public or if private still are not of a
nature that would give the reader insights into the pris-
oner’s legal strategy, the practice is harmless and may be
justified by the volume of such mail that a litigious pris-
oner can generate. The plaintiff does not claim to have

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12 No. 10-1726
been intimidated by the practice; and as in Kaufman v.
McCaughtry, supra, 419 F.3d at 686, he has “offered no
evidence that his ability to litigate any matter was
affected by the defendants’ actions.”
It’s true that Wisconsin law provides that mail from
certain officials and organizations, both state and federal,
may be opened only in the inmate’s presence. Wis. Admin.
Code § DOC 309.04(3). That law may have been violated
in this case (an issue on which we express no view). But
a violation of state law is not a ground for a federal
civil rights suit.
AFFIRMED.
9-20-10

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