Opinion · Court of Appeals for the Eighth Circuit

Greg Scher Mark Power v. Chief Postal Inspector B.J. Powers Brian Begley Will Stinson Agent De Bourge Mike Eaves 1-25 Does

973 F.2d 682

Type
Opinion
Court
Court of Appeals for the Eighth Circuit
Jurisdiction
Federal
Date
1992-08-28
Topic
general

How later courts describe this case

  • affirming dismissal of a Bivens claim based on refusal of postal employees to investigate a complaint regarding treatment of prisoners’ mail
  • finding “no independent constitutional right” to an investigation of alleged wrongdoing
  • inmates failed to state Bivens claim based on refusal of post office employees to investigate complaint regarding prison administrators’ handling of their mail
  • “no independent constitutional right to have postal employees investigate their complaints” that prison officials were tampering with inmates’ mail

Citator

UpLaw has not yet analyzed Greg Scher Mark Power v. Chief Postal Inspector B.J. Powers Brian Begley Will Stinson Agent De Bourge Mike Eaves 1-25 Does. The absence of a flag is not a finding that it is good law.

Cited by
16 opinions
SCHER v. CHIEF POSTAL INSPECTOR,973 F.2d 682(8th Cir. 1992)
GREG SCHER; MARK POWER, APPELLANTS, v. CHIEF POSTAL INSPECTOR; B.J. POWERS;
BRIAN BEGLEY; WILL STINSON; AGENT DE BOURGE; MIKE EAVES; 1-25 DOES,
APPELLEES.
No. 92-1568.
United States Court of Appeals, Eighth Circuit.
Submitted August 10, 1992.
Decided August 28, 1992.
Page 683
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.
PER CURIAM.
[1] Gregory Scher, a former Missouri prisoner, and Mark Power, a current Missouri prisoner, appeal the district court's dismissal of theirBivensaction against several postal employees.SeeBivens 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.

[2] 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. UnitedStates 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.

[3] 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.See18 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.SeeDomestic 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.

[4] 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.

[5] 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 situatedPage 684to nonprisoners, thus postal employees need not handle their complaints like nonprisoner complaints.See Moreland v. UnitedStates,968 F.2d 655,660-61(8th Cir. 1992) (en banc);United States v. Woods,888 F.2d 653,656(10th Cir. 1989).

[6] Accordingly, we affirm.