Berger v. Outlaw et al

Filing 18

OPINION AND ORDER adopting 11 Partial Report and Recommendations as stated herein; therefore, Berger's first four claims are dismissed for failure to state a claim. Signed by Chief Judge J. Leon Holmes on 11/1/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RUSSELL BERGER,
ADC #115855
v.

PLAINTIFF

No. 5:11CV00171 JLH-JTK

STEVE OUTLAW, Deputy Warden,
Maximum Security Unit, Arkansas Department
of Correction, et al.

DEFENDANTS

OPINION AND ORDER
Russell Berger is an inmate in the Maximum Security Unit of the Arkansas Department of
Correction. He has filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the Director of the
Arkansas Department of Correction, two Deputy Directors, one unknown Assistant Director, and
the Deputy Warden of the Maximum Security Unit, alleging five distinct and apparently unrelated
claims.

Berger has stated that he is withdrawing his fourth claim.

The magistrate judge

recommended that Berger’s first three claims be dismissed but ordered that summons be issued and
served as to the fifth claim. Berger objects to the recommendation that the first three claims be
dismissed. Upon de novo review, the partial recommended disposition is adopted with the following
explanation. Document #11.
The Court must dismiss a complaint if the prisoner has raised claims that are frivolous or
malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b). An action is frivolous if “it
lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct.
1827, 1831-32, 104 L. Ed. 2d 338 (1989). A complaint fails to state a claim upon which relief can
be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007).

In determining whether a complaint fails to state a claim upon which relief may be granted, the
Court must accept as true all the factual allegations in the complaint. Erickson v. Pardus, 551 U.S.
89, 94, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007). A pro se complaint must be liberally
construed—however inartfully worded—and “held to less stringent standards than formal pleadings
drafted by lawyers.” Id. (quotation omitted).
Berger’s first claim is that he presented two envelopes of “legal mail” to Sergeant
S. Mathews so that she could examine the contents for contraband and sign the flap for him to seal
and place in the outgoing mailbox, but instead she removed the contents and read both of the letters
and the exhibits in both envelopes. One envelope was addressed to the Arkansas Claims
Commission, and the other was addressed to the ADC Staff Attorney Jeanne Richards. Mathews
stated that she did not know whether those were legal mail, and then called her supervisor and read
both letters again while on the telephone. After she hung up the telephone, she then signed the flap
and allowed the two letters to be mailed. The magistrate judge recommended that this claim be
dismissed for failure to state a claim upon which relief can be granted because Berger does not
allege that his access to the courts was impeded. Berger contends, however, that his First
Amendment rights were violated when Sergeant S. Mathews read his outgoing “legal mail.”
Berger is mistaken insofar as he characterizes the two letters as “legal mail” that may not be
read by prison officials before being placed in the mail. “Privileged prisoner mail, that is mail to
or from an inmate’s attorney and identified as such, may not be opened for inspections for
contraband except in the presence of the prisoner.” Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir.
1981) (citing Wolff v. McDonnell, 418 U.S. 539, 576-77, 94 S. Ct. 2963, 2984-85, 41 L. Ed. 2d 935
(1974)). Berger does not allege that the letters that Sergeant S. Mathews read were letters to his
attorney; rather, he alleges that one was a letter to the Arkansas Claims Commission and the other
2

a letter to an ADC staff attorney. Those were not privileged communications, so the fact that
Mathews read them does not violate Berger’s constitutional right. Id.; Smith v. Canu, 2009 WL
2424571, *5 (E.D. Cal. Aug. 6, 2009) (“Legal mail is narrowly defined as mail between a prisoner
and his attorney.”). Furthermore, a single instance of opening confidential mail without evidence
of an improper motive or interference with the inmate’s right to counsel or access to the courts does
not give rise to a constitutional violation. Norman v. McConnich, 2010 WL 545936 (E.D. Ark.
Feb. 10, 2010) (citing Gardner v. Howard, 109 F.3d 427, 430-31 (8th Cir. 1997)). Therefore,
Berger’s first claim fails to state a claim and must be dismissed.
Berger’s second claim is that he was denied equal protection in the winter of 2010-11
because he was not provided with thermal underwear when other inmates were. He was told that
the institution did not have the size that he needed, and the size he needed had been ordered. In
February, he was called to the laundry and issued thermal underwear. The magistrate judge
recommended that this claim be dismissed because Berger did not allege that he was treated
differently from similarly situated inmates, citing City of Cleburne Tex. v. Cleburne Living Ctr., 473
U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). Berger does not allege that he was
treated differently because of his race, sex, or religion; nor does he allege that he was subjected to
invidious discrimination based upon any improper classification. His only allegation as to the
reason why he did not receive thermal underwear (other than that his size was not in stock) is an
allegation that he believes that he was denied thermal underwear in retaliation for a lawsuit that
settled in 2009. The Court takes judicial notice of the fact that Berger settled a case styled Berger
v. Bell, E.D. Ark., No. 2:08CV00057-JMM, in 2009. The correctional officer whom he blames for
failing to order his thermal underwear, however, was not a party to that action, so there is no factual
basis for the conclusory allegation that he was denied thermal underwear in retaliation for settling
3

that lawsuit.
Berger’s third claim is that the policy of the Arkansas Department of Correction in limiting
inmates to five personal photographs is unconstitutional. The magistrate judge recommended
dismissing that claim based on the decision of the Eighth Circuit in Davis v. Norris, 86 Fed. Appx.
220 (8th Cir. 2004), affirming a decision from this Court holding that the policy of the Arkansas
Department of Correction limiting inmates to five personal photographs does not violate an inmate’s
First Amendment rights. This Court has also upheld a policy of the Pulaski County Detention
Center limiting inmates to three personal photographs. Gates v. Holladay, 2010 WL 2773254 (E.D.
Ark. July 9, 2010); see also Jones v. Holladay, 2010 WL 1052912 (E.D. Ark. Mar. 5, 2010)
(upholding a new rule of the Pulaski County Detention Center prohibiting receipt of personal
photographs in the mail). Although Berger alleges that the policy also violates the Fifth Amendment
and the equal protection clause of the Fourteenth Amendment, the effect of the decision in Davis v.
Norris is to conclude that the policy of the Arkansas Department of Correction serves a legitimate
penological objective, so Berger could not prevail regardless of which constitutional provision he
cites in support of his argument that the policy is unconstitutional.
For the reasons stated, Berger’s first four claims are dismissed for failure to state a claim.
The magistrate judge has already ordered service of the defendants with respect to Berger’s fifth
claim, and the docket reflects that the summons has been issued and those defendants have been
served. Therefore, the Court will not address the fifth claim for relief.
IT IS SO ORDERED this 1st day of November, 2011.

_________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

4