Al-Amin v. Smith

¶4HULL, Circuit Judge:

¶5In this 42 U.S.C. § 1983 action, plaintiff-appellee, a state prisoner, alleges that defendants-appellants repeatedly opened his privileged attorney mail outside of his presence and thereby violated his constitutional rights to access to the courts and free speech. Defendants appeal the denial of their motion for summary judgment on qualified immunity grounds. After review and oral argument, we reverse the district court’s qualified immunity ruling as to plaintiffs access-to-courts claim but affirm as to plaintiffs free speech claim.1

¶6I. BACKGROUND

¶7From 2002 to 2007, plaintiff Jamil Al-Amin was a prisoner at Georgia State Prison (“GSP”), operated by Georgia’s Department of Corrections (“DOC”).2 Defendants are Hugh Smith, GSP warden, and Sanche Martin, his assistant.

¶8A. DOC’s Mail Policy

¶9The DOC policy known as “SOP IIB04-0001” provides certain mail privileges to inmates at Georgia prisons. Specifically, SOP IIB04-0001 provides that correspondence between inmates and their attorneys is “privileged mail.” An inmate’s attorney includes “any attorney with whom the inmate has had, or is attempting to establish, an attorney client relationship” and who is licensed to practice in state or federal courts. The policy provides for external inspection of privileged mail “by fluoroscope, metal detecting device, or manual inspection for the purpose of detecting contraband.”3

¶10Following an external inspection, “an appropriately designated staff member may open and inspect (but not read) all privileged mail in the presence of the inmate/probationer to whom it is addressed.” Thus, under DOC’s own policy, GSP may not read Al-Amin’s attorney mail and may open it only in his presence.4

¶11B. Mail from Al-Amin’s Wife

¶12In 2002, plaintiffs wife, Karima Al-Amin (“Karima”) began sending legal correspondence marked “legal mail” to him. Kari-ma is a licensed attorney practicing in Atlanta, Georgia.

¶13From April 13, 1999 to August 1, 2004, defendant Martin oversaw the daily operations of the prison mailroom.5 Martin admits that, in April 2002, she accidentally opened a letter from Karima. As Martin resealed the letter, she saw that Karima was an attorney and that the letter came from Karima’s law office. Martin informed Warden Smith that Al-Amin had received “mail of a personal nature” from his attorney-wife.

¶14*1321In May 2002, Warden Smith asked Al-Amin for a list of his attorneys of record. Smith asked for the list because Al-Amin had a number of attorneys and Smith did not want mailroom staff opening Al-Amin’s legal mail outside Al-Amin’s presence. Al-Amin gave Smith the names of five attorneys, but did not include Karima.6 Because Al-Amin did not identify Karima as one of his attorneys, Smith informed Martin and other mailroom staff that Kari-ma’s letters should be treated as regular mail. According to Smith and Martin, Al-Amin and Karima never informed them that Karima was representing Al-Amin.

¶15C. August 2003 Grievance

¶16In 2003, Officer James Jones, who brings legal mail to inmates, told Al-Amin that Martin was opening legal mail from Karima. Al-Amin then filed an August 2003 grievance alleging that Martin had “knowingly[J ignoring and disregarding D.O.C. Policy, instructed that my Legal Mail is to be opened.” Al-Amin’s grievance listed his nine attorneys, including his wife. Al-Amin requested that his privileged mail be treated as such.

¶17On September 19, 2003, Warden Smith denied the grievance, stating that “[n]o evidence was found to support the allegations you made against Ms. Martin. Mail is processed within established guidelines.” On September 25, 2003, Al-Amin filed a grievance appeal, repeating his allegations and stating that “[m]y wife is one of my lawyers and should be shown the respect of any attorney.”

¶18On November 13, 2003, as part of the grievance investigation, Theresa Jarriel submitted a sworn statement based on a telephone interview with Martin. Martin told Jarriel that: (1) when Al-Amin came to GSP, he received legal mail in envelopes with preprinted business labels from his wife; (2) “a lot of the privileged mail had personal letters in it although some of the envelopes contained legal transcripts and such”; and (3) because Al-Amin was asked to list his attorneys and Karima was not included, Warden Smith instructed mail-room staff to open all mail received from Karima, whether privileged or not, before taking it over to Al-Amin’s building.

¶19On November 14, 2003, Warden Smith submitted a sworn statement that “Al-Amin’s legal mail received from any attorney of record is opened in his presence as established in policy. Mail received from his wife who I am told is an attorney or legal representative has been opened outside of inmate Al-Amin’s presence.” On November 18, 2003, Smith sent a memorandum to the DOC’s Assistant Regional Director and the lead investigator for Inmate Affairs and Appeals stating that mail arriving for Al-Amin would be processed as privileged mail as long as it met the criteria under the mail policy.

¶20D. November 25, 2003 Grievance Response

¶21On November 25, 2003, Raymond Head, manager of the Inmate Affairs Unit, issued a grievance response. According to Head’s response, Al-Amin’s allegation was “referred to the appropriate staff for appropriate action to ensure this does not occur again in the future.” Warden Smith received Head’s grievance response and instructed Martin to now treat all mail from Karima as legal, privileged mail and to open it in Al-Amin’s presence. Martin, *1322in turn, instructed the mailroom staff to treat mail from Karima as legal mail.

¶22In her affidavit, Martin states that after November 25, 2003, she treated all of Kari-ma’s mail as legal mail and she never opened any of it outside Al-Amin’s presence.7 Martin avers that she never instructed or permitted any individuals to inspect Al-Amin’s privileged mail.8 If any of Karima’s mail was opened outside Al-Amin’s presence after November 25, 2003, Martin states, “it was inadvertently done by the mail room sorter.”

¶23According to Warden Smith’s affidavit, he was not aware that any of Karima’s mail was treated as non-privileged after November 25, 2003. Had Smith known that mailroom employees were treating Karima’s mail as non-privileged, he would have corrected the situation.

¶24In contrast, Al-Amin testified that legal mail from Karima continued to be opened outside his presence even after Head’s November 25, 2003 grievance response. Al-Amin points to thirteen envelopes (attached to his complaint) mailed between June 28, 2004 and February 8, 2005 as legal mail opened outside his presence.9 Further, in 2005, Karima questioned Warden Smith about the continual opening of AJ-Amin’s legal mail. Smith replied that the opened mail from Karima was mail from her home of a personal nature. Kari-ma informed Smith that all communications had been duly marked as “legal mail” and that she had not sent any mail from her home.

¶25E. Al-Amin’s Complaint

¶26On March 21, 2005, Al-Amin filed a § 1983 complaint against Warden Smith and Martin in their individual capacities.10 Attached to the complaint are photocopies of the thirteen envelopes between June 28, 2004 and February 8, 2005, which he alleges were improperly opened before reaching him.11 The return address on each envelope is Karima’s law office address and each is marked “legal mail.” Four of the envelopes are also marked “attorney-client privilege.” AJ-Amin’s lawsuit seeks damages for only these thirteen letters.12

¶27*1323However, as background, Al-Amin’s complaint stresses that during 2003 defendants had previously opened and read his attorney mail and been told to stop. According to Al-Amin’s complaint, during 2003, Martin knowingly violated the DOC policy by instructing mailroom staff to open and read his legal mail outside his presence and GSP staff continued to do so even after Head’s November 25, 2003 directive to treat Al-Amin’s legal mail as privileged.

¶28Al-Amin’s complaint further alleges that Martin’s authorizing of GSP mailroom staff to continue to open and read all of Al-Amin’s privileged mail from Karima violated not only the DOC mail policy but also his constitutional rights. As to Warden Smith, the complaint alleges that, after Al-Amin’s grievance was sustained, Smith knowingly failed to take corrective actions to ensure that Al-Amin’s legal mail was not opened and read outside Al-Amin’s presence, thereby violating his constitutional rights.

¶29Al-Amin requests: (1) a declaratory judgment that defendants violated his constitutional rights; (2) a permanent injunction ordering defendants to open his attorney mail only in his presence; (3) nominal and punitive damages; and (4) attorney’s fees.13

¶30F. Cross Motions for Summary Judgment

¶31Defendants’ motion for summary judgment argued that Al-Amin had shown no constitutional violation because Al-Amin: (1) did not list his wife on his attorney-of-record list and therefore his wife’s mail was not privileged; and (2) did not articulate any actual injury caused by his alleged denial of court access. Defendants also argued that they were entitled to qualified immunity because they had no fair warning that their actions were unconstitutional.

¶32In response, Al-Amin moved for summary judgment, arguing that: (1) defendants knew that Karima’s letters were privileged attorney mail from the envelopes themselves, which bore her law firm address and were labeled “legal mail”; (2) the DOC mail policy did not require Al-Amin to list his attorneys; and (3) even after Head’s November 25, 2003 instruction not to open legal mail from Karima outside Al-Amin’s presence, defendants continued to do so.

¶33G. District Court’s Two Orders

¶34In an August 23, 2006 order, the district court denied the parties’ cross motions for summary judgment as to Al-Amin’s attorney mail claim.14 The district court con-*1324eluded the law was clearly established in 2003-04 that prison officials violate an inmate’s First Amendment rights by opening properly marked legal mail outside the inmate’s presence.15 However, the district court determined that material fact issues existed as to whether the mail in question met the standards for privileged mail, whether prison officials required Al-Amin to list his attorneys, and whether Al-Amin suffered actual injury.

¶35The district court’s September 19, 2006 order denied defendants’ motion for reconsideration, concluding that Al-Amin’s complaint stated claims for violations of his rights to access to the courts and free speech. Defendants appeal both orders.

¶36II. QUALIFIED IMMUNITY

¶37On appeal, Al-Amin does not challenge the DOC policy that permits GSP employees to open incoming attorney mail in his presence. Rather, Al-Amin’s claims are that defendants, in repeatedly opening his attorney mail outside his presence, violated not only that prison policy but also his constitutional rights to access to the courts and free speech. In this interlocutory appeal, the sole question is whether defendants are entitled to qualified immunity on Al-Amin’s access-to-courts and free speech claims.

¶38“Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (citation omitted). To receive qualified immunity, a government official must first establish that he was acting within his discretionary authority. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007); Vinyard, 311 F.3d at 1346. Here, Warden Smith and Martin were acting within their discretionary authority as to inmates’ mail.

¶39Once a government official establishes that he was acting within the scope of his discretionary authority, the burden shifts to the plaintiff. McClish, 483 F.3d at 1237; Vinyard, 311 F.3d at 1346. The Supreme Court has set forth a two-part test for qualified immunity. Vinyard, 311 F.3d at 1346 (citing Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)). First, a court must undertake the threshold inquiry of whether the plaintiffs allegations, if true, establish a constitutional violation. Id.If a constitutional right would have been violated under the plaintiffs version of the facts, the next question is whether the constitutional right was clearly established. Id.The right must have been clearly established at the time of the alleged violation. Id. at 1349. Further, “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). Stated another way, “the salient question ... is whether the state of the law [at the time of the events in question] gave re*1325spondents fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope, 536 U.S. at 741, 122 S.Ct. at 2516.

¶40We first analyze whether Al-Amin’s claims establish any constitutional violations.

¶41III. AL-AMIN’S ACCESS-TO-COURTS CLAIM

¶42A. Alr-Amin’s Version of Facts

¶43Defendants arg-ue that even if opening attorney mail outside an inmate’s presence violates the Constitution, Al-Amin has not shown a constitutional violation because he never listed Karima as one of his attorneys and there was no evidence that Karima was Al-Amin’s attorney. The problem for defendants is that in qualified immunity cases on interlocutory appeal, we accept the plaintiffs version of the facts and resolve only legal questions. See Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir.), cert. denied, — U.S. -, 128 S.Ct. 385, 169 L.Ed.2d 271 (2007); Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir.2005); Vinyard, 311 F.3d at 1346 n. 7.

¶44Al-Amin testified that Karima was his attorney. All thirteen envelopes in issue were sent after Head’s November 15, 2003 response sustaining Al-Amin’s grievance about GSP improperly opening his attorney mail from Karima. Although Karima was not on the May 2002 list, defendants knew, at least by November 25, 2003, that Karima was Al-Amin’s attorney and that her properly marked attorney mail should be opened only in Al-Amin’s presence. After receiving Head’s response, defendants even gave instructions that Karima’s legal mail should be opened only in Al-Amin’s presence. The thirteen envelopes were all marked “legal mail” with Karima’s full name and law office address on them, but were opened before reaching Al-Amin.16 Accordingly, we reject defendants’ argument that Al-Amin has not shown constitutional violations on this basis.

¶45B. Clearly Established Law

¶46Defendants alternatively argue that the law was not clearly established that opening attorney mail outside an inmate’s presence violates his constitutional right to access to the courts.

¶47The Supreme Court has long held that “prisoners have a constitutional right of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977).17 Further, under our binding precedent, a prisoner’s constitutional right of access to the courts requires that incoming legal mail from his attorneys, properly marked as such, may be opened only in the inmate’s presence and only to inspect for contraband. See Taylor v. Sterrett, 532 F.2d 462 (5th Cir.1976); *1326Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978).18

¶48Defendants argue that Taylor and Gua-jardo are no longer good law due to the Supreme Court’s intervening decision in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Defendants point out that the Fifth Circuit, post-Tw-ner, rejected the holdings of Taylor and Guajardo and argue that we should do the same. See Brewer v. Wilkinson, 3 F.3d 816 (5th Cir.1993). Al-Amin responds that post -Turner, several other circuits have concluded that inmates have constitutionally protected rights to have properly marked attorney mail opened only in their presence. We review these cases in detail in order to explain why Taylor and Gua-jardo’s holdings — that a prisoner has constitutional rights to have his attorney mail opened only in his presence — are not changed by Turner, and remain well-established law in this circuit. We begin with Taylor and Guajardo.

¶49C. Taylor and Guajardo

¶50In Taylor, prison officials challenged a restriction, imposed by a district court order, forbidding them from opening an inmate’s attorney mail except in that inmate’s presence. Taylor, 532 F.2d at 464. The Taylor Court concluded that an inmate’s constitutional right of access to the courts “supports that portion of the district court’s order requiring that incoming prisoner mail from ... attorneys ... be opened only in the presence of the inmate.” Id. at 475.19

¶51In reaching this result, the Taylor Court weighed “the burden on the prisoner’s access to the courts against the legitimate governmental interest of prison security.” Id. at 472. The Court noted that “[bjefore procedures that impede a prisoner’s access to the courts may be constitutionally validated, it must be clear that the state’s substantial interests cannot be protected by less restrictive means.” Id.The government interest was “jail security as affected by the introduction of contraband into the jail and by the communication of escape plans or other ... criminal activities.” Id. at 473. The Court identified the “basic prisoner interest” in “uninhibited communication with attorneys.” Id. at 475.

¶52The Taylor Court concluded that “[a]l-lowing the inspection of incoming inmate mail from [attorneys] only in the presence *1327of the inmate accomplishes a compromise of [those] two important interests without sacrificing either of them.” Id. at 477.20 “Prisoners are not inhibited in using this traditional communication medium to pursue their defense or to present their legal grievance. And jail officials are not denied the use of any mail procedure shown to be essential to jail security.” Id.In other words, the inmate’s presence insures that attorney mail will not be read and prison officials are assured that the mail contains no contraband.21

¶53Similarly, in Guajardo, prison officials appealed a district court’s ruling that incoming attorney mail could be opened and inspected for contraband only in the inmate’s presence. Guajardo, 580 F.2d at 757. The Guajardo Court followed Tay-lors, holding that “incoming [legal] mail could be opened only to inspect for contraband and in the presence of the inmate recipient.” Id. at 758. The Court noted that Taylor's requirement “derived from the nature of the correspondence involved” and that “[t]he protection afforded extends only to attorneys representing or being asked to represent an inmate in either a criminal or civil matter.” Id. at 758. The Court dismissed concerns about inmates using attorneys to violate prison rules because attorneys are bound by professional standards and would face criminal sanctions. Id. at 758-59. The Court concluded that “[t]he danger to prison security, order and rehabilitation does not outweigh the right of access to the courts.” Id. at 759.

¶54D. Turner v. Safley

¶55We would end our clearly established law analysis with Taylor and Guajardo but for the intervening Supreme Court decision in Turner, which adopted a more deferential, “reasonably related” test for determining whether prison practices im-permissibly burden inmates’ constitutional rights.

¶56Although the prison regulations at issue in Turner involved inmate-to-inmate correspondence and inmate marriages, Turner is important because it held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261; see Van Poyck v. Singletary, 106 F.3d 1558, 1560 (11th Cir.1997) (stating Turner allows “prison rules to burden inmates’ constitu*1328tional rights when reasonably related to a legitimate penological interest”).22

¶57The Turner Court identified four factors in determining the reasonableness of a prison regulation: (1) a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) the impact that accommodation of the asserted constitutional right will have on guards, inmates, and the allocation of prison resources; and (4) the “absence of ready alternatives” to the regulation. Id. at 89-90, 107 S.Ct. at 2262.

¶58Post-Turner, this Court has accorded “wide-ranging” and “substantial” deference to prisoner administrators in their execution of policies and practices that they consider necessary to preserve internal order and discipline and to maintain institutional security. See Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.1999); Lawson v. Singletary, 85 F.3d 502, 509-10 (11th Cir.1996). Such deference is justified because of “the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.” Lawson, 85 F.3d at 510. Before we apply Turner’s factors to the mail-opening issue here, we review the post-2%mer split in other circuits about this issue.

¶59E. Other Circuits Post-Turner

¶60Subsequent to Turner, the Fifth Circuit reconsidered Taylor and Guajardo and rejected their holdings under Turner’s “reasonably related” test. See Brewer, 3 F.3d at 825. The plaintiff-inmates in Brewer complained that their legal mail was opened outside their presence, despite a prison policy requiring otherwise.23Brewer involved broad “legal mail” which the Fifth Circuit described as “legal mail from various courts, attorneys, and government officials.” Id. at 818.

¶61The Fifth Circuit acknowledged prisoners’ “constitutionally protected right of access to the courts” but concluded that “what we once recognized in [Taylor] as being ‘compelled’ by prisoners’ constitutional rights&emdash;i.e., that a prisoner’s incoming legal mail be opened and inspected only in the prisoner’s presence&emdash;is no longer the case in light of Turner and Thomburgh.”24Id. at 820, 825 (citation omitted). The Fifth Circuit stated that Taylor’s requirements of the least restrictive means and a substantial or important government interest “appear[ed] to have been modified” by Turner’s “instruction that when a prison practice impinges on inmates’ constitutional rights, whatever those rights might be, such a practice is valid if it is ‘reasonably related to legitimate penological interests.’ ” Id. at 823-25. The Fifth Circuit noted that the prisoners did not allege “that their mail has been censored” and “they concede that such mail was opened and inspected for *1329the ‘legitimate penological objective’ of prison security, i.e., to detect contraband.” Id. at 825. The Fifth Circuit concluded that “the violation of the prison regulation requiring that a prisoner be present when his incoming legal mail is opened and inspected is not a violation of a prisoner’s constitutional rights.” Id. at 825.

¶62In contrast, several other circuits post-Tumer have concluded that opening properly marked attorney mail outside a prisoner’s presence infringes the constitutional right to access to the courts. See Sallier v. Brooks, 343 F.3d 868, 877-78 (6th Cir.2003) (concluding that no penological interest or security concern justifies opening attorney mail outside prisoner’s presence when prisoner requested otherwise); Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir.1995) (disagreeing with Fifth Circuit’s Brewer, and concluding the- pattern and practice of opening inmate’s properly marked incoming “court mail”25 outside his presence fails the Turner, reasonableness standard and violates inmate’s rights to free speech and access to courts) (abrogated in part on other grounds by Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996));26see also Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir.2005) (stating, “when a prison receives a letter for an inmate that is marked with an attorney’s name and a warning that the letter is legal mail, officials potentially violate the inmate’s rights if they open the letter outside of the inmate’s presence”); Davis v. Goord, 320 F.3d 346, 351-52 (2d Cir.2003) (noting, “[interference with legal mail implicates a prison inmate’s rights to access to the courts” but concluding two incidents of mail interference “are insufficient to state a claim for denial of access to the courts because [the inmate] has not alleged that the interference with his mail either constituted an ongoing practice of unjustified censorship or caused him to miss court deadlines or in any way prejudiced his legal actions”); Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir.1999) (concluding inmate stated constitutional claim based on officers opening legal mail when he was not present).27

¶63*1330The Third Circuit in Bieregu noted that although reading legal mail would infringe the right of access more than simply opening and inspecting it, “the only way to ensure that mail is not read when opened, and thus to vindicate the right to access, is to require that it be done in the presence of the inmate to whom it is addressed.” 59 F.3d at 1456 (citing Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S.Ct. 2963, 2984-85, 41 L.Ed.2d 935 (1974)). Although Bieregu involved court mail, the Third Circuit emphasized that “interference with attorney mail probably infringes the right of court access even more than interference with court mail .... Of all communications, attorney mail is the most sacrosanct.” Id.The Third Circuit pointed out that providing inmates with confidential reliable means of communication with their attorneys about grievances “releases tension in the prisons and itself advances the state interest in maintaining institutional order and security.” Id. at 1457. The benefits of such a “safety valve” advances, rather than frustrates, state interests.

¶64The Third Circuit also concluded that opening legal mail in an inmate’s presence “places no burden at all on guards, prisoners, and the allocation of prison resources: it is what the [prison] regulations have required since 1985.” Id. at 1458. When opening mail in the prisoner’s presence, the prison can check for contraband then, which satisfies the state’s security interest. The Third Circuit, however, was “careful to distinguish between a single, inadvertent opening of properly marked legal mail outside an inmate’s presence and a pattern or practice of such actions.” Id. “The former may not infringe a prisoner’s right to free speech, nor his right to court access absent a showing of actual injury.” M28

¶65The Sixth Circuit also recently concluded that no penological interest or security concern justifies opening attorney mail outside a prisoner’s presence when the prisoner specifically requested otherwise, and that the practice violates the prisoner’s First Amendment rights.29See Sallier, 343 F.3d at 877-78.30 Although not explicitly citing Turner itself, the Sixth Circuit articulated Turner’s reasonably related standard and cited to Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir.1994), which did use the Turner factors. Sallier, 343 F.3d at 873, 877; see Muhammad, 35 F.3d at 1084-86 (analyzing procedure of opening inmate’s incoming mail from state attorney general outside of his presence and concluding, “[a]ll four of the Turner factors indicate that the policy does not pass muster” under the First Amendment right).

¶66F. Turner Did Not Change Our Wellr-Established Law

¶67Applying Turner’s factors to this case, we conclude that our well-established *1331law in Taylor and Guajardo — that inmates have a constitutionally protected right to have their properly marked attorney mail opened in their presence — is not changed by Turner and remains valid, well-established law. As to the first Turner factor, a “valid, rational connection” between the prison practice and a legitimate governmental interest, we fully recognize that the government has a strong interest in prison security. However, defendants do not dispute that attorneys are unlikely to send contraband, nor have they articulated a legitimate security interest in opening properly marked attorney mail outside Al-Amin’s presence. Indeed, defendants can readily check for contraband if attorney mail is opened in the inmate’s presence, and the DOC’s own policy provides for opening attorney mail in the inmate’s presence. Assuring the inmate of the confidentiality of inmate-attorney mail by opening such mail only in the inmate’s presence actually advances the state’s interest in promoting institutional order and security. See Bieregu, 59 F.3d at 1457. The first Turner factor thus favors Al-Amin.

¶68As to the second Turner factor, Al-Amin has no other means of exercising his access-to-courts right where that access depends on confidentially communicating with his attorneys. Even if prison officials vow to open but not read attorney mail, courts have noted the inmates’ lack of trust in that vow and fear that their attorney mail will be read. Opening attorney mail only in the inmate’s presence ensures that the inmate’s correspondence with his attorney is not inhibited or chilled by his fear that this correspondence may be read by prison officials. See, e.g., Taylor, 532 F.2d at 476 (citing Robbins, 454 F.2d at 697).

¶69As to the third factor, there is no showing that opening attorney mail in an inmate’s presence burdens guards, prisoners, or the allocation of prison resources; as noted above, DOC policy already requires opening attorney mail in an inmate’s presence. While opening all prison mail in an inmate’s presence would pose an impermissible burden, we conclude properly marked attorney mail does not. As to the fourth factor, opening an inmate’s attorney mail in his presence itself is the easy alternative; it “fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Turner, 482 U.S. at 91, 107 S.Ct. at 2262. Thus, all four Turner factors weigh in Al-Amin’s favor and Turner does not undermine Taylor’s, or Guajardo’s holding.

¶70Both parties cite our post-Turner decision in Lemon v. Dugger, 931 F.2d 1465 (11th Cir.1991), but Lemon was a reading-attorney-mail case.31 In contrast, Al-Amin claims a constitutional right to receive attorney mail unopened or to have attorney mail opened only in his presence, apart from his constitutional right to receive unread attorney mail. Thus, Taylor and Guajardo, binding precedent from our predecessor court, speak more directly to the mail-opening issue. Nonetheless, Lemon’s reasoning does support our conclusion that the Turner factors favor Al-Amin. Although not discussing Turner, the Lemon Court stressed that “ ‘[t]he basic prisoner interest is an uninhibited communication with attorneys’ ” and that “ ‘[prisoners have a vital need to communicate effective*1332ly with [their attorneys].’ ” Id. at 1467 (quoting Taylor, 532 F.2d at 475) (third alteration in original). The Lemon Court shared Taylor's, concern that “the essential role of postal communication cannot be ignored” because the fact of incarceration sharply restricts an inmate’s means of communication with his attorney. Id.The Court noted that opening mail in an inmate’s presence “insures that prison officials mil not read the mail” and thus does not chill attorney-inmate communication. Id.(quoting Wolff, 418 U.S. at 577, 94 S.Ct. at 2985).

¶71Given this Court’s precedent in Taylor, Guajardo, and Lemon, we conclude that: (1) a reasonable official would have known in 2004-05 that opening properly marked, incoming attorney mail outside the inmate’s presence is unlawful and unconstitutional; and (2) Turner did not change our well-established law in that regard. Al-Amin would be home free on his ae-cess-to-courts claim but for the Supreme Court’s actual injury decision in Casey.

¶72G. Actual Injury Requirement

¶73Subsequent to Taylor, Guajardo, and Lemon, the Supreme Court clarified that “actual injury” is a constitutional prerequisite to an inmate’s access-to-courts claim. See Casey, 518 U.S. at 349, 116 S.Ct. at 2179, 135 L.Ed.2d 606; Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir.2006) (citing Casey and stating, “in order to assert a claim arising from the denial of meaningful access to the courts, an inmate must first establish an actual injury”), cert. denied, — U.S. -, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007);32Perrin, 170 F.3d at 1320 n. 13; Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir.1998); Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir.1998). “[P]rison officials’ actions that allegedly violate an inmate’s right of access to the courts must have impeded the inmate’s pursuit of a nonfrivolous, post-conviction claim or civil rights action.” Wilson, 163 F.3d at 1290; accord Singletary, 143 F.3d at 1445 (identifying the limited types of legal claims protected by the access-to-courts right as nonfrivolous appeals from a conviction, habeas petitions, or civil rights suits).33

¶74In order to show actual injury, “a plaintiff must provide evidence of such deterrence, such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case that results from actions of prison officials.” Wilson, 163 F.3d at *13331290-91; see also Perrin, 170 F.3d at 1320 n. 13 (stating in an access-to-courts claim, “plaintiffs must show ‘actual injury’-in other words, the plaintiffs must demonstrate that they had a legitimate claim that they were unable to pursue due to the prison’s restrictions”).

¶75Here, Al-Amin has not alleged the requisite actual injury. Al-Amin stated that his wife handled all his cases, including a lawsuit, a habeas corpus petition (not yet filed), and the appeal of his criminal conviction. However, Al-Amin’s testimony contains only a conclusory allegation that the mail opening compromised his cases and does not identify how any legal matters specifically were damaged. At most, Karima’s affidavit states conclusorily that “[t]he violation of opening legal mail from my office over more than a three-year period has caused harm to the client/attorney privilege, confidentiality of legal matters, and in satisfying deadlines.” Her affidavit provides no specific cases or claims being pursued, nor any deadlines missed, nor any effect on Al-Amin’s legal claims. Because Al-Amin has not shown the requisite actual injury, the district court erred in denying defendants qualified immunity on Al-Amin’s access-to-courts claim.

¶76IV. FREE SPEECH CLAIM

¶77A. Constitutional Violation

¶78Al-Amin also contends that defendants’ conduct — repeatedly opening his attorney mail outside his presence — inhibited, chilled, and interfered with his communication with his attorney and consequently violated his constitutional right to free speech. After review, we agree with the district court’s conclusions that (1) Al-Amin’s free speech claim is distinct from his access-to-courts claim; (2) defendants’ conduct violated his right to free speech; and (3) he need not show any actual injury beyond the free speech violation itself to state a constitutional claim.

¶79The First Amendment, as incorporated by the Fourteenth Amendment, prohibits states from “abridging the freedom of speech.” U.S. Const, amend. I. Mad is one medium of free speech, and the right to send and receive mail exists under the First Amendment. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 427, 113 S.Ct. 1505, 1515-16, 123 L.Ed.2d 99 (1993) (“A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have noted that the United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is as much a part of free speech as the right to use our tongues.”) (quoting Blount v. Rizzi, 400 U.S. 410, 416, 91 S.Ct. 423, 428, 27 L.Ed.2d 498 (1971)) (alteration and quotation marks omitted).

¶80Further, it is well established that a prison inmate “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); see Turner, 482 U.S. at 95, 107 S.Ct. at 2265 (quoting this proposition from Pell); Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) (same); Lawson, 85 F.3d at 509 (same). As explained earlier, Al-Amin’s use of the mail to communicate confidentially with attorneys about his cases is not inconsistent with his prisoner status or with legitimate penological objectives, but promotes the state’s interest in institutional order and security. Indeed, given their incarceration and often distance from their attorneys, prisoners’ use of the mail to communicate with their attorneys about their criminal cases may *1334frequently be a more important free speech right than the use of their tongues. Thus, we conclude that Al-Amin has a First Amendment free speech right to communicate with his attorneys by mail, separate and apart from his constitutional right to access to the courts.

¶81The closer question here is whether defendants’ conduct violated that constitutional right to free speech. This is not a case where defendants censored inmates’ mail or refused to deliver mail. Instead, defendants opened Al-Amin’s attorney mail outside his presence before delivering it to him. The issue thus is whether defendants’ pattern and practice of opening (but not reading) Al-Amin’s clearly marked attorney mail outside his presence sufficiently chills, inhibits, or interferes with Al-Amin’s ability to speak, protest, and complain openly to his attorney so as to infringe his right to free speech.

¶82In answering this question, we are persuaded by the Third Circuit’s decision in Jones v. Brown, which concluded that a state prison’s “pattern and practice” of opening attorney mail outside the inmate’s presence “interferes with protected communications, strips those protected communications of them confidentiality, and accordingly impinges upon the inmate’s right to freedom of speech.” Jones, 461 F.3d at 359.34 The Third Circuit in Jones reasoned that the practice of opening attorney mail outside the inmate’s presence “deprives the expression of confidentiality and chills the inmates’ protected expression, regardless of the state’s good-faith protestations that it does not, and will not, read the content of the communications.” Id. The Third Circuit explained that “[t]his is so because ‘the only way to ensure that mail is not read when opened ... is to require that it be done in the presence of the inmate to whom it is addressed.’ ” Id. (quoting Bieregu, 59 F.3d at 1456 (citing Wolff, 418 U.S. at 576-77, 94 S.Ct. at 2984-85)); see also Davis, 320 F.3d at 351 (“Interference with legal mail implicates a prison inmate’s rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.”).

¶83We also agree with the Third Circuit that the actual injury requirement applies to access-to-courts claims but not to free speech claims. See Jones, 461 F.3d at 359-60. Because the Supreme Court’s Casey decision concerned an access-to-courts claim, the Third Circuit determined that “nothing in the reasoning of Casey ... suggests that a prisoner ... need allege any consequential injury stemming from [an alleged First Amendment] violation, aside from the violation itself.” Id. at 359. The Third Circuit explained that while the provision of legal services and law libraries are means to ensure reasonable access to present constitutional claims to the courts, “protection of an inmate’s freedom to engage in protected communications is a constitutional end in itself.” Id. at 359-60.

¶84In a similar vein, we have stated that “ ‘[njominal damages are appropriate if a plaintiff establishes a violation of a *1335fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages.’ ” KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir.2006) (quoting Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir.2003)); see also Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978) (concluding that plaintiff could be compensated with nominal damages for procedural due process violations even absent proof of actual injury). We also have said that “nominal damages are ... appropriate in the context of a First Amendment violation.” KH Outdoor, 465 F.3d at 1261; see also McNamara v. Moody, 606 F.2d 621, 622, 625-26 (5th Cir.1979) (affirming nominal damages award to prisoner whose freedom of speech right was violated when officials refused to mail letter to his girlfriend). Our precedent thus recognizes the award of nominal damages for violations of the fundamental constitutional right to free speech absent any actual injury.35

¶85Because Al-Amin has stated a free speech violation and because actual injury is not a constitutional prerequisite to a free speech claim, the only remaining question is whether Al-Amin’s free speech right to have his attorney mail opened only in his presence was clearly established at the time of defendants’ conduct.

¶86B. Clearly Established Law

¶87Defendants argue that they did not have “fair warning” that opening mail from Karima outside Al-Amin’s presence was a free speech violation and that, therefore, they are entitled to qualified immunity on Al-Amin’s free speech claim.36 Defendants stress that our binding precedent in Taylor, Guajardo, and Lemon was based on the constitutional right to access the courts, not the right to free speech, and thus Al-Amin’s free speech right was not clearly established. The question becomes whether, for qualified immunity purposes, defendants have “fair warning” when reasonable officials know that their precise conduct (opening an inmate’s attorney mail outside his presence) is unlawful and a constitutional violation, but they do not know that it violates not only one constitutional right (the right to court access), but also a second constitutional right (the right to free speech).

¶88The problem with defendants’ argument is that the “clearly established” inquiry for qualified immunity focuses on the defendant’s conduct and whether given a particular factual situation, a reasonable official would know his conduct was unlawful and unconstitutional. See Hope, 536 U.S. at 741, 122 S.Ct. at 2516; Saucier, 533 U.S. at 202, 121 S.Ct. at 2156. We have never required that, in order for an official to know his conduct is unlawful, a reasonable official must be able to cite by chapter and verse all of the constitutional bases that make his conduct unlawful. Rather, what courts have said is that a high degree of factual similarity with conduct previously *1336held unlawful and unconstitutional is required to give a reasonable official fair and clear warning (or notice) that his particular conduct is unlawful and unconstitutional. See, e.g., Hope, 536 U.S. at 740-41, 122 S.Ct. at 2515-16; Vinyard, 311 F.3d at 1353.

¶89In this ease, exact factual identity exists between prior case law and defendants’ factual conduct. Specifically, our precedent, as discussed above, clearly establishes that a prison official violates an inmate’s constitutional rights when the official opens attorney mail outside the inmate’s presence. See Taylor, 532 F.2d at 462; Guajardo, 580 F.2d at 748.37 Thus, we conclude that defendants had fair and clear notice that opening Al-Amin’s attorney mail outside his presence was unlawful and violated the Constitution. See Vinyard, 311 F.3d at 1350 (“ ‘[I]f the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.’ ” (quoting Saucier, 533 U.S. at 202, 121 S.Ct. at 2156-57)). Accordingly, we affirm the district court’s denial of qualified immunity on the free speech claim.38

¶90V. CONCLUSION

¶91For these reasons, we reverse the district court’s denial of qualified immunity on Al-Amin’s access-to-courts claim and affirm on his free speech claim.

¶92AFFIRMED IN PART AND REVERSED IN PART.