Blaine Sallier v. DEBORAH BROOKS and CHRISTINE RAMSEY

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0332P (6th Cir.)
File Name: 03a0332p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BLAINE SALLIER,
Plaintiff-Appellee,
v.
DEBORAH BROOKS and
CHRISTINE RAMSEY,
Defendants-Appellants.
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No. 01-1269
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 96-70458—Arthur J. Tarnow, District Judge.
Argued: September 17, 2002
Decided and Filed: September 18, 2003
Before: SILER, DAUGHTREY, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kevin R. Himebaugh, OFFICE OF THE
ATTORNEY GENERAL, CORRECTIONS DIVISION,
Lansing, Michigan, for Appellants. Daniel E. Manville,
Ferndale, Michigan, for Appellee. ON BRIEF: Patrick J.
2 Sallier v. Brooks, et al. No. 01-1269
Wright, OFFICE OF THE ATTORNEY GENERAL,
CORRECTIONS DIVISION, Lansing, Michigan, for
Appellants. Daniel E. Manville, Ferndale, Michigan, for
Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
plaintiff, Blaine Sallier, filed this action as a Michigan state
prisoner, pursuant to 42 U.S.C. § 1983, charging that the
defendants, two prison mailroom clerks, had violated his civil
rights by unlawfully “opening, censoring, and interfer[ing
with his] legal mail” and seeking declaratory, monetary, and
injunctive relief. The district court declined to rule on the
defendants’ claim of qualified immunity before trial and
instead instructed the jury to determine whether certain
correspondence was in fact legal mail and whether that
correspondence had been improperly opened outside of
Sallier’s presence. The jury returned a verdict in the
plaintiff’s favor on 13 of the claims, assessing damages at
$13,000.
The defendants now appeal the district court’s ruling on
qualified immunity, as well as the district court’s failure to
grant a new trial based on a number of evidentiary decisions
and what they contend were erroneous jury instructions. We
conclude that the question of what constitutes “legal mail” is
a question of law and, therefore, that the district court erred in
submitting the issue to the jury. For the reasons set out
below, we further conclude that the correspondence in 11 of
the 20 claims did not implicate constitutionally-protected
legal mail rights, that the defendants were entitled to qualified
immunity on six of the remaining nine claims, and that the
defendants were not entitled to qualified immunity on the
final three claims. We reverse the judgment below as to the
claims that either did not involve legal mail rights or for

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No. 01-1269 Sallier v. Brooks, et al. 3
which there was qualified immunity, and we affirm the
judgment below as to the three claims involving protected
legal mail rights for which there was no qualified immunity.
We also reduce the damages awarded by the jury accordingly.
Finally, we find no merit in the defendants’ remaining
evidentiary claims and affirm the district court’s rulings on
those issues.
FACTUAL AND PROCEDURAL BACKGROUND
In this pro se § 1983 action, the plaintiff claims that two
prison mailroom clerks, Deborah Brooks and Christine
Ramsey, violated his federal constitutional rights by opening
his “legal mail” outside his presence, after he had filed a
written request to have such mail opened only in his presence.
The written request was dated May 4, 1994, and was entered
into the mailroom records on May 5, 1994. The 20 items of
mail at issue were sent from various sources over a two-year
period as follows:
A. State Court Administrator – March 30, 1994
B. Court of Appeals – April 1, 1994
C. Judicial Tenure Commission – April 15, 1994
D. Attorney Grievance Commission – April 29, 1994
E. Michigan Appellate Assigned Counsel System –
May 5, 1994
F. American Bar Association – May 10, 1995
G. Macomb County Clerk – May 19, 1995
H. Macomb County Clerk – June 27, 1995
I. State Appellate Defender Office – July 26, 1995
J. Macomb County Clerk – August 16, 1995
4 Sallier v. Brooks, et al. No. 01-1269
K. State Appellate Defender Office – August 29, 1995
L. Teola P. Hunter, Wayne County Clerk –
September 9, 1995
M. Law Office of Kitch, Drutchas, Wagner & Keeney
– November 7, 1995
N. Lynn Allen, Oakland County Clerk – December 20,
1995
O. United States District Court – December 22, 1995
P. Michigan Court of Appeals – December 22, 1995
Q. United States District Court – December 23, 1995
R. United States District Court – December 27, 1995
S. Sixth Judicial Circuit – January 22, 1996
T. United States District Court – February 5, 1996
Sallier did not allege that any of the mail was actually read by
prison employees, only that it was delivered to him already
opened.
The defendants filed a motion to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative, for summary judgment. They argued that Sallier
had failed to establish a constitutional violation and that, even
if he had, they were protected from suit by qualified
immunity. The district court denied the defendants’ motion
and appointed counsel for Sallier. After Sallier’s appointed
counsel amended the complaint, the defendants again moved
for dismissal pursuant to Rule 12(b)(6) based on qualified
immunity. The court denied the motion, finding that
the jury must make . . . factual determinations before the
Court has sufficient information to decide the qualified

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No. 01-1269 Sallier v. Brooks, et al. 5
immunity issue. The jury must, for example, decide
whether each of the pieces of correspondence referenced
in the Complaint constituted “legal mail,” and whether
any letters determined to be “legal mail” were opened
outside of Mr. Sallier’s presence. The jury’s findings of
fact are thus key to the Court’s determination of qualified
immunity, as the court must then decide, as a matter of
law, whether the defendants would have reasonably
understood that opening the specific pieces of mail
referenced in the complaint violated Mr. Sallier’s rights.
The jury must make credibility determinations and must
determine what legal mail, if any, was opened outside of
Mr. Sallier’s presence after the defendants knew, or
should have known, that such actions were prohibited.
Before and during the trial, the district court also issued a
series of in limine rulings, including one that granted the
plaintiff’s motion to preclude admission of his prior
convictions and another that denied the defendants’ motion to
require introduction into evidence of the original envelopes in
which the letters in question were received. The court
allowed Sallier to introduce as exhibits photocopies of some
of the allegedly opened envelopes that included his
handwritten notes.
The jury returned a verdict in the plaintiff’s favor on 13 of
the 20 claims, awarding compensatory damages of $750 and
punitive damages of $250 for each claim, totaling $13,000 in
damages. After the jury verdict, the defendants moved for a
new trial based on alleged evidentiary errors or, in the
alternative, for remittitur or judgment as a matter of law. The
district court denied the motion. The defendants appeal the
district court’s denial of their motion for a new trial or
remittitur and its failure to grant them qualified immunity on
all claims.
6 Sallier v. Brooks, et al. No. 01-1269
ANALYSIS
I. “Legal Mail”: a Question of Law
As a threshhold matter, we note that the district court erred
in reserving a ruling on the defendants’ qualified immunity
defense until the jury made a factual determination as to
whether each piece of correspondence constituted protected
mail. The determination of whether particular kinds of
correspondence qualify for the constitutional protection
accorded a prisoner’s “legal mail” is a question of law
properly decided by the court, not one of fact that can be
submitted to a jury. See Seal v. Morgan, 229 F.3d 567, 580
(6th Cir. 2000)(stating that courts determine questions of law,
juries determine questions of fact). Had the court found
certain correspondence to be constitutionally protected legal
mail, it should then have granted qualified immunity on any
claims involving those items of correspondence that the
defendants could have opened without violating constitutional
rights that were clearly established at the time and of which
a reasonable person would have known. See Christophel v.
Kukulinsky, 61 F.3d 479, 484 (6th Cir. 1995). After
dismissing the claims for all correspondence that was either
not legal mail or for which the defendants had qualified
immunity, the court should have submitted the remaining
claims to the jury for a verdict on the factual dispute of
whether such correspondence was actually opened outside of
Sallier’s presence.
II. Constitutionally-Protected “Legal Mail”
A prisoner’s right to receive mail is protected by the First
Amendment, but prison officials may impose restrictions that
are reasonably related to security or other legitimate
penological objectives. See Knop v. Johnson, 977 F.2d 996,
1012 (6th Cir. 1992). As we have noted, “prison officials
may open prisoners’ incoming mail pursuant to a uniform and
evenly applied policy with an eye to maintaining prison
security.” Lavado v. Keohane, 992 F.2d 601, 607 (6th Cir.

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No. 01-1269 Sallier v. Brooks, et al. 7
1993). However, prison officials who open and read
incoming mail in an arbitrary and capricious fashion violate
a prisoner’s First Amendment rights. See Parrish v. Johnson,
800 F.2d 600, 604 (6th Cir. 1986).
Moreover, when the incoming mail is “legal mail,” we have
heightened concern with allowing prison officials unfettered
discretion to open and read an inmate’s mail because a
prison’s security needs do not automatically trump a
prisoner’s First Amendment right to receive mail, especially
correspondence that impacts upon or has import for the
prisoner’s legal rights, the attorney-client privilege, or the
right of access to the courts. See Kensu v. Haigh, 87 F.3d
172, 174 (6th Cir. 1996) (“The right of a prisoner to receive
materials of a legal nature, which have impact upon or import
with respect to that prisoner’s legal rights and/or matters, is a
basic right recognized and afforded protection by the
courts. . . .”); see also Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2003) (“In balancing the competing interests implicated
in restrictions on prison mail, courts have consistently
afforded greater protection to legal mail than to non-legal
mail. . . .”).
In an attempt to accommodate both the prison’s needs and
the prisoner’s rights, courts have approved prison policies that
allow prison officials to open “legal mail” and inspect it for
contraband in the presence of the prisoner. See, e.g., Wolff v.
McDonnell, 418 U.S. 539, 577 (1974) (upholding such a
policy against a Sixth Amendment attorney-client privilege
claim and a Fourteenth Amendment due process claim based
on access to the courts). In Knop, we addressed an opt-in
system in which prison officials could open any mail sent to
a prisoner unless the prisoner affirmatively requested that
“privileged mail,” defined by the policy as mail sent by a
court or by counsel, be opened in his presence. 977 F.2d at
1012. We found that the opt-in system was constitutionally
sound as long as prisoners received written notice of the
policy, did not have to renew the request upon transfer to
8 Sallier v. Brooks, et al. No. 01-1269
another facility, and were not required to designate particular
attorneys as their counsel. Id.
Not all mail that a prisoner receives from a legal source will
implicate constitutionally protected legal mail rights. Indeed,
even mail from a legal source may have little or nothing to do
with protecting a prisoner’s access to the courts and other
governmental entities to redress grievances or with protecting
an inmate’s relationship with an attorney. When it does,
however, we must balance the interest of prison security
against the possibility of tampering that could unjustifiably
chill the prisoner’s right of access to the courts or impair the
right to be represented by counsel. We also note in response
to prison officials’ security concerns that even
constitutionally protected mail can be opened (although not
read) and inspected for contraband. The only requirement is
that such activity must take place in the presence of the
recipient, if such a request has been made by the prisoner.
A. Claims A, B, C, D, and E: Items Allegedly Opened
Before Plaintiff Filed the Written Request
On May 4, 1994, Sallier submitted a form to the mailroom
supervisor indicating that it was “a written request to be
present when my legal mail is opened.” The request was
received by defendant Redmond on May 5, 1994. This
written request was submitted in compliance with Michigan
Administrative Code Rule 791.6605(4) and Michigan
Department of Corrections policy directive PD 05.03.118 ¶K,
both of which state that upon a prisoner’s written request,
mail that is clearly identified as being from the prisoner’s
designated attorney, the legislative corrections ombudsman,
or a state or federal court “shall be opened and inspected for
contraband in the prisoner’s presence.”
Sallier received all of the letters that he alleged were
opened outside his presence in Claims A, B, C, D, and E on
or before the date that his written request was accepted in the
prison mailroom. Because this court and others have upheld

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No. 01-1269 Sallier v. Brooks, et al. 9
opt-in systems that require an affirmative request to be
present when legal mail is opened, Sallier had no
constitutionally protected right to be present for the opening
of any mail before the mailroom had received his request.
Therefore, we need not reach the issue of whether the mail in
Claims A, B, C, D, and E constituted “legal mail.” As a
matter of law, the defendants cannot be liable for having
opened mail, even if it is “legal mail,” prior to the time that
Sallier made his written request to have such mail opened in
his presence. As a result, Claims A, B, C, D, and E should
not have been submitted to the jury and, accordingly, the jury
verdict on these five claims must be set aside.
B. Claim F: Correspondence from the American Bar
Association
Sallier alleged that on May 10, 1995, he received
correspondence from the American Bar Association that was
opened by the defendants outside his presence. Nothing on
the envelope indicated that it contained confidential, personal,
or privileged material, that it was sent from a specific attorney
at the ABA, or that it related to a currently pending legal
matter in which Sallier was involved. The ABA is a
professional organization designed to support attorneys in a
variety of ways; it is not an organization that has the authority
to take action on behalf of an inmate. Compare Jensen v.
Klecker, 648 F.2d 1179, 1183 (8th Cir. 1981) (finding that a
letter from the National Prison Project, bearing the name of an
attorney and stamped “Lawyer Client Mail Do Not Open
Except In Presence of Prisoner” appears to come well within
the definition of protected attorney-client legal mail). Given
that the ABA is not a direct-services legal organization and
generally does not provide legal advice and that the envelope
contained no marking to alert a prison employee that it was to
be opened only in the presence of the prisoner, receipt of this
correspondence did not implicate constitutionally protected
legal mail rights. Cf. Boswell v. Mayer, 169 F.3d 384, 388-89
(6th Cir. 1999) (upholding prison policy of treating mail from
a state attorney general’s office as protected legal mail only
10 Sallier v. Brooks, et al. No. 01-1269
if (a) the envelope contains the return address of a licensed
attorney and (b) the envelope has markings that warn of its
privileged content); Wolff, 418 U.S. at 576 (finding it entirely
appropriate for a state to require any communication from an
attorney to be specially marked as originating from an
attorney, including the attorney’s name and address, if the
communication is to be given special treatment).
In general, when there is no specific indication to the
contrary, an envelope from an organization such as the ABA
may be opened pursuant to the regular mail policy without
violating the First Amendment rights of a prisoner. As a
matter of law, therefore, the defendants cannot be liable under
Claim F, which should not have been submitted to the jury.
Accordingly, the jury verdict on this claim must be set aside.
C. Claims G, H, J, L, and N: Correspondence From
County Clerks
Sallier alleged that on May 19, 1995, June 27, 1995,
August 15, 1995, September 6, 1995, and December 20,
1995, he received mail from various county clerks that was
opened outside of his presence. The senders on these
envelopes are: (1) Carmella Sabaugh, Macomb County Clerk
and Register of Deeds; (2) Teola P. Hunter, Wayne County
Clerk; and (3) Lynn D. Allen, Oakland County Clerk -
Register of Deeds, County Clerk’s Office. Nothing on any of
the envelopes indicated that the envelope contained
confidential, personal, or privileged material, that it was sent
from an attorney, that it related to a currently pending legal
matter in which Sallier was involved, or that it was to be
opened only in the presence of the prisoner. In general, a
county clerk or register of deeds is not someone who can
provide legal advice about a prisoner’s rights or direct legal
services and is not someone with authority to take action on
behalf of a prisoner. Mail from a county clerk simply does
not implicate a prisoner’s right of access to the courts, of
petitioning the government to redress grievances, or of
competent representation by counsel. The administrative

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No. 01-1269 Sallier v. Brooks, et al. 11
matters about which one generally communicates with a
county clerk or register of deeds, i.e., birth, marriage, or death
certificates, tax and real estate services, automobile title and
registration, etc., are not the types of legal matters that raise
heightened concern or constitutional protection.
We find that as a general matter and as applied to Claims
G, H, J, L, and N in this case, mail from a county clerk or
register of deeds does not implicate constitutionally protected
legal mail rights. Given the nature of a county clerk’s office
and given that there was no specific indication to the contrary
marked on the envelope, the correspondence from the county
clerks and registers of deeds in this case could be opened
pursuant to the regular mail policy without violating Sallier’s
First Amendment rights.
As a matter of law, therefore, the defendants cannot be
liable under Claims G, H, J, L, and N. These claims should
not have been submitted to the jury and, accordingly, the jury
verdict on these claims must be set aside.
D. Claims O through T: Correspondence from State
and Federal Courts
In these claims, Sallier alleged that on various dates
between December 22, 1995, and February 5, 1996, he
received mail from state and federal courts that was opened
outside of his presence. The status of such mail presents the
most difficult question in this appeal, because it will
frequently, but not necessarily, involve a currently pending
legal matter affecting the prisoner’s rights. See Bell-Bey v.
Williams, 87 F.3d 832, 837-38 (6th Cir. 1996); see also
Taylor v. Sterrett, 532 F.2d 462, 475 (5th Cir. 1976) (holding
that an inmate’s right of access to the courts requires that
incoming prisoner mail from courts, attorneys, prosecuting
attorneys, and probation or parole officers be opened only in
the presence of the inmate).
12 Sallier v. Brooks, et al. No. 01-1269
We recognize that the Seventh Circuit has stated in dicta
that mail from court personnel can be treated as general
correspondence unless it is designated according to prison
policy as “Special Mail - Open only in the presence of the
inmate,” because mail from court personnel is generally a
matter of public record. See Martin v. Brewer, 830 F.2d 76,
78-79 (7th Cir. 1987); Castillo v. Cook County Mail Room
Dept., 990 F.2d 304, 306-07 (7th Cir. 1993) (calling the
Martin decision non-binding as dicta on this point, and
reversing a district court’s dismissal of a prisoner complaint
alleging two letters from a federal district court and one from
the United States Department of Justice were opened outside
his presence); but see Keenan v. Hall, 83 F.3d 1083, 1094
(9th Cir. 1996)(citing Martin for the proposition that “mail
from the courts, as contrasted to mail from a prisoner’s
lawyer, is not legal mail”). However, prior decisions from
our court have used the term “legal mail” to include mail from
the courts and have expressed disagreement with Martin’s
rationale that mail from a court is automatically a matter of
public record. See Bell-Bey, 87 F.3d 832 (referring
throughout the opinion to mail from a prisoner to his
designated attorney as well as to any state or federal court as
legal mail); Boswell, 169 F.3d at 389-90 (“Unlike mail from
the ACLU, courts, defense attorneys, and so forth, mail from
Prosecuting Attorneys and the Attorney General will almost
always consist of documents in the public record.”).
Indeed, we can imagine a situation in which a court
corresponds with a prisoner before filing the prisoner’s
complaint because some administrative requirement, such as
submitting an in forma pauperis affidavit, paying the filing
fee, or signing the complaint, has not been met. In that
situation, the complaint is not yet a public record, and prison
officials have no legitimate penological interest in reading the
correspondence before it is. See Turner v. Safely, 482 U.S. 78
(1987) (prison officials must articulate some legitimate reason
for interfering with prisoners’ communications). In order to
guard against the possibility of a chilling effect on a
prisoner’s exercise of his or her First Amendment rights and

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No. 01-1269 Sallier v. Brooks, et al. 13
to protect the right of access to the courts, we hold that mail
from a court constitutes “legal mail” and cannot be opened
outside the presence of a prisoner who has specifically
requested otherwise.
E. Claims I, K, and M: Correspondence from
Attorneys
As to these three claims,Sallier alleged that on July 26,
1995, August 29, 1995, and November 7, 1995, he received
mail from an attorney that was opened outside of his
presence. Such correspondence is, of course, the very essence
of “legal mail.” See Kensu, 87 F.3d at 174; Knop, 977 F.2d
at 1012. Moreover, in Knop, we held that a prisoner may not
be required to designate ahead of time the name of the
attorney who will be sending the prisoner confidential legal
mail. Id. In fact, we even implied in Muhammad v. Pitcher,
35 F.3d 1081 (1994), that a prison policy allowing inmates to
be present when mail from their attorneys was opened was
constitutionally required, and we held that mail from the
Attorney General’s office required similar protection because
of the potentially confidential nature of such correspondence.
Id. at 1083.
We are not alone in this conclusion. Although courts in
other circuits have embraced varying definitions of “legal
mail,” there is general agreement that mail from a prisoner’s
attorney is always included in such a definition. See, e.g.,
Keenan, 83 F.3d at 1094 (stating mail from a prisoner’s
lawyer is legal mail); Lemon v. Dugger, 931 F.2d 1465, 1466
(11th Cir. 1991) (same); Jensen, 648 F.2d at 1182 (same).
When the Supreme Court considered the question of
incoming legal mail in Wolff, 418 U.S. at 576-77, it
concluded that a prison policy requiring an inmate to be
present when mail from his attorney is opened adequately
protects the inmate’s constitutional rights.
We find that the prisoner's interest in unimpaired,
confidential communication with an attorney is an integral
14 Sallier v. Brooks, et al. No. 01-1269
component of the judicial process and, therefore, that as a
matter of law, mail from an attorney implicates a prisoner’s
protected legal mail rights. See Kensu, 87 F.3d at 174
(referring to a prisoner’s right to protect the contents of
correspondence with an attorney as a “fundamental right”).
There is no penological interest or security concern that
justifies opening such mail outside of the prisoner’s presence
when the prisoner has specifically requested otherwise.
III. Qualified Immunity
Given our conclusion that Claims I, K, N, and O through T
involve “legal mail,” we now turn to the defendants’ qualified
immunity defense. Government officials who perform
discretionary functions are generally protected from liability
for civil damages as long as their conduct does not violate
“clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is
a purely legal question to be determined prior to trial, see
Donta v. Hooper, 774 F.2d 716, 719 (6th Cir. 1985), and a
plaintiff bears the burden of proving that a clearly established
right existed at the time a defendant's actions took place. See
Tucker v. Callahan, 867 F.2d 909, 913 n.3 (6th Cir. 1989). In
determining whether a constitutional right is clearly
established at the time of the actions in question, we “look
first to decisions of the Supreme Court, then to decisions of
this Court and other courts within our circuit, and finally to
decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536,
539 (6th Cir. 1994). A court need not have held that the very
action in question is unlawful if, in light of pre-existing law,
the unlawfulness is apparent. See Dickerson v. McClellan,
101 F.3d 1151, 1158 (6th Cir. 1996).
As we have recently observed:
Qualified immunity involves a three-step inquiry. First,
we determine whether, based upon the applicable law,
the facts viewed in the light most favorable to the

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No. 01-1269 Sallier v. Brooks, et al. 15
plaintiffs show that a constitutional violation has
occurred. Second, we consider whether the violation
involved a clearly established constitutional right of
which a reasonable person would have known. Third, we
determine whether the plaintiff has offered sufficient
evidence “to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly
established constitutional rights.”
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quoting
Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en
banc). As noted above, the first step of the inquiry is met for
Sallier’s claims involving mail from the courts and counsel:
the facts viewed in the light most favorable to him show that
a constitutional violation occurred. See Saucier v. Katz, 533
U.S. 194, 201 (2001) (“In the course of determining whether
a constitutional right was violated on the premises alleged, a
court might find it necessary to set forth principles which will
become the basis for a holding that a right is clearly
established. This is the process for the law's elaboration from
case to case, and it is one reason for our insisting upon
turning to the existence or nonexistence of a constitutional
right as the first inquiry.”)
The second step of the inquiry is whether the violation,
when it occurred, involved a clearly established constitutional
right. All of Sallier’s claims in this case occurred on or
before February 5, 1996. At that point in time, this court had
struggled with the issue of legal mail in our published
opinions in Knop, Lavado, and Muhammad. In Knop, a 1992
decision, we noted that a prisoner’s right to receive mail is
protected by the First Amendment and that the attorney-client
relationship is shielded from unwarranted intrusion in
criminal settings by the Sixth Amendment. 977 F.2d at 1012.
In 1993 in Lavado, when faced with a qualified immunity
issue, we held that it was clearly established as of 1987 that
a prisoner’s mail could not be opened and read in an arbitrary
and capricious fashion. 992 F.2d at 610. Both parties and the
court in Lavado referred to correspondence from the Eleventh
16 Sallier v. Brooks, et al. No. 01-1269
Circuit Court of Appeals as legal mail, although the status of
the mail in question was not at issue in the case. See id. at
609. In Muhammad, a 1994 opinion, we observed that other
courts “have consistently recognized that ‘legal mail’ includes
correspondence from elected officials and government
agencies, including the offices of prosecuting officials such as
state attorneys general.” 35 F.3d at 1083. We emphasized in
that case that a prisoner has a fundamental interest in
maintaining the confidentiality of correspondence with the
attorney general, just as with other legal assistance
organizations. Id. Again, however, the status of mail
received from a court was not directly in issue.
On the other hand, a panel of this court held in an
unpublished 1993 opinion that a prisoner failed to state a
constitutional claim when she alleged that mail received from
the courts had been opened outside of her presence. See
Meckley v. FCI Lexington Mailroom Staff, 1993 WL 187945
at *2 (6th Cir. 1993). In that case, a prisoner challenged the
constitutionality of applying to court mail the presumption
that all incoming mail can be opened unless it is marked with
“Special Mail - Open only in the presence of the inmate.”
Adopting the reasoning of the Seventh Circuit in Martin, 830
F.2d at 78-79, the panel in Meckley based its holding on the
assumption that court mail generally contains matters of
public record. Meckley, 1993 WL 187945 at *2.
Given this lack of clarity with regard to the status of
prisoner mail received from courts at the time that the
plaintiff’s mail was opened in this case, we conclude that the
defendants are entitled to qualified immunity from liability on
claims involving mail from the courts. Although there is
language in Lavado and Mohammad suggesting that mail
from a court is legal mail, the holding in Meckley, even
though the opinion was unpublished, was directly to the
contrary. Furthermore, at the time Sallier’s mail was opened,
the Seventh Circuit had stated in widely-quoted dicta that
mail from courts was not “legal mail.” See Martin, 830 F.2d
at 78-79. Nothing from the Supreme Court, or in our circuit

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No. 01-1269 Sallier v. Brooks, et al. 17
precedent, or from our sister circuits at the time clearly
established that mail from a court was protected as legal mail.
Attorney mail is, of course, an altogether different story.
We had clearly indicated in Muhammed that attorney mail
was “legal mail” and that a prisoner is entitled to be present
when his attorney mail is opened. Indeed, the defendants
concede, although arguing that the law with regard to “legal
mail” is generally unclear, that “the most that can be said is
that attorney mail was clearly established as legal mail.”
This analysis brings us to the third step of the qualified
immunity: whether Sallier has offered sufficient evidence to
indicate that the defendants’ actions were objectively
unreasonable in light of the clearly established constitutional
rights. In all three claims involving mail from counsel, the
defendants listed the letters on the legal mail log as legal mail.
They simply failed to follow established procedures requiring
Sallier’s presence before the letters were opened. Such a
failure, after recognition of the letters as protected legal mail,
is objectively unreasonable, and we conclude that the
defendants are not entitled to qualified immunity on these
three claims.
In sum, the defendants are entitled to qualified immunity
for Claims O through T because it was not clearly established
at the time that mail from the courts was protected legal mail,
and the district court erred in holding to the contrary.
Accordingly, Claims O through T should not have been
submitted to the jury, and the jury verdict on those claims
must be vacated. However, the defendants are not entitled to
qualified immunity for Claims I, K, and M; those claims were
properly submitted to the jury for a determination on the
factual question of whether the letters in question were
opened by the defendants outside of Sallier’s presence. The
jury’s verdict on Claims I, K, and M is therefore affirmed.
18 Sallier v. Brooks, et al. No. 01-1269
IV. Failure to Grant Remittitur or a New Trial
We review a remittitur ruling for abuse of discretion. See
Gregory v. Shelby County, Tenn., 220 F.3d 433, 443 (6th Cir.
2000). “A trial court is within its discretion in remitting a
verdict only when, after reviewing all evidence in the light
most favorable to the awardee, it is convinced that the verdict
is clearly excessive, resulted from passion, bias or prejudice;
or is so excessive or inadequate as to shock the judicial
conscience of the court.” Id. We find that the jury award in
this case, $750 in compensatory damages and $250 in
punitive damages for each of the three claims properly
submitted, is not clearly excessive, does not show the jury
acted from passion, bias, or prejudice, and does not shock our
judicial conscience.
We likewise review the denial of a motion for a new trial
for abuse of discretion. See Barnes v. Owens-Corning, 201
F.3d 815, 820 (6th Cir. 2000). When the new trial motion is
based upon a challenge to jury instructions, we must evaluate
the jury instructions to determine whether, taken as a whole,
they were misleading or provided an inadequate
understanding of the law. See Bowman v. Koch Transfer Co.,
862 F.2d 1257, 1263 (6th Cir. 1988). The defendants first
argue that the legal mail instruction was in error. We agree
and, as stated above, find that the court should have
determined which letters were legal mail and submitted only
those claims to the jury. As for the rest of the defendants’
complaints concerning the jury instructions – namely, those
related to specific intent, prior convictions, and government
witnesses, as well as the contention that the district court
should have used a special verdict form with separate sections
for the two defendants – we find no error. When taken as a
whole, the jury instructions, with the exception of the legal
mail instruction, were not misleading and did not provide an
inadequate understanding of the law.
The defendants also argued for a new trial based on
evidentiary rulings involving hearsay and the best evidence

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No. 01-1269 Sallier v. Brooks, et al. 19
rule. After a careful review of the record, we cannot say that
the district court abused its discretion in denying the motion
for a new trial that challenged these rulings.
CONCLUSION
For the reasons set out above, the jury verdict on Claims A
through H, J, L, and N through T is set aside, and the
judgment in the plaintiff’s favor on those claims is
REVERSED; the jury verdict on Claims I, K, and M is
sustained, and the judgment in the plaintiff’s favor on those
claims, for a total of $3,000, is AFFIRMED; and the award of
attorneys fees, which, pursuant to 42 U.S.C. § 1997e(d)(2),
cannot exceed 150 percent of the judgment, is hereby reduced
to $4,500.

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