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Scher v. Chief Postal Inspector

United States Court of Appeals, Eighth Circuit
Aug 28, 1992
973 F.2d 682 (8th Cir. 1992)

Summary

holding that a former inmate's request for declaratory and injunctive relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 was moot because the inmate was no longer in prison

Summary of this case from Chavero-Linares v. Smith

Opinion

No. 92-1568.

Submitted August 10, 1992.

Decided August 28, 1992.

Appellants were not represented by counsel.

Henry J. Fredericks, St. Louis, Mo., for appellees.

Appeal from the United States District Court for the Eastern District of Missouri.

Before FAGG, BOWMAN, and WOLLMAN, Circuit Judges.


Gregory Scher, a former Missouri prisoner, and Mark Power, a current Missouri prisoner, appeal the district court's dismissal of their Bivens action against several postal employees. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing a direct cause of action for violations of the Constitution by federal officials). We affirm.

Because Scher is no longer in prison, his request for declaratory and injunctive relief is moot. Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). We thus consider only Scher's request for damages and Power's requested relief. We review the district court's dismissal de novo. Concerned Citizens of Neb. v. United States Nuclear Regulatory Comm'n, 970 F.2d 421, 425 (8th Cir. 1992). Taking the allegations of the complaint as true, we will affirm only if it is clear no relief could be granted. Id.

Scher and Power wrote and telephoned the United States Postal Service complaining prison administrators were "stealing, holding, tampering with, censoring, delaying, and destroying" their mail. See 18 U.S.C. § 1701, 1702, 1708 (1988) (prohibiting the obstruction or theft of mail). A postal employee informed Scher prison officials may open, examine, and censure prisoner mail. See Domestic Mail Manual § 115.97 (Dec. 15, 1991); 39 C.F.R. § 111.1 (1991); see also Adams v. Ellis, 197 F.2d 483, 485 (5th Cir. 1952) (holding sections 1702 and 1708 do not apply in a prison context). The postal employees decided to proceed no further.

Dissatisfied, Scher and Power brought this action contending postal employees discriminated against them as prisoners by not investigating their postal complaints. We conclude the district court properly dismissed Scher and Power's action because it does not state a deprivation of a constitutional right.

Scher and Power have no independent constitutional right to have postal employees investigate their complaints. Cf. Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (per curiam) (lack of police investigation, by itself, was not a deprivation of a constitutional right). Scher and Power also failed to state an equal protection claim. Prisoners are not similarly situated to nonprisoners, thus postal employees need not handle their complaints like nonprisoner complaints. See Moreland v. United States, 968 F.2d 655, 660-61 (8th Cir. 1992) (en banc); United States v. Woods, 888 F.2d 653, 656 (10th Cir. 1989).

Accordingly, we affirm.


Summaries of

Scher v. Chief Postal Inspector

United States Court of Appeals, Eighth Circuit
Aug 28, 1992
973 F.2d 682 (8th Cir. 1992)

holding that a former inmate's request for declaratory and injunctive relief under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 was moot because the inmate was no longer in prison

Summary of this case from Chavero-Linares v. Smith

finding “no independent constitutional right” to an investigation of alleged wrongdoing

Summary of this case from Pratt v. Helms

affirming dismissal of a Bivens claim based on refusal of postal employees to investigate a complaint regarding treatment of prisoners' mail

Summary of this case from Mays v. LaRose

stating that there was no constitutional right to have a plaintiff's complaints regarding mail tampering investigated

Summary of this case from Linares v. Mahunik
Case details for

Scher v. Chief Postal Inspector

Case Details

Full title:GREG SCHER; MARK POWER, APPELLANTS, v. CHIEF POSTAL INSPECTOR; B.J…

Court:United States Court of Appeals, Eighth Circuit

Date published: Aug 28, 1992

Citations

973 F.2d 682 (8th Cir. 1992)

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