The DOC mail regulations say that some prisoners who have no money can get free postage for outgoing personal and legal mail. However, DOC regulations place severe restrictions on who can get free postage. The DOC’s definition of indigence is much worse than that used by the courts to determine whether to waive the filing fee for a court case. Just because the court will let a prisoner file his or her case for free does not mean that the DOC will let him or her mail papers to the court for free. The DOC definition of who is indigent is set forth at 103 CMR 481.06:
Indigent Inmate – Upon request for waiver of fees or cost, an inmate may be declared indigent if:
(a) At the time of the request, the inmate has, in all accounts to which he or she has access, a total amount less than or equal to $10.00 plus the cost or fees sought to be waived; and
(b) At no time for the 60 days immediately preceding said request, have the inmate’s accounts contained more than $10.00 plus the cost or fees sought to be waived. (e.g. request to waiver $5.00 on July 1, 1998; indigent if, at no time since May 1, 1998, total in accounts has been more than $15.00).
In addition to the above definition, the superintendent may in his discretion, designate an inmate as indigent if the inmate has less than $2.00 in his account at the time of the request, or in other circumstances as he or she deems appropriate.
103 CMR 481.06
If a prisoner qualifies under this standard, he or she can get free postage to mail legal papers to the courts and for three personal letters to friends and family per week. The regulation that governs this is 103 CMR 481.10:
Free Postage for Indigent Inmates
Indigent inmates shall be permitted to mail three letters first class weighing one ounce or less each week at institution expense. In addition, an indigent inmate shall be permitted, where necessary, to send an unlimited number of letters of any weight to any court official at institution expense. A charge shall not be placed against future deposits to an inmate’s account for the cost of postage and materials supplied in accordance with 103 CMR 481.10.
103 CMR 481.10
INDIGENT MAIL TO ATTORNEYS
Indigent prisoners do not receive postage for privileged legal mail being sent to attorneys due to a change in the mail regulations that occurred in April 2002. The change removed the provision for indigent mail postage on letters to attorneys. PLS recognizes that this is an important issue affecting the ability of prisoners to seek legal representation, to communicate with their attorney and to carry out the obligations of a pro se litigant. When this change occurred, our office engaged in advocacy on this issue with the DOC but we were unsuccessful. We were also unable to find attorneys willing to challenge the DOC policy in court.
Prisoners who wish to challenge the application of the regulation in court would have to meet the legal standard for denial of access to the courts under Lewis v. Casey, 116 S.Ct. 2174 (1996). That standard basically requires that a prisoner litigant be able to demonstrate that the prison policy has caused “actual injury” in the form of a non-frivolous case being dismissed or the prisoner being prevented from bringing a non-frivolous case.
INTERFERENCE WITH PRO SE LITIGATION
The limitations contained in the DOC’s definition of indigence often create problems for prisoners who are engaged in pro se litigation in the state or federal courts. Prisoners with no money find themselves facing filing deadlines for complaints, answers, briefs, or notices of appeal, while at the same time they are refused postage to mail those items to the courts because they had $15 in their account six weeks ago. In some circumstances, these filing restrictions may cause the DOC to deny postage until after the statute of limitations has run on the case. An example is a lawsuit to challenge an improper disciplinary conviction, which must be filed within sixty days after the superintendent denies the prisoner’s appeal. A suit for denial of access to courts based on the effect of the mail regulations causing dismissal of a prisoner’s pro se litigation would be subject to the same Lewis v. Casey standard described above.
If a prisoner is denied the ability to carry out his or her responsibilities in a pro se suit (for example, denied postage to serve defendants or to serve interrogatory answers) PLS suggests that, in addition to filing a grievance and appealing any denials, the prisoner draft a short motion to the court in the case explaining that he or she is indigent and is prepared to do what is required but that the DOC regulation prevents him or her from mailing out what is required. Attach copies of the regulation and of any paperwork showing the attempt(s) to mail out the materials and the denial(s). Prisoners should attach a copy of whatever it is they were required to send out to the attorney and ask that the court do it for them because they are unable or that the court require DOC to give them the postage. Be sure to keep a copy so that the prisoner can still mail it out if the court orders DOC to provide the postage.
If a prisoner’s lawsuit is dismissed because (1) he or she missed the statute of limitations and (2) the prisoner can show that he or she missed the filing deadline because he or she had no money, asked for postage, and was denied postage, the prisoner may have a claim. If the prisoner’s appeal was dismissed because he or she was unable to file a notice of appeal under similar circumstances, the prisoner may have a claim. If summary judgment was granted against the prisoner because he or she was unable to file a brief or an affidavit because he or she was denied postage to mail it to the court, the prisoner may have a claim. Any lesser damage than dismissal of the case or the rendering of judgment against the prisoner will probably not support a constitutional claim.
GENERAL MAIL RULES
Whether a prisoner qualifies as indigent or not, the number of persons to whom he or she can write are the same. This is controlled by 103 CMR 481.09:
Amount of Mail
Except as provided in 103 CMR 481.10 where an inmate requests free postage, there shall be no limitation placed on the number of persons with whom an inmate may correspond, nor shall there be any limitation on the number of letters an inmate may send or receive.
In general, prisoners are not allowed to write to other prisoners in Massachusetts. The regulation that controls this is 103 CMR 481.21. It allows for prisoner-to-prisoner correspondence only when approved by the Superintendents at both prisons and the prisoners are either immediate family members or parties to the same legal action in which they represent themselves. Those few letters that may be permitted between prisoners will also be subject to all of the inspection and refusal provisions that apply to mail to friends and family. This is true even for prisoner-to-prisoner mail that concerns legal matters.