The opinion of the court was delivered by: 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.
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 April of 2001 he
was seeking pro bono legal assistance in his case and during the period
he mailed and received
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 their 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 settle 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
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.
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. v. 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." Id. 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
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).
The United States Supreme Court "has recognized that prisoners have
protected First Amendment interests in both sending and receiving mail
. . . [and that] [p]rison 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 (7th 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. McDonnell 418 U.S. 539, 577 (1974). An inmate's right to free
speech and free
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 (7th Cir. 1996).
I. Individual Capacity Claims
In regards to the individual capacity claims against Defendants Michael
Sheahan ("Sheahan") and Ernesto 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 (7th 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," Id. In this case Jones has not shown that
Sheahan or Velsasco. ...