Clerk of the Circuit Court of Cook County are not privileged mail, although they had been stamped
“LEGAL MAIL-OPEN IN PRESENCE OF INMATE.” See Antonelli, 81 F.3d at 1431; Martin v.
Brewer, 830 F.2d 76, 78 (7" Cir. 1987); Stone-El v, Fairman, 785 F.Supp. 711, 716 (N.D. U.1991)
(letters from the Clerk of the Court and the like are not privileged and may be opened); Tit. 20, Ill.
Admin. Code, Ch. 1, Subch. F, Pt. 701(f) (incoming privileged mail means mail from sources
identified in subsection (e) except for clerks of courts). The letters from the United States Postal
Service, the City of Chicago Department of Police, and the Attorney Registration and Disciplinary
Commission also do not fit within any of the categories of privileged mail enumerated in Title 20.7

Citing Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2TM Cir. 1975), defendants argue that
the opening of these four letters are isolated incidents, which state a claim of constitutional
significance only if the inmate alleges he suffered some damage as a result of the interference with

his mail. Defendants have a major problem with their argument: they have mushed together Jones’s

*Title 20, Chapter I, Subchapter F, Part 701, of the Illinois Administrative Code reads in pertinent
part:

) Outgoing Privileged Mail

Outgoing letters from detainees to persons or organizations listed below which are clearly marked as
“privileged” are considered privileged and may be sealed by the detainee prior to submission for mailing.
Such letters shall not be opened by the jail staff before mailing and shall be dispatched promptly.

1) Federal or Illinois legislators; Judges of any court or the Illinois Court of Claims or clerks of courts; the
Attorney General of the United States and Illinois; the Director of the Federal Bureau of Prisons; and the
Governor of the State of Illinois.

2) The Director, Deputy Directors, or Assistant Deputy Directors of the Illinois Department of Corrections;
the Chief of the Jail and Detention Standards Unit of the Hlinois Department of Corrections; members of the
Illinois Prisoner Review Board; and county sheriffs.

3) Chief Executive Officers of the Federal Bureau of Investigation, the Drug Enforcement Administration,
the Criminal Division of the Department of Justice, and the United States Customs Service.

4) The John Howard Association.

5) Registered attorneys.

6) Any organization which provides direct legal representation to detainees, but not including organizations
which provide referrals to attorneys, such as bar associations.

£) Incoming Privileged Mail

Incoming privileged mail means mail from sources identified in subsection (e) of this Section except for
clerks of courts. Incoming privileged mail which is clearly marked as “privileged” may be opened only for
the purpose of verifying the recipient and the sender and to ascertain that nothing other than privileged mail
is enclosed. Privileged mail shall be opened in the presence of the detainee.

-4-


deal with an inadvertent opening of legal mail, then he conceivably could hold defendants liable in
their official capacities. The court accordingly will not dismiss the official capacity claim against
defendants at this time.

E. Individual Capacity Liability

Individuals cannot be held liable in a Section 1983 action unless they caused or participated
in the alleged constitutional deprivation. Vance v. Washington, 97 F.3d 987, 991 (7" Cir. 1996), cert.
denied, 520 U.S. 1230 (1997); Gentry v. Duckworth, 65 F.3d 555, 561 (7" Cir. 1995); Rascon v.
Hardiman, 803 F.2d 269, 273 (7" Cir. 1986) (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7"
Cir. 1983)). Supervisors and others in authority also cannot be held liable for any alleged
wrongdoing on the part of subordinates pursuant to the doctrine of respondeat superior because that
doctrine does not apply to § 1983 actions. See Pacelli v. DeVito, 972 F.2d 871, 877 (7" Cir. 1992);
Jones v. City of Chicago, 856 F.2d 985, 992 (7" Cir. 1988).

However, to survive a motion to dismiss, “a pleading must only contain enough to ‘allow the
court and the defendant to understand the gravamen of the plaintiffs complaint,” Payton v. Rush
Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 627 (7" Cir. 1999) (citing Doherty v. City of
Chicago, 75 F.3d 318, 326 (7" Cir. 1996)). Antonelli v. Sheahan, 81 F.3d 1422 (7" Cir. 1996), gives
further guidance as to whether Jones has sufficiently linked the defendants to the opening of his legal
mail. In Antonelli, the Seventh Circuit recognized that high level officials cannot be held liable in
their individual capacities by virtue of the doctrine of respondeat superior and explained that high
level officials normally cannot be held liable for “clearly localized, non-systemic violations.” Jd. at
1428-29, However, high level officials are expected to have personal responsibility for systemic
conditions. Jd. at 1429.

At this stage of the litigation, it is difficult to tell if the problem is non-systemic or systemic.
If unidentified employees are intentionally opening and reading Jones’s legal mail, then it is clearly
a non-systemic problem. If proper procedures have not been set up and are not being enforced for

dealing with the large volume of mail that enters and leaves Cook County Jail, then it is clearly a

-9-


In light of the number of letters that Jones states that he mailed out and that he received, if
these four letters are all that he can muster up, he will be hard pressed to demonstrate that defendants
tampered with his mail. Jones relies on Bieregu v. Reno, 59 F.3d 1445 (3 Cir. 1995). In that case,
the plaintiff contended that on 15 occasions, legal mail was opened outside his presence, and he
supplied evidence of five instances during a three-month period in which his legal mail was opened.
dd, at 1452. The opinion does not reveal how many letters the plaintiff actually mailed or received
or what kinds of procedures were in place for dealing with inmates’ mail. Likewise, in Castillo v.
Cook County Mail Room Department, 990 F.2d 304, 306 (7" Cir. 1993), the plaintiff alleged that
three privileged letters had been opened in a nine-month period. The Court of Appeals reflected that
a fact-finder faced with this meager record could not determine whether all of the plaintiff’s mail had
been opened or merely a fraction. On a more developed record, Jones will need to demonstrate that
the alleged tampering with his legal mail went far beyond a few isolated instances.

The court accordingly denies defendants’ motion to dismiss as to this claim.

B. Sixth Amendment Right of Access to the Courts and Sixth Amendment Right
to Seek Counsel of One’s Choice

Prisoners have a constitutional right to meaningful access to the courts. Bounds v. Smith, 430
U.S. 817, 821 (1977). In order to state a claim, a prisoner must demonstrate that the deprivation he
suffered hindered his efforts to pursue a legal claim and resulted in actual injury. Lewis v. Casey,
518 U.S. 343, 351 (1996) (an injury exists, for example, where inadequacies at the law library might
cause a plaintiff's complaint to be dismissed for failure to satisfy some technical requirement, or
where he was unable even to file a complaint).

Jones claims that he was effectively halted in his search for pro bono representation and thus
was forced to accept legal representation from the Office of the Public Defender.

“[A] defendant may not insist on representation by an attorney he cannot afford or who for
other reasons declines to represent the defendant.” Wheat v. United States, 486 U.S.153, 159 (1988).
Thus, the right to counsel of choice does not extend to an indigent receiving public representation.
See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989); United States v.

-6-


First Amendment right of free expression and association and his Sixth Amendment right of access
to the court.

The right to hire and consult an attorney is protected by the First Amendment’s guarantee of
freedom of speech, association, and petition. Denius v. Dunlap, 209 F.3d 944, 953-54 (7" Cir.
2000). Jones claims that his outgoing privileged mail, in which he was seeking pro bono
representation, has been opened and read. Although he did not attach any examples to his response,
his allegations are sufficient to state a claim at this stage of the litigation. See Antonelli vy. Sheahan,
81 F.3d 1422, 1431-32 (7" Cir. 1996) (allegations that legal mail was opened, delayed for an
inordinate amount of time and sometimes stolen was sufficient to state claim). As noted earlier, the
purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits.
Gibson v. Chicago, 910 F.2d 1510, 1520 (7" Cir. 1990). Considering the number of letters that
Jones admits to mailing, he will need to demonstrate, not merely allege, how many of these 180 to
360 letters were actually opened and read before being sent on to the addressees.

As to Jones’s incoming mail, he has attached four privileged letters that were opened outside
of his presence. However, of the approximately 180 to 216 letters he received, he does not state that
these were the only letters that were opened outside of his presence. Jones will be given an
opportunity to demonstrate that the opening of his mail constituted an ongoing activity.

The court notes that Jones has come close to pleading himself out of court. A plaintiff can
plead himself out of court by alleging additional facts showing that a conclusory allegation is not
true. Jackson v. Marion County, 66 F.3d 151, 153-54 (7" Cir. 1995); Tregenza v, Great American
Communications Co., 12 F.3d 717, 718 (7" Cir. 1993), cert. denied, 114 S. Ct. 1837 (1994); Early
v. Bankers Life & Casualty Co., 959 F.2d 75, 79 (7" Cir. 1992); Greer v. Roth, 1995 WL 476594 *1
(N.D. Ill. Aug. 9, 1995), Also, where allegations are inconsistent with a document provided by that
party, the document will override the allegation. See Beam v. IPCO Corp., 838 F.2d 242, 245 n.3
(7" Cir. 1988).


the items allegedly taken or damaged cannot stand. See Bullock v. Barham, 957 F Supp. 154, 157
(N.D. I1L.1997); Slaughter v. Anderson, 673 F Supp. 929, 930 (N.D. IL1.1987).

The court accordingly grants defendants’ motion to dismiss as to this claim.

D. Official Capacity Liability

Defendants argue next that even if the court finds that Jones has stated a claim of
constitutional magnitude, they can be held liable in neither their official nor individual capacities.

As defendants pointed out in their motion to dismiss, Jones does not specify whether he is
suing defendants in either their official or individual capacities, or both. Based on the presumption
in Baker y. City of Chicago Police Department, No. 99 C 1821 2000 WL 556619 (N.D. Ill.),*
defendants addressed both defendants; official and individual capacities.

An official capacity claim is, in essence, a claim against the governmental entity that employs
the defendant. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Liability under 42 U.S.C. § 1983
can be imposed on governmental entities only if the underlying constitutional deprivation resulted
from the execution of an official custom, policy or practice. Monell v. Department of Social Servs.,
436 U.S. 658, 694 (1978). There are three ways in which a municipality can be found to have
violated a person’s civil rights through its policy or custom: (1) an express policy that, when
enforced, causes a constitutional deprivation; (2) a widespread practice that is not authorized by
written law or express municipal policy but is so permanent and well settled as to constitute a custom
or usage with the force of law; or (3) a constitutional injury caused by a person with final
policy-making authority. See Baxter v. Vigo Co. Sch. Corp., 26 F.3d 728, 734-35 (7" Cir.1994).

Jones argues that the repeated opening of his legal mail outside his presence constituted a
widespread practice, If Jones is able to demonstrate at a later time that not only his legal mail but

also all legal mail in general was deliberately tampered with or that no procedures were in place to

‘ When a plaintiff fails to indicate whether he is suing defendants in their individual or official
capacities or both, normally there is a presumption that complaints against public officials are official
capacity claims. Kolar v. County of Sangamon, 756 F.2d 564, 568 (7" Cir. 1985). This presumption is
overcome when it is clear that the pro se plaintiff may not understand the technicalities of pleading Section
1983 liability. See Hill v. Shelander, 924 F.2d 1370, 1373 (7" Cir. 1991).

-8-


Miffute Order Form (96/97)

/

United States District Court, Northern District of Illinois

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

X_ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

CLE

Name of Assigned Judge PAUL E. PLUNKETT Sitting Judge if Other
or Magistrate Judge 7 than Assigned Judge
CASE NUMBER 01 € 6548 DATE| S- 9- O@
CASE Kedron Jones Jr. v. Micheal Sheahan, et al.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.
DOCKET ENTRY:
@) o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(@) im Answer brief to motion due. . Reply to answer brief due
(4) a Ruling/Hearing on set for at_
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at _
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) a Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule21 CIFRCP41(a)\(1) OO FRCP41(a)(2).
a0) ow [Other docket entry] Defendants’ motion to dismiss [12] is granted in part and denied in part.
Defendants are given 20 days to answer or otherwise plead tq‘the remaining claims in the complaint.
5 Se
(1) [For further detail see attached Memorandum Opinion and Order.]
No notices required, advised in open court. Document |

sn

eyen

Number.
number of notices ee

MAY 09 2002

date docketed.

AY

3
docketing deputy initials

“ Date/tinie received in
central Clerk’s Office

mailing deputy initials



systemic problem. The court accordingly finds it premature to dismiss any of the defendants at this
time. Moreover, if the problem turns out to be unidentified employees who intentionally opened and
read Jones’s mail, then the supervisors will be in the best position to identify these employees. See
Antonelli, 81 F.3d at 1428, citing Duncan v. Duckworth, 644 F.2d 653, 655 (7" Cir. 1981).
IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss is granted in part and denied in part.
It is granted as to Jones’s claim of stolen and damaged mail. It is denied as to Jones’s claims that
his First Amendment right of free speech and association and his Sixth Amendment right of access
to the courts and Sixth Amendment right to seek counsel of one’s choice were violated. It is denied
as to defendants’ claim that they should not be held liable in either their official or individual
liabilities.

Defendants are given 20 days to answer or otherwise plead to the remaining claims in the

complaint.

PAUL E. PLUNKETT
UNITED STATES DISTRICT JUDGE

DATED: Mex 4, 20°

-10-


Childress, 58 F.3d 693, 736 (D.C. Cir. 1995), cert. denied, 516 U.S. 1098 (1996). However, “the
Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified
attorney whom that defendant can afford to hire, or who is willing to represent the defendant even
though he is without funds.” See Caplin, 491 U.S. at 624-25.

Although the court has been unable to locate any case law discussing an indigent criminal
defendant’s right to seek pro bono counsel, it would appear that such a right would flow from the
Sixth Amendment. The court emphasizes that the right to seek pro bono counsel does not translate
into a right to be represented by counsel of one’s choice if the indigent criminal defendant is
unsuccessful in his search. In light of Lewis v. Casey, Jones will need to demonstrate actual
prejudice to his search for pro bono representation. Considering the number of letters that Jones
admits to mailing and the number of responses he received,’ this will be a high burden. Jones will
have to come forward with more than speculation that he could have secured pro bono representation
if no mishaps had happened to either his outgoing or incoming mail. However, at this stage of the
litigation, the court finds it premature to dismiss this claim.

The court accordingly denies defendants’ motion to dismiss as to this claim.

C. Loss of Property

Jones claims that books, magazines, and stamped envelopes have been taken from his mail
on different occasions and that he has received books, magazines, and legal pads in a damaged
condition. A loss of property, such as alleged here, does not constitute a deprivation of property
without due process of law in violation of the Fourteenth Amendment if the government provides
an adequate postdeprivation remedy for the loss. See Hudson v. Palmer, 468 U.S. 517, 533 (1984);
Parratt v. Taylor, 451 U.S. 527, 543-44 (1981). Illinois, in fact, provides a remedy for the tort of
conversion. See 705 ILCS 505/8(d}(1999); Clark v. Stahl, 2000 WL 631306 (N.D. lll.); Heimberger
v. Village of Chebanse, 124 Ill.App.3d. 310 (1984). Therefore, any Section 1983 claim regarding

> Presumably all the lawyers and firms that Jones approached and whose responses he received
declined to represent him or else he would not have been forced to accept representation from the Office of
the Public Defender.

-7-


in a capitol case, which has forced him to accept legal representation from the Public Defenders’
program.

Books, magazines, and stamped envelopes have been taken from his mail on different
occasions. He has received books, magazines, and legal pads soiled and with pages or articles
missing.

Til. Analysis

Jones makes three claims: (1) that his First Amendment right of free speech and association
were violated; (2) that his Sixth Amendment right of access to the courts and Sixth Amendment right
to seek counsel of one’s choice were violated; and (3) that items mailed to him were stolen or
damaged without due process of law as required by the Fourteenth Amendment.

A. First Amendment Right of Free Speech and Association

Prison officials may open a prisoner’s legal mail in his presence. Wolff v. McDonnell, 418
U.S. 539, 577 (1974). However, repeated instances of an inmate’s legal mail being opened outside
of his presence are actionable. See Antonelli v. Sheahan, 81 F.3d 1422, 1431-32 (7" Cir. 1996)
(allegations that legal mail was repeatedly opened and sometimes stolen stated claims); Castillo v.
Cook County Mail Room Dept., 990 F.2d 304, 306-07 (7" Cir. 1993) (allegations that inmate’s legal
mail was opened outside of his presence stated claim).

Inregard to his outgoing mail, Jones states that he mailed five to ten privileged letters a week
from July 2000 until April 2001, that is, approximately 180 to 360 privileged letters in a nine-month
period. He claims that mail room employees have been opening and reading this mail. In regard to
his incoming mail, Jones states that he received five to six letters a week, that is, 180 to 216 letters
during the nine-month period, which slowed to one to two letters a week when his mail was being
returned to sender. In his response to the motion to dismiss, Jones attached nine pieces of mail that
he claims were legal mail that was opened outside of his presence.

Defendants point out in their reply that of these nine letters, only four are truly privileged.

The court agrees that the two letters from the Clerk of the U.S. District Court and the letter from the

-3-


(1972). Accordingly, pro se complaints are to be liberally construed. Wilson v. Civil Town of
Clayton, Ind., 839 F.2d 375, 378 (7" Cir. 1988).

However, while it is often said that a claim may be dismissed only if, as a matter of law, “it
is clear that no relief could be granted under any set of facts that could be proved consistent with the
allegations,” Neitzke v. Williams, 490 U.S. 319, 327 (1989) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)), the Seventh Circuit has observed that this maxim “has never been taken
literally.” Kyle v. Morten High School, 144 F.3d 448, 455 (7" Cir. 1998) (quoting Sutliff; Inc. v.
Donovan Companies, Inc., 727 F.2d 648, 654 (7" Cir. 1984)). All plaintiffs — whether pro se or
represented — must include in the complaint allegations concerning all material elements necessary
for recovery under the relevant legal theory. Chowla v. Klapper, 743 F. Supp. 1284, 1285 (N.D. IIL.
1990).

II. Facts

In line with the foregoing authorities, the following factual statement is drawn from Jones’s
complaint.

Jones has been seeking pro bono legal representation in a capital murder case from July 2000
until April 2001. During this time, he has mailed five to ten letters a week through the Cook County
Jail mail room to law firms. The letters have been clearly marked privileged mail and sealed.
However, this privileged mail has been opened by maii room employees.

Jones’s incoming mail from the law firms to whom he has written has been opened outside
of his presence and has been delivered to him days and sometimes weeks after the date of the
postmark.

Some of Jones’s privileged mail has been opened, read, and stamped “return to sender,
detainee discharged.” Jones discovered that his privileged mail was being returned to sender when
his incoming mail slowed from five to six letters a week to one or two.

Jones has made defendants aware of the situation by filing grievances. He claims that

defendants have effectively halted his search for pro bono or any other kind of legal representation

-2-


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

EASTERN DIVISION a
KEDRON JONES JR., ) P OCKETED
) AY
Plaintiff, j 9 9 2002
)
v. J No. 01 C6548
) Hon. Paul E. Plunkett
MICHEAL SHEAHAN, ERNESTO VELASCO, )
B. GOODWIN, JOHN DOE MAIL ROOM )
EMPLOYES, )
)
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Kedron Jones Jr., a pretrial detainee at Cook County Jail, brings this pro se
complaint pursuant to 42 U.S.C. § 1983. Defendants Cook County Sheriff Michael Sheahan,'
Executive Director Emesto Velasco, and Beatrice Goodwin have filed a motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6). Jones has filed a response, and defendants have filed a reply. For the
following reasons, the court grants in part and denies in part defendants’ motion to dismiss.

I. Standard of Review on a Motion to Dismiss

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide
the merits. Gibson v. Chicago, 910 F.2d 1510, 1520 (7" Cir. 1990). Federal notice pleading requires
only that the plaintiff “set out in her complaint a short and plain statement of the claim that will
provide the defendant with fair notice of the claim.” Scott v. City of Chicago, 195 F.3d 950, 951 (7"
Cir. 1999). When ruling on a motion to dismiss, the court assumes that well-pleaded allegations are
true and draws all reasonable inferences in the light most favorable to the plaintiff. Henderson v.
Sheahan, 196 F.3d 839, 845 (7" Cir. 1999), cert. denied, 530 U.S. 1234 (2000). This rule has
particular force when considering the allegations of a pro se complaint, which are held “to less

stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520

*Plaintiff has misspelled defendant Michael Sheahan’s first name in the caption. The court will use
the correct spelling of defendant’s name.

Ap