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MAY v. GARNETT
August 19, 2005.
WILLIAM M. MAY, Inmate #B06053, Plaintiff,
JASON C. GARNETT, SCOTT DEMPSEY, and UNKNOWN MAILROOM EMPLOYEES, Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
Plaintiff, a former inmate in the Lawrence Correctional Center,
brings this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted
leave to proceed in forma pauperis, and he has tendered his
initial partial filing fee as ordered.
This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319
, 325 (1989). Upon
careful review of the complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under §
1915A; this action is legally frivolous and thus subject to
Plaintiff states that there is excessive delay in sending and
receiving mail at Lawrence Correctional Center. Plaintiff states
that it takes two to three weeks for his wife to receive a letter
he wrote. He states that he received a letter on November 9,
2004, that was postmarked October 3, 2004. Plaintiff also states
that his wife sent him some books that were received in the mail
room on July 22, 2004. When Plaintiff had not received them and
asked about them, he was told they were lost. Plaintiff states
that the excessive delays in mail result in mental cruelty, pain,
Claims regarding prisoners receiving mail are analyzed under
the First Amendment.
The free-speech clause of the First Amendment has
been held to have some application to communications
with and among prison inmates, especially (though not
only) where, as in the present case, one party to the
communication is not an inmate. See Turner v.
Safley, 482 U.S. 78, 107 S.Ct. 2254, 2260,
96 L.Ed.2d 64 (1987); Procunier v. Martinez,
416 U.S. 396, 408, 94 S.Ct. 1800, 1809, 40 L.Ed.2d 224 (1974);
see generally Ustrak v. Fairman, 781 F.2d 573,
577-78 (7th Cir. 1986). But in recognition of the
acute security problems of modern American prisons,
the courts have upheld restrictions on such
communications that would be intolerable if both
sender and recipient were free persons. See, e.g.,
Turner v. Safley, supra, 107 S.Ct. at 2263-64;
Gaines v. Lane, 790 F.2d 1299 (7th Cir. 1986);
Ustrak v. Fairman, supra, 781 F.2d at 580; Smith
v. Shimp, 562 F.2d 423 (7th Cir. 1977).
Martin v. Brewer, 830 F.2d 76
, 77-78 (7th Cir. 1987).
However, the Seventh Circuit has held that allegations of
sporadic and short-term delays in receiving mail are not enough
to state a violation of the First Amendment. See Zimmerman v.
Tribble, 226 F.3d 568
, 573 (7th Cir. 2000); see also Rowe
v. Shake, 196 F.3d 778
, 782 (7th Cir. 1999). Based on these
standards, Plaintiff's allegations of delay in receiving mail are
not sufficient to state a constitutional claim.
In summary, Plaintiff's complaint does not survive review under
§ 1915A. Accordingly, this action is DISMISSED with prejudice. Plaintiff is advised that
the dismissal of this action will count as one of his three
allotted "strikes" under the provisions of 28 U.S.C. § 1915(g).
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