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March 19, 2004.

KEDRON JONES, JR., Plaintiff,

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 Page 2 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. ยง 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 Page 3

  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 Page 4 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 Page 5 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

  A. Sheahan and Velasco

  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. ...

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