Novosel v . NHDOC CV-10-165-PB 12/16/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Viktor Novosel

v. Case N o . 10-cv-165-PB Opinion N o .

NH Department of Corrections, Commissioner et a l .

MEMORANDUM AND ORDER

Viktor Novosel, an inmate at the New Hampshire State Prison

(“NHSP”), brings suit against a number of prison officials under

for constitutional violations regarding the

delivery of his mail. Specifically, he contends that defendants

violated his First Amendment and Fourteenth Amendment due

process rights by rejecting his brother’s letters written in

Croatian, by not informing him that his mail had been rejected,

and by not providing him an opportunity to appeal the

rejections. All parties move for summary judgment. For the

reasons provided below, I grant the defendants’ motion.

I. BACKGROUND

Novosel has been incarcerated at the NHSP for more than

thirty-five years. From 1973 until late 2006, he corresponded with his brother Mijo and other family members in their native

Croatian. Mijo is in his 80s, lives in Canada, and cannot write

in English. From late 2006 until August 2009, Novosel did not

receive any letters written in Croatian, although Mijo told him

he sent a number of such letters during that time period and

that the prison returned those letters. Novosel received Mijo’s

letters only when they were written in English by Mijo’s

daughter.

Novosel first found out that the prison was rejecting

Mijo’s letters in February 2007. Approximately a year later, on

February 2 0 , 2008, Novosel submitted an inmate request slip

asking for an explanation as to why Mijo’s letters had been

rejected. A mailroom official responded with a suggestion that

Novosel ask Mijo to examine the envelope for an explanation and

referred Novosel to Policy and Procedure Directive (“PPD”) 5.26,

which provides that letters without an inmate identification

number will be returned as undeliverable. Novosel did not

proceed with the NHSP grievance procedure at this time.

In December 2008, he received a Christmas card from Mijo

written in English. Mijo informed him that the prison continued

to return Mijo’s letters written in Croatian. Then, in August

2 2009, Novosel received a letter from Mijo written in Croatian

that had been sent via certified mail. The letter informed him

that Mijo had previously sent a letter to Novosel from Croatia

telling him about the deaths of their two siblings. Novosel

never received his brother’s letter.

On August 3 0 , 2009, Novosel sent an inmate request slip to

the mailroom to complain about the rejection of his brother’s

letters, the lack of timely notice, and the lack of an

opportunity to appeal the rejection before the letters were sent

back. In response, the mailroom asked Novosel to provide

additional information about the letters, specifically, “What

were they rejected for?” and “What was written on the

envelopes?”

Dissatisfied with the response, Novosel followed up with a

second inmate request slip on September 3 , 2009. This time the

mailroom staff responded by rubber-stamping on the inmate

request slip a citation to PPD 5.26 requiring that all mail

contain the addressee’s inmate identification number. Novosel

then filed a grievance regarding the issue with the Warden, who

informed him that the NHSP has no duty to notify an inmate when

3 incoming mail is rejected. A subsequent grievance to the

Commissioner was denied on the same ground.

Maintaining that the mailroom returned the letters either

because they were written in Croatian, or because unnamed prison

employees related to his ex-wife intentionally interfered with

his mail, Novosel filed this action in April 2010. The

Magistrate Judge recommended dismissing his Fourteenth Amendment

equal protection and Eighth Amendment claims, and allowing his

First Amendment and Fourteenth Amendment due process claims to

proceed. Doc. N o . 7 at 2 2 . I approved the Magistrate Judge’s

recommendations. Doc. N o . 1 2 .

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no

genuine dispute as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The evidence submitted in support of the motion must be

considered in the light most favorable to the nonmoving party,

drawing all reasonable inferences in its favor. See Navarro v .

Pfizer Corp.,

0 , 94 (1st Cir. 2001).

4 A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

Novosel argues that the defendants violated his First

Amendment rights by failing to deliver certain letters that his

brother Mijo wrote to him in Croatian. He speculates that the

prison refused to deliver the letters either because they were

written in Croatian or because an unnamed person working in the

mail room with ties to his ex-wife prevented the letters from

being delivered. To the extent that the letters were not

delivered because they failed to include an inmate

identification number with the address as is required by PPD

5.26, he alternately argues that the PPD is an unjustified

5 restriction on his First Amendment right. Finally, he claims

that the defendants violated his right to due process by failing

to inform him of the fact that the prison was refusing to

deliver the letters. I address each argument in turn.

A. First Amendment Claim

A prison inmate “clearly retain[s] protections afforded by

the First Amendment . . . .” O’Lone v . Estate of Shabazz,

4 2 , 348 (1987). This includes the right to send and

receive mail. See, e.g., Thornburgh v . Abbott,

(1989); Turner v . Safley,

(1987); Procunier v .

Martinez,

(1974). The right, however, is not

absolute, as it may be curtailed where it is “inconsistent with

[an inmate’s] status as a prisoner or with the legitimate

penological objectives of the corrections systems.” Pell v .

Procunier,

1 7 , 822 (1974).

Novosel presents three arguments to support his claim that

the defendants lacked a legitimate penological reason for

refusing to deliver his brother’s letters. None can survive

defendants’ motion for summary judgment.

6 1. Rejection of Letters Because They Were in Croatian

Novosel first contends that the real reason that the prison

rejected his brother’s letters was because they were written in

Croatian. Because this is not a legitimate reason to refuse to

deliver inmate correspondence, he argues, the defendants

violated his First Amendment rights in refusing to deliver the

letters. Assuming, without deciding, that the rejection of his

letters on this basis constitutes a First Amendment violation,

Novosel cannot avoid summary judgment because he has failed to

present any admissible evidence to support his speculation that

the prison rejected his brother’s letters because they were

written in Croatian. He cannot rely solely on his beliefs and

bare allegations to survive summary judgment. See Ruiz-Rosa v .

Rullán,

5 0 , 156 (1st Cir. 2007).

The NHSP mailroom corporal stated in an affidavit that mail

sent to inmates is not rejected for being written in a language

other than English. Knieriemen Aff. ¶ 4 , Doc. N o . 45-10.

Novosel has failed to produce any evidence to counter that

assertion. The only evidence he proffers is an affidavit of

Mijo’s daughter, which simply relates Mijo’s unsubstantiated

belief that the letters were rejected because they were written

7 in Croatian. Tucker Aff. ¶ 5 , Doc. N o . 45-9. Novosel has not

produced any admissible evidence from Mijo regarding the

rejected letters, including the letters themselves or the

envelopes bearing the prison’s stamped rejection rationale.

Without such evidence, I cannot infer that the rejected letters

contained Novosel’s correct inmate number and were otherwise

deliverable.

Because Novosel provides no evidence that his letters were

rejected because they were written in Croatian, this basis for

his First Amendment claim fails for lack of “competent evidence

of record that shows a genuine issue for trial.” Ruiz-Rosa,

.

2. Rejection of Letters Due to Animus

Novosel’s contention that unnamed prison employees

associated with his ex-wife deliberately interfered with his

mail by wrongfully returning Mijo’s letters similarly fails for

lack of evidence. He does not identify any particular employee

or provide evidence that such an employee had access to incoming

mail. Nor does he provide any evidence that anyone in the

mailroom was biased against him or intentionally interfered with

his mail. Rather, Novosel offers only his beliefs in this

8 regard, without supporting those beliefs with specific facts.

Without actual evidence of intentional interference, Novosel

cannot demonstrate the existence of a genuine issue for trial.

See

. Constitutionality of PPD 5.26

In response to Novosel’s allegation that his letters were

wrongfully returned to sender, defendants have offered an

alternative reason as to why they might have rejected Mijo’s

letters. Per PPD 5.26, mail that does not contain a correct

inmate identification number is considered undeliverable.

Knieriemen Aff. ¶ 5 , Doc. N o . 45-10. All undeliverable mail

with a return address is stamped “return to sender” and marked

“insufficient address.”

The envelope is also stamped with

the following: “Per PPD 5.26 all incoming and outgoing mail will

have inmate # affixed to all correspondence. Failure to comply

with this directive will result in mail being returned as

undeliverable due to improper address.”

The prison does

not keep a log of rejected letters, nor does it send notice to

the inmate to whom the undeliverable letter was sent. Id. ¶ 6.

Although there is no evidence in the record regarding the

appearance of the envelopes returned to Mijo, each time Novosel

9 filed a grievance regarding the rejected mail, the prison cited

PPD 5.26 as a possible reason for the rejection.

Novosel argues that even if the letters at issue were

rejected because they did not contain his inmate number, PPD

5.26 is unconstitutional because the NHSP could nonetheless have

delivered his mail with no undue burden. In mounting a

constitutional challenge to the regulation, the burden is on

Novosel to disprove its validity. See Overton v . Bazzetta,

(2003) (“The burden [ ] is not on the State to

prove the validity of prison regulations but on the prisoner to

disprove i t . ” ) . He has failed to bear that burden.

Four factors are relevant in deciding whether a particular

prison regulation is constitutional: “[1] whether the regulation

has a ‘valid, rational connection’ to a legitimate governmental

interest; [2] whether alternative means are open to inmates to

exercise the asserted right; [3] what impact an accommodation of

the right would have on guards and inmates and prison resources;

and [4] whether there are ‘ready alternatives’ to the

regulation.”

(citing Turner,

). In

applying these factors, I must accord “substantial deference to

the professional judgment of prison administrators, who bear a

10 significant responsibility for defining the legitimate goals of

a corrections system and for determining the most appropriate

means to accomplish them.”

Applying the four Turner factors to the instant case, I

conclude that PPD 5.26 does not constitute an unconstitutional

infringement on Novosel’s First Amendment rights. First, the

inmate number requirement is rationally related to a legitimate,

content-neutral governmental interest of ensuring an efficient

and accurate processing of mail in an environment where

misdelivered mail may endanger inmate safety. See Turner,

. Second, inmates have alternative ways of

informing family and friends of their correct mailing address,

including sending letters, making phone calls, and communicating

during visits. See

at 9 0 . In addition, upon receipt of an

undelivered letter, the sender can remedy the defect and resend

the letter, because the PPD 5.26 stamp on the envelope informs

the sender of the reason for the rejection.

Third, accommodating mail without a correct inmate number

would negatively impact the efficiency of mail processing and

drain limited mailroom resources by requiring staff to identify

the correct recipient. See

That extra step would reduce

11 resources available to screen deliverable mail for contraband,

delay the delivery of mail for other inmates, and increase the

risk of misdelivery of incoming mail. Knieriemen Aff. ¶ 1 0 ,

Doc. N o . 45-10.

Fourth, the alternative Novosel suggests, namely changing

the policy to permit the delivery of mail without correct inmate

numbers to inmates whose names are unique, is not “an obvious,

easy alternative.” See Turner,

. Such an

alternative would require the prison to entrust low-level staff

with the discretionary authority to determine which names are

sufficiently unique to warrant delivery, a result that would

defeat the purpose of the current policy of ensuring efficient

and predictable processing of mail.

Therefore, I conclude that Novosel’s challenge to the

constitutionality of PPD 5.26 is without merit.1 I do so bearing

in mind that Novosel has the burden of proving that the prison

regulation is invalid, and that prison officials’ judgments as

1 Given my conclusion that Novosel’s claim fails on the merits, I need not consider defendants’ arguments that the statute of limitations bars the claim and that Novosel has not properly exhausted his administrative remedies under the PLRA.

12 to the appropriate means of furthering penological goals are

owed significant deference. See Overton,

.

B. Fourteenth Amendment Due Process Claim

Novosel also contends that the prison’s failure to provide

him with prior notice of and an opportunity to appeal the

prison’s refusal to deliver the letters violated his due process

rights. Given that he has not demonstrated that the letters

were rejected either because they were written in Croatian or

because of the animus of an employee affiliated with his ex-

wife, the only issue is whether the prison had to provide

Novosel with notice and opportunity to appeal the rejection of

letters lacking his correct inmate number. Because these

procedural protections are not constitutionally required,

defendants are entitled to summary judgment with respect to

Novosel’s due process claim.

When a prison rejects an inmate’s letter because of its

contents, due process requires that the inmate be notified of

the rejection and given a reasonable opportunity to protest that

decision. Martinez,

. Novosel cites no cases

requiring the same when a letter is rejected unopened based on

perceived defects on the envelope, such as an incomplete

13 address. If Mijo’s letters were rejected per PPD 5.26 because

he did not include Novosel’s inmate number, the rejection in no

way constituted censorship that would violate Novosel’s due

process rights. See Sikorski v . Whorton,

(D. Nev. 2009) (“Due Process [ ] does not require defendants

to provide plaintiffs notice and an opportunity to appeal the

decision . . . regarding mail that was returned to the sender

because of noticeable violations on the outside of the envelope

. . . . ” ) ; see also Jeffries v . Snake River Corrs. – Or., Civ.

N o . 05-1851-JO,

, at *5 (D. O r . Aug. 4 , 2008)

(analyzing the issue under the First Amendment and concluding

that “the prison’s policy of not notifying inmates about mail

that has been returned to the sender for a noticeable violation

[such as an incomplete inmate address] is constitutional”). In

fact, the NHSP policy of returning insufficiently addressed mail

without notice to recipient is consistent with the procedure of

the U.S. Postal Service.

Once again, the issue is governed by Turner. See Avery v .

Powell,

, 12 (D.N.H. 1992) (“Courts analyzing

prison regulations concerning incoming mail use the Turner

standard to determine whether the regulation violates an

14 inmate’s due process rights.”). Under the first Turner factor,

the policy of returning to sender unopened, noncompliant

incoming mail without providing the recipient-inmate prior

notice or an opportunity to appeal is rationally related to a

legitimate governmental interest of conserving scarce resources.

See 482 U.S. at 89-90. Documenting undeliverable letters and

notifying inmates would impose an administrative burden on the

prison’s mailroom, thereby detracting from the legitimate

interest in securely and efficiently processing inmate mail.

See Knieriemen Aff. ¶ 6, Doc. N o . 45-10.

With regard to the second Turner factor, alternative means

remain for inmates to receive their mail, including having

senders resend the rejected letters after providing a correct

inmate number, as the PPD 5.26 stamp on the envelope would

instruct them to d o . See 482 U.S. at 9 0 . Moreover, Novosel

received post-rejection notice of the possible reason for the

letters’ return, as well as a meaningful opportunity to

challenge that reason via the prison’s grievance procedure. See

Lena v . DuBois, N o . 93-1924,

(1st Cir. Mar.

2 3 , 1994) (holding that prison’s failure to provide prompt,

written notice of rejection of a book mailed to an inmate was of

15 no consequence, as the inmate eventually received notice and had

an opportunity to appeal the reason for the book’s return).

As to the third Turner factor, providing inmates with prior

notice of mail rejected due to insufficient address and an

opportunity to challenge the rejection before the letter is sent

back would burden prison resources and detract from the task of

examining properly delivered mail for contraband. See 482 U.S.

at 9 0 ; Knieriemen Aff. ¶ 6, Doc. N o . 45-10. In fact, providing

notice may be even more burdensome than delivering

insufficiently addressed mail. Lastly, under the fourth factor,

Novosel has not proposed an “an obvious, easy alternative” to

the current policy, as he has not countered the argument that

providing prior notice and an opportunity to appeal would unduly

burden prison resources. See Turner,

.

Because Novosel cannot establish that defendants violated

his due process rights by failing to provide him with prior

notice and an opportunity to appeal the decision to reject

letters lacking his inmate number, I grant defendants’ motion

for summary judgment with respect to this claim.

16 IV. CONCLUSION

For the reasons stated above, I grant the defendants’

motion for summary judgment (Doc. N o . 45) and deny Novosel’s

motion for summary judgment (Doc. N o . 5 1 ) . The clerk shall

enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 1 6 , 2011

cc: Viktor Novosel, pro se Robert S . Carey, Esq. Kristen A . Fiore, Esq. Matthew G. Mavrogeorge, Esq.

17