The federal appeals court based in Denver has rejected an inmate’s challenges to a pair of mail policies at the “supermax” prison in Colorado, noting the legitimate safety concerns underlying the restrictions.

The U.S. Court of Appeals for the 10th Circuit also appeared to suggest inmates at the United States Penitentiary, Administrative Maximum Facility in Florence may not be entitled to benefit from a key provision of recently-enacted criminal justice reform legislation because of their highly-secure confinement.

Peter George Noe was incarcerated at the facility, known as ADX, after his conviction for participating in a drug distribution conspiracy. He alleged various infringements of his constitutional rights based on three policies. First, he claimed it violated the First Amendment for ADX to reject mail simply for containing the name of another inmate or prior inmate, in what he called the “name-alone content” policy.

Second, Noe alleged it was a First Amendment violation for ADX to reject mail if it is not sent on white paper in white envelopes, and a further violation of his due process rights for the prison not to alert him to rejections.

“For example, under this new policy if my wife sends me a card bought from the store the prison photo copys (sic) it and I am only provided the copy,” wrote Noe, who represented himself in court. “But if my nephew draws me a card in school and sends it, it gets rejected. It serves no legitimate, reasonable penological interest to not just photo copy the card my nephew made and give me the copy.”

Finally, he challenged his alleged exclusion from a recidivism reduction policy contained in the First Step Act of 2018, which grants time credits and other privileges to eligible inmates.

Last year, a trial judge dismissed Noe’s lawsuit. U.S. Magistrate Judge Scott T. Varholak, in analyzing the allegations, noted ADX had reportedly rejected two incoming letters to Noe not because they merely mentioned other inmates’ names, but because the prison suspected inmates were trying to communicate through third parties to Noe.

The U.S. Supreme Court, Varholak explained, has given prisons the ability to restrict inmate-to-inmate communication for security reasons. Even if the two letters were erroneously rejected, “an isolated failure to adhere to administrative regulations, on its own, does not necessarily result in a constitutional violation,” Varholak wrote.

As for the policy mandating correspondence be on white paper in white envelopes, Varholak again found ADX had a legitimate interest in keeping drugs out of the prison, which was the policy’s justification. The magistrate judge concluded by pointing out the recidivism reduction program of the First Step Act was not required to begin until January 2022, meaning Noe had brought his lawsuit prematurely.

Despite Noe’s objections, U.S. District Court Judge Daniel D. Domenico signed off on Varholak’s recommendation and dismissed the lawsuit, barring Noe from filing his claims again.

Noe then turned to the 10th Circuit. He suggested ADX could implement less-restrictive alternatives on inmate mail, and also disputed the government’s claim that Noe could never receive time credits under the First Step Act because he committed an ineligible offense.

On Wednesday, a three-judge panel for the 10th Circuit upheld the dismissal of Noe’s lawsuit, although they disagreed with some of Varholak and Domenico’s work. For instance, although Noe had alleged a prison official told him specifically the two incoming letters were rejected because of a “name-only content” policy, the trial judges had focused on the prison’s alternate explanation of prohibiting inmate-to-inmate correspondence.

“We agree with Noe that the district court improperly adopted defendants’ version of the facts,” wrote Judge Timothy M. Tymkovich in the Oct. 5 order.

Nevertheless, the panel concluded the letters, as described, could be rejected based on the prison’s interest in maintaining safety and security. Likewise, the panel agreed the prison could rationally require mail to be on white paper in white envelopes in order for staff to interdict drugs.

For Noe’s allegation about being unreasonably excluded from the benefits laid out in the First Step Act, the 10th Circuit initially agreed he had brought that claim too soon, before the deadline to implement the law. But it disagreed with ADX that Noe was ineligible for time credits based on the crime he committed. Therefore, Domenico should not have barred Noe from refiling his claim in the future, the panel noted.

At the same time, the court believed Noe had not shown how any exclusion from the recidivism reduction program – based solely on his status as an ADX inmate – would violate his equal protection rights. That would require evidence that ADX prisoners were similar to those at other facilities, but treated differently by the government, Tymkovich explained.

“We have noted that ADX is unique in the federal prison system, being ‘the most restrictive and secure prison operated by the BOP’ that is ‘reserved for inmates who require the highest custody level that can be assigned to an inmate’,” he wrote. “In light of the stark differences between inmates at ADX and inmates at other BOP prisons, Noe simply could not plausibly allege such facts.”

The panel’s finding went beyond the prison’s argument to the court, which emphasized the First Step Act does not “categorically exclude ADX inmates.”

The case is Noe v. True et al.