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April 4, 1983


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff Joe Woods ("Woods") brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 seeking monetary, declaratory and injunctive relief for the alleged violation of his constitutional rights under the First, Fifth and Fourteenth Amendments. Before the Court is the motion to dismiss or, in the alternative, for summary judgment of defendants Richard W. DeRobertis ("DeRobertis"), Warden of the Stateville Correctional Center ("Stateville"); Melvin Allen ("Allen"), Chairman of the Institutional Inquiry Board at Stateville; and Willa Jean Aldworth ("Aldworth"), Chief Supervisor of the Stateville Mail Room. For the reasons that follow, the motion is granted in part and denied in part.

According to the allegations of the amended complaint, Woods never received eight pieces of legal mail that were delivered to the Stateville mail room between February 2, and May 11, 1982.*fn1 Woods alleges that he wrote to Aldworth on several occasions to complain of his failure to receive all of the mail that had come to the institution for delivery to him. Aldworth responded stating that the mail office had forwarded all legal mail to Woods. She noted, however, that contrary to standard procedure, the mail office had not received signed receipts to reflect delivery. All legal mail is "tagged" when it leaves the mail office. The officer delivering the mail has the inmate sign the tag when he hands him a piece of legal correspondence and returns the tag back to the mail office. Because the mail office had not received tags back for the legal letters addressed to Woods, Aldworth assumed that cellhouse personnel were causing the problem. She directed Woods to the superintendent of his cellhouse.

On February 11, 1982, Woods filed a grievance with Allen as Chairperson of the Institutional Inquiry Board ("Board"). The grievance complained about the lost mail and requested a search to locate it. Two months later, Allen, using a preprinted form, informed Woods that the Board would not conduct a hearing on the grievance because "the issue you address is no longer active. In the course of investigation I find your complaint/question has been resolved."

On March 16, 1982, Woods wrote DeRobertis about the difficulties he was experiencing with the delivery of his legal mail. DeRobertis apparently did not respond.

The allegations of the amended complaint implicate Woods' constitutional right to correspond. In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court recognized that prisoners, through their non-prisoner correspondents, have a right under the First and Fourteenth Amendments to receive communication free from arbitrary or unjustified governmental interference. Id. at 409, 94 S.Ct. at 1809. Thus, Woods' allegations that Aldworth deliberately lost or refused to deliver certain items of his legal mail clearly state a colorable claim for relief under 42 U.S.C. § 1983. See Owen v. Lash, 682 F.2d 648, 652-53 (7th Cir. 1982); Bolding v. Holshouser, 575 F.2d 461, 464-65 (4th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed.2d 133 (1978). Moreover, since the correspondence at issue in this case was allegedly legal in nature, Woods also has an actionable claim for violation of his right of access to the courts. See Crowder v. Lash, 687 F.2d 996, 1004 (7th Cir. 1982).

Motion To Dismiss Mail-Related Claims

Defendants present two arguments in support of their motion to dismiss Woods' claim concerning the alleged loss or mishandling of his mail. They first contend that the allegations of the amended complaint, when read in light of the exhibits attached to it, evidence negligence rather than any intentional or deliberate failure on the part of prison officials to deliver mail to Woods. Citing, inter alia, this Court's opinion in Hamrick v. Lewis, 515 F. Supp. 983 (N.D.Ill. 1981), defendants assert that plaintiff must show more than mere negligence in order to state a claim of constitutional magnitude.

Defendants' state-of-mind argument fails in two respects. First, Hamrick and the other cases relied upon by defendants predate Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the Supreme Court apparently rejected the notion that a claim based on merely negligent conduct could never be brought under § 1983. Id. at 534-35, 101 S.Ct. at 1912. Second, and more important here, Woods specifically alleges that Aldworth and the other defendants "deliberately" failed to deliver legal documents to him. Amended Complaint, ¶¶ 18 and 28. For purposes of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept this allegation as true. Estelle v. Gamble, 429 U.S. 97, 99, 97 S.Ct. 285, 288, 50 L.Ed.2d 251 (1976).

Defendants' second argument in support of their motion to dismiss Woods' mail-related claims is likewise based on a misreading of the complaint. Defendants contend that Woods does not state a claim for denial of access to the courts because he fails to allege any prejudice to his legal activities as a result of his alleged failure to receive certain pieces of legal correspondence. Contrary to defendants' contention, Woods alleges that they infringed his right to pursue his criminal appeal by withholding relevant legal documents. Amended Complaint, ¶ 26. Elaborating in his response to defendants' motion, Woods explains that one of the missing letters contained a brief from the state opposing his petition for a writ of certiorari before the United States Supreme Court. He asserts that his failure to receive the brief prohibited him from responding and that the Supreme Court dismissed his petition as a result. Thus, assuming arguendo that prejudice is a necessary element of Woods' claim of denial of access to the courts, the allegations of the amended complaint are sufficient to withstand a motion to dismiss.

Allen raises a separate ground for dismissal of the amended complaint as against him. Woods does not claim that Allen personally interfered with his mail. Rather, he asserts that Allen denied him his statutory right to a grievance procedure by failing to investigate his complaint about the problems with the delivery of his mail. Allen maintains that this is insufficient to state a claim for relief because Woods has no constitutional right to a grievance procedure.

In Azeez v. DeRobertis, 81 C 7163 (N.D.Ill. Nov. 2, 1982), Judge John Nordberg held that Illinois prisoners had no constitutionally enforceable right to a hearing on grievances presented to prison officials in accordance with the statutorily mandated prison grievance procedure. But this Court need not address that issue here. The preprinted form that Allen used to respond to Woods' grievance invites the grievant to resubmit his grievance if the condition for denial of the grievance reverses. Amended Complaint, Exhibit D. Although Woods apparently disputed Allen's finding that his complaint about mail delivery had been independently resolved, he does not allege that he made any attempt to reopen his grievance. Because Woods at all times maintained the right to resubmit his complaint, he cannot complain that Allen deprived him of a right to a hearing on his grievance.

Accordingly, the motion to dismiss is granted as to Allen and denied in all other respects. The Court now turns to ...

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