Kentucky Prisoner’s First and Fifth Amendment Case Reinstated by Sixth Circuit

by Derek Gilna

Federal prisoner David Wayne Baker filed a “Bivins” suit against his warden and other prison mail clerks for violations of his First and Fifth Amendment rights after his “legal mail” was opened outside his presence and he was denied access to sexually explicit magazines. The Sixth Circuit, after reviewing the lower-court dismissal, agreed to reverse and remand for further proceedings.

The district court had dismissed his case for failure to state a cause of action, sua sponte, and also, for failure to exhaust his administrative remedies and filing after the statute of limitations had expires. The appeals court noted that the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. Section 1997 e (a) required prisoners to exhaust all available prison grievance procedures before filing suit, but noted that under Jones v. Bock 549 U.S. 199 (2007), “all circuits must treat failure to exhaust as an affirmative defense, and “(prisoners) are not required to specially plead or demonstrate exhaustion in their complaints.’”

The court also noted that in Sallier v. Brooks, 343 F.3d 868 (6^th Cir. 2003), they had held that “Mail from a court constitutes ‘legal mail’ and cannot be opened outside the presence of a prisoner…” Id., at 873, 877. “Regardless of whether we would ultimately conclude that Sallier did not invalidate the BOP mail regulation, Baker at least presented a statement of an actionable claim pursuant to Fed. R. Civ. P. 8.”

The Plaintiff’s attack on the Ensign Amendment, 28 U.S. C. Section 530C(b)(6) prohibiting prisoner receipt of sexually explicit material, as unconstitutional was described by the appeals court as a case of first impression, and “now is not the time to decide the question. Even if we ultimately concur with our sister circuits, Baker presented a sufficient statement of his claim to permit his lawsuit to proceed.” See: Baker v. Mukasey, 287 Fed.Appx. 422 (6th Cir. 2008).

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