CONCLUSION
Based on the foregoing analysis we grant the motion for summary judgment in

its entirety.

t
ox we ed 0 6

United States District Court Judge

Dated: March 19, 2004

13



motion for summary judgment is not simply a “metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp, 475 U.S. 574, 586
(1986). Rather, a genuine issue of material fact exists when "the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc, 216
F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences that
favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport

Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION

The United States Supreme Court “has recognized that prisonets have
protected First Amendment interests in both sending and receiving mail. . .[and that}
[plrison regulations or practices that affect a prisoner's legal mail are of particular
concern because of the potential for interference with a prisoner's right of access to
the courts.” Rowe v. Shake, 196 F.3d 778, 782 (7 Cir. 1999). Prison officials are
permitted to open and inspect a prisoner’s legal mail as long as it is done in the
prisoner’s presence and the mail is not read by the prison inspector. Wolff v.

MeDonnell, 418 U.S. 539, 577 (1974). An inmate’s right to free speech and free


to the level of a constitutional violation actionable under section 1983.”); Brown v.
Hardiman, 1986 WI. 8371, at *3 (N.D. Ill. 1986)(stating that “[g]iven the large
volume of mail flowing through an institution the size of Cook County Jail,
occasional deviations from standard practice are to be expected [and]... [s]uch
negligent oversights cannot form the basis for liability under Section 1983.").

In this case Jones has failed to point to sufficient evidence for a reasonable
trier of fact to conclude that the opening of his mail outside of his presence was
anything other than the result of negligence if in fact his mail was improperly
opened. In “Defendants’ Answer to Plaintiff's Request for Admission and
Production of Documents” Defendant Beatrice Goodwin (“Goodwin”), a mail room
supervisor for the CCDOC, responded to Jones’ questions. Goodwin stated that she
had never been disciplined for improprieties in the mail room. She also explained
the procedures used in the mail room. She explained that the incoming mail is sorted
through by hand and letters that appear to be from an attorney are stamped “legal
mail open in the presence of inmate.” Ifa piece of legal mail is opened by mistake it
is taped shut and stamped “opened in error.” Jones asks why his mail is being
opened outside of his presence and why is it taking ten to thirty days for him to get
his mai], Goodwin responds by stating the following:

Your privileged mail as stated before is not being opened, read or censored on
purpose. Occasionally privileged mail is inadvertently opened due to sorting

9



B. Mail Opened Outside the Presence of Jones

There are four groups of Jones’ mail at issue in this case and we shall address
each group in tum, Jones alleges that he had thirty-two pieces of incoming mail that
were opened outside his presence. He claims that some of the thirty-two letters were
legal mail. According to Jones, he is unable to produce the letters because they were
taken from his cell by officers during a raid of his cell, Jones has not pointed to
sufficient evidence to substantiate this allegation and he has not shown that there is
sufficient evidence for a reasonable trier of fact to conclude that the alleged thirty-
two letters contained legal matters and were improperly opened outside the presence
of Jones.

Jones also claims that there were twenty other pieces of mail that were
improperly opened outside of his presence. Jones claims that he gave the twenty
pieces of mail to his aunt. Jones also admits that some of the twenty pieces of mail
were copies of some of the thirty-two pieces of mail that were allegedly taken from
his cell. Jones has not produced the alleged pieces of mail and we find that he has
not pointed to sufficient evidence for a reasonable trier of fact to conclude that the
alleged twenty pieces of mail were opened outside his presence. Were it so simple

to prove such a claim all an inmate would need to do is assert that he has misplaced



association may be violated if prison officials open privileged mail to or from an
attorney or mail is delayed for an inordinate amount of time. Antonelli v. Sheahan,

81 F.3d 1422, 1431-32 (7" Cir. 1996),

I. Individual Capacity Claims

A. Sheahan and Velasco

In regards to the individual capacity claims against Defendants Michael
Sheahan (“Sheahan”) and Emesto Velasco (“Velasco”) summary judgment is
appropriate. The doctrine of respondeat superior is not applicable in a Section 1983
action. Sanville v. McCaughtry, 266 F.3d 724, 740 (7" Cir. 2001). Therefore, in
order to hold a defendant liable in his individual capacity the individual defendant
must be “personally responsible for the deprivation of a constitutional right,” which
can be illustrated by the fact that the defendant “directed the conduct causing the
constitutional violation,” the violation “occurred with his knowledge or consent,” or
the defendant acted with “‘deliberate, reckless indifference’ to the conduct of
subordinates,” Jd. In this case Jones has not shown that Sheahan or Velsasco had
the necessary involvement in the alleged letter opening or that they turned a blind
eye to the opening of the letters. Therefore we grant summary judgment on all

claims against Sheahan and Velasco.


reasonable trier of fact could not conclude that more than eleven pieces of the group

of seventeen pieces of mai] were privileged legal mail.

C. Mail Room Negligence

Although Jones alleges and in some instances Defendants admits that some of
his legal mail was opened outside the presence of Jones, such facts in and of
themselves are not sufficient to warrant proceeding to trial. Defendants argue that,
based on the evidence, a reasonable trier of fact cannot conclude that Defendants’
conduct, if improper, was anything other than negligent conduct. To establish
liability under Section 1983 a plaintiff must show that the defendant’s conduct was
more than merely the result of the defendant’s negligence. See Lewis v. Anderson,
308 F.3d 768, 773 (7 Cir. 2002)(stating that [nJegligence or even gross negligence
does not suffice to give rise to liability under § 1983.”); Kincaid v. Vail, 969 F.2d
594, 602 (7" Cir. 1992)(holding that there was evidence that the complaint of the
plaintiff was not properly processed but also stating: “Nevertheless, it is possible,
and we assume it for purposes of this review, that a mistake was made or the

complaint mislaid at the clerk's office by the clerks . . [and] [i]f so, this lapse was a

mere isolated incident of negligence and, under the facts set forth here, does not rise



Minute Order Form (08/97)

United States District Court, Northern District of Illinois
icf
Naihe of Astlgned Judge Samuel Der-Yeghiayan Sitting Judge if Other
or Maglstrate Judge than Assigned Judge
CASE NUMBER 01 C 6548 DATE 3/19/2004
CASE Kedron Jones, Jr. vs, Sheahan
TITLE

{In the following box (a) indicate the party filing the motion, ¢.g., plaintifY, detindant, 3rd party plaintiff, and (b) slate briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

QB) Oo Answer brief to motion due . Reply to answer briefdue__.

(4) oO Ruling/Hearingon___—ssetfor__— ss at_

(5) 0 Status hearing[held/continued to] [set for/re-set for]on___—set for at

(6) Q Pretrial conference[held/continued to] {set for/re-set for]on_—ssetfor__— at.
(7) Qo Trial{set for/te-set for] on at

(8) 5 [Bench/Jury trial] [Hearing] held/continued to att

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) WE [Other docket entry] For the reasons stated in the attached memorandum opinion, the Court hereby
grants defendants’ motion for summary judgment in its entirety. All pending dates and motions arc hereby
stricken as moot. Terminating case. Enter Memorandum Opinion.

(qj) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone.

a | Docketing to mail notices,
Mail AQ 450 form.

Copy to judge/magistrate judge. fest renee
courtroom,
MW deputy's
initials
Date/time received in
central Clerk's Office smaiting Uspury inital



F.2d 304, 307 (7° Cir. 1993). However, in Castillo the district court dismissed the
claim as frivolous stating that the “complaint had no arguable legal basis.” Jd. at
306, Unlike with the instant motion, where we are required to look at the evidence
produced during discovery, the district court inCastillo merely addressed whether or
not the plaintiff prisoner had stated a claim. The Seventh Circuit merely held that
the allegations presented before the district court were sufficient to state a claim. Id.
at 306. Therefore, we grant summary judgment on all of the remaining individual

liability claims.

IL Official Capacity Claims

To the extent that Jones filed claims against the Defendants in their official
capacities Jones is filing suit against Cook County. A suit against an individual
defendant in his official capacity is the equivalent of a suit against the governmental
entity that the individual represents. Gossmeyer v. McDonald, 128 F.3d 481, 494
(7" Cir, 1997). Local governmental units cannot be held liable for Section 1983
violations under the doctrine ofrespondeat superior “unless the deprivation of
constitutional rights is caused by a municipal policy or custom.” Kujawski v. Board

of Comm'rs. of Bartholomew County, Indiana 183 F 3d 734 , 737 (7? Cir.

11


errors, It is not our intent 1o open your legal mail. With the volume of

incoming mail every day we often work through lunch and breaks to get the

mail delivered to you daily, We can only deliver the mail we receive and

have no control of the mail once it is delivered to the Division Security Office.
Jones has failed to point to any evidence that would suggest that the opening of his
mail was the result of anything other than a reasonable mistake or at worst
negligence. It is inevitable that, considering the large amount of mail processed at
the jail, that mail room employees wil] eventually make some errors in the hand
sorting of the mail and that some legal mail will be opened by accident. Jones
claims to have sent 180 to 360 letters in the pertinent period and received 180 to 216
letters during that period. As indicated above there is only sufficient evidence for a
reasonable trier of fact to conclude that eleven incoming letters of Jones’ were legal
mail that were opened outside of his presence. The fact that only eleven of 180 to
216 letters were opened suggests that the openings were inadvertent errors and not
part of a planned scheme to read and censor Jones’ mail. Jones’ personal belief that
Defendants were engaging in such a scheme is based on nothing more than his own
speculation and is insufficient to warrant a trial on the issue.

We acknowledge that in Castillo v. Cook County Mail Room Dept. the
Seventh Circuit reversed a district court’s dismissal of a prisoner’s claim based on

the alleged improper opening of legal mail outside the presence of the prisoner. 990

10


piles of legal correspondence that was improperly opened and he would be afforded
a trial.

Jones claims that his outgoing mail was being opened. However, he has not
pointed to sufficient evidence to support his allegations. Jones complains that he
called some of the law firms and the Defendants and they were unable to confirm
whether or not they received his mail. There could be any number of explanations
for this occurrence. Jones has provided no basis for his assertion that the outgoing
mail was opened outside his presence and no evidence that there was a scheme of
Defendants to censor his outgoing mail. Therefore, no reasonable trier of fact could
find that his outgoing mail was being opened or that it was being censored.

The final group of mail at issue concerns seventeen pieces of mail. Jones
attached nine pieces of mail to his response to the motion to dismiss that Jones
claims were opened outside his presence. The government does not contest that the
mai! was opened outside his presence, but argues that only four of the nine pieces of
mail contain privileged matters. In response to Defendants’ document production
request Jones produced eight more pieces of mail. Defendants acknowledge that
seven of the eight pieces of mail were legal mail. Jones admits pursuant to Local
Rule 56.1 that four of the nine pieces of mail were legal mail and that seven of the

eight pieces of mail were legal mail. (RSF 9, 11). Thus, of the seventeen a



Defendant’s motion to dismiss Jones’ loss of property claim based upon alleged
damaged and missing mail. Judge Plunkett denied the motion to dismiss the official
capacity claims and denied the motion to dismiss the individual capacity claims.

This matter is now before us on Defendants’ motion for summary judgment.

LEGAL STANDARD

Summary judgment is appropriate when the record reveals that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the
moving party must identify “those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
y. Catrett, 477 U.S, 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial
burden may be satisfied by presenting specific evidence on a particular issue or by
pointing out “an absence of evidence to support the non-moving party’s case."/d. at
325. Once the movant has met this burden, the non-moving party cannot simply rest
on the allegations or denials in the pleadings, but, “by affidavits or as otherwise
provided for in [Rule 56], must set forth specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context of a


hundreds of letters relating to his case. Jones claims that some of his
correspondence with counsel relating to legal matters were opened by mail room
employees outside his presence and he claims that he sometimes received mail
weeks after the postmark. Jones claims that when he received letters, magazines,
and letters weeks after thcir arrival at the prison they were “soiled” and had pages
torn out. Jones also claims that he did not receive some of his letters because they
were opened, read, and stamped “return to sender, detainee discharged.” Jones
brought the instant suit pursuant to 42 U.S.C.§ 1983. Discovery was conducted and
Jones sat for a deposition although he complains to the court about having to sit for
the deposition and claims that he “was under the impression from earlier
conversations with ASA Wiedhuner that [they] would seitle this case out of court for
an agreed upon sum of money.” (P’s Mem. Opp. SJ 5).

On May 9, 2002 Judge Plunkett, the prior judge in this case, granted
Defendants’ motion to dismiss in part and denied it in part. Judge Plunkett held that
Jones had alleged a First Amendment right of free speech and association claim
based on the alleged tampering with incoming and outgoing mail and thus denied the
motion to dismiss that claim, Judge Plunkett also stated that it was premature to
dismiss Jones’ Sixth Amendment right of access to the courts claim and his Sixth

Amendment right to seek counsel of one’s choice claim. Judge Plunkett granted


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KEDRON JONES, JR., va

a MAP 2 2 2004
Plaintiff,

v. No. 01 C 6548
MICHAEL SHEAHAN, ERNESTO
VELASCO, B. GOODWIN &
JOHN DOE, Mailroom employees,

wee ewe He Se eS ES

Defendants.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Defendants’ motion for summary judgment.

For the reasons stated below we grant the motion.

BACKGROUND
Plaintiff Kendron Jones, Jr. (“Jones”) has been charged with murder and is
a pre-trial detainee at the Cook County Department of Corrections (“CCDOC”).
According to Jones, between July of 2000 and Apri] of 2001 he was seeking pro

bono legal assistance in his case and during the period he mailed and received

(ol


1999)(stating that county could not be held liable unless violation was caused by
county policy); Gossmeyer, 128 F.3d at 494, Although Judge Plunkett denied the
motion to dismiss the official capacity claims as premature, discovery is completed
and there is not sufficient evidence that would enable a reasonable trier of fact to
conclude that the opening of his letters was part of a CCDOC policy, custom, or
practice. In fact the evidence produced supports the notion that the CCDOC policies
were designed specifically to reduce the likelihood that privileged mail would be
opened. Jones argues that the improper treatment of inmate mail was part of a
practice of Defendants and in support Jones includes as exhibits affidavits from
fellow inmates Rickie Cole, Larry Williams, Randall Scott Jarrett, Sr., Arthur
McKenzie Jr., James Dolis, Cedric M. Nelson, Josal Crawford, Albert Welton Ill,
and Robert Jefferson. The affidavits contain vague and unsubstantiated allegations
regarding mail that was allegedly improperly opened or delayed. These affidavits
are insufficient to create a genuine issue of material fact warranting a trial.

Therefore, we grant summary judgment on all official capacity claims.