Opinion
Civil Action No. 97-3480-CM
April 26, 2001
MEMORANDUM AND ORDER
Plaintiff George Edwin Florence alleges that, while an inmate at USP Leavenworth, Inmate Systems Supervisor Shari McKee, acting under color of federal law, either alone or in concert with her employees, opened plaintiff's legal mail without his consent and outside of his presence. Plaintiff also alleges that defendant J.W.Booker, former warden at USP Leavenworth, also acting under color of federal law, knew of this practice, approved of the practice, failed to take steps to stop it, and failed to better train officers. Plaintiff contends that his constitutional rights were violated. This matter is before the court on defendants' motion for summary judgment (Doc. 38) and plaintiff's motion for summary judgment (Doc. 50).
Within twenty days of the filing of defendants' motion for summary judgment, plaintiff filed a motion to amend supplemental pleadings, a motion for issuance of subpoena, and a motion for declaratory judgment. Upon review of these pleadings, the court construes plaintiff's motion for declaratory judgment to be his response to defendants' motion for summary judgment.
Defendants have moved to strike plaintiff's motion for summary judgment, claiming that the pleading is in actuality an unauthorized surreply to defendants' summary judgment reply brief. The court will, however, consider the arguments set forth in plaintiff's motion for summary judgment.
Plaintiff failed to specifically controvert defendant's facts and further failed to include a statement of material facts as to which plaintiff contends a genuine issue exists as required by D. Kan. Rule 56.1. Since plaintiff appears pro se, and pursuant to Federal Rule of Civil Procedure 56, the court will liberally construe any facts alleged by plaintiff in the light most favorable to plaintiff.
Plaintiff alleges that on November 6, 1997, he received, while in his cell at USP Leavenworth, a large manilla envelope addressed to him from his attorney. Plaintiff alleges that, although the envelope had a label affixed to it that stated "Attorney/Client Communication — Confidential; Privilege Applies — Do Not Open Unless Addressee is Present," the envelope had, in fact, been opened outside of plaintiff's presence.
The Bureau of Prisons has a policy relating to inmate correspondence which differentiates between "general correspondence" and "special mail." Legal mail, or correspondence between an inmate and an attorney, falls within the definition of "special mail." General mail, which is incoming or outgoing correspondence other than special mail, is subject to inspection and random reading by correctional staff.
Correctional staff may open special mail only in the presence of the inmate for inspection of contraband and may not read or copy the contents "if the sender is adequately identified on the envelope, and the front of the envelope is marked 'Special Mail — Open only in the presence of the inmate.'" 28 C.F.R. § 540.18(a). Section 540.18 further provides, "In the absence of either adequate identification or the 'special mail' marking indicated in paragraph (a) of this section appearing on the envelope, staff may treat the mail as general correspondence and may open, inspect, and read the mail." Id. § 540.18(b). Further, the inmate is responsible for advising any attorney that correspondence will be handled as special mail only if the envelope is properly marked Id. § 540.19(b).
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
The court acknowledges that plaintiff appears pro se and his response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for his allegations. Id.
III. Discussion
Plaintiff claims that defendants violated his constitutional rights. Defendants argue that they are entitled to qualified immunity on plaintiff's § 1983 claim.
Qualified immunity protects state actors from liability when acting within the scope of their employment. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir. 1988). The doctrine of qualified immunity serves the goals of protecting public officials "who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. 478, 506 (1978).
The Supreme Court has established a two-part approach to determine if qualified immunity applies. "[T]he better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question." Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 516 (10th Cir. 1998) (citing County of Sacramento v. Lewis, 523 U.S. 833, 842 n. 5 (1998)). Thus, the court follows this two-step test to analyze the issue of qualified immunity raised by defendants here. Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 745 (10th Cir. 1999).
The court first determines whether plaintiff has alleged the deprivation of a constitutional right. The Tenth Circuit in Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990) decided this very issue. In Smith, the plaintiff alleged that prison staff had opened and inspected his legal mail, contrary to the prison's own regulations. The defendants admitted to opening by accident one piece of plaintiff's constitutionally protected legal mail. The court held:
Such an isolated incident, without any evidence of improper motive or resulting interference with [plaintiff's] right to counsel or to access to the courts, does not give rise to a constitutional violation.
Id. at 944. Accordingly, unless plaintiff in this case can produce evidence that defendants' motive was improper or that his right to counsel or access to the courts was interfered with, there is no constitutional violation. Plaintiff offers no evidence of an improper motive on the part of defendants.
Plaintiff does, however, argue that the illegal seizure of his legal mail denied him his right of access to the Eleventh Circuit Court of Appeals. Specifically, plaintiff contends that he "received that properly designated legal mail and upon its reading, was advised in the delayed properly designated legal mail by plaintiff's Attorney of Record, Mr. John E. Fernandez, to forward to the Eleventh Circuit Court of Appeals plaintiff's contentions." Plaintiff attaches a letter from his attorney stating that the attorney has filed an "Anders" brief on plaintiff's behalf and that the attorney has withdrawn from plaintiff's case. The letter also stated that a copy of the brief was enclosed. Plaintiff further asserts that "those tardy prepared legal contentions of plaintiff concerning his liberty interest from his criminal conviction arrived at the Eleventh Circuit Court of Appeals too late."
Plaintiff has failed to produce any evidence tending to show that defendants' actions interfered with his right to counsel or access to the courts. Foremost, the letter from plaintiff's counsel is dated December 12, 1997. According to plaintiff's complaint, the alleged opening of his legal mail occurred on November 6, 1997-more than a month before this letter was written. Thus, this letter could not have been the correspondence that was opened and allegedly given to plaintiff too late to file his pleading with the Eleventh Circuit. Moreover, even if the dates did match up, the attorney states in his letter that he filed the "Anders" brief with the court and was merely providing a copy to plaintiff. Therefore, this letter fails to show that plaintiff was in any way prejudiced by defendants' alleged delay in delivering plaintiff's legal mail.
The court interprets all reasonable inferences in favor of the plaintiff. In so doing, the court finds that, even if plaintiff's counsel had properly designated his correspondence as legal mail, and even if defendants or their staff had in fact opened that piece of legal mail, there was no constitutional violation. Defendants are entitled to judgment as a matter of law.
The court questions whether the envelope was properly designated as special mail. The label containing the phrase "Attorney/Client Communication — Confidential; Privilege Applies — Do Not Open Unless Addressee is Present," was affixed to the backside of the envelope. This is contrary to 28 C.F.R. § 540.18(a), which requires that such a designation be placed on the front of the envelope. The court will assume, without deciding, that including the phrase "Attorney/Client Communication — Confidential; Privilege Applies — Do Not Open Unless Addressee is Present" on the backside of the envelope is sufficient to give the correctional staff notice that the envelope contained special mail.
Because the court has concluded that plaintiff failed to allege a deprivation of a constitutional right, the court need not proceed to the second step of the qualified immunity test.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment (Doc. 38) is granted in its entirety. Plaintiff's case is dismissed with prejudice. Accordingly, plaintiff's motion for summary judgment (Doc. 50) is denied, and all other motions in this case are moot.