The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
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address is no longer active.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
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 ...