WILLIAMS v. RUSSO et al
Filing
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ORDER denying 21 Motion to Dismiss. The Stay on Discovery is HEREBY LIFTED, and discovery commences the day of this Order. The parties are directed to resubmit a proposed scheduling/discovery order within seven (7) days of this Order. Ordered by U.S. District Judge C ASHLEY ROYAL on 1/14/15 (lap)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARIO WILLIAMS,
:
:
Plaintiff,
:
:
v.
:
:
No. 5:14‐cv‐287 (CAR)
ANDREW RUSSO,
:
CARL HUMPHREY,
:
JUNE BISHOP,
:
JAMES MCMILLIAN.
:
:
Defendants.
:
_________________________________________ :
ORDER ON MOTION TO DISMISS
Plaintiff Mario Williams filed this 28 U.S.C. § 1983 action against Andrew Russo,
Carl Humphrey, June Bishop, and John McMillian (collectively “Defendants”), seeking
damages for the violation of his Fourth Amendment and Fourteenth Amendment
rights.1 Plaintiff, a practicing attorney, alleges that Officer Russo violated his privacy
rights under the Fourth Amendment by opening, reading, and taking a letter addressed
to him from his prisoner client and that Humphrey, Bishop, and McMillian are liable as
Because Plaintiff has not alleged any facts in his Amended Complaint that would give rise to a
due process claim, the Court construes Plaintiff’s invocation of the Fourteenth Amendment as a
vehicle for which to apply the Fourth Amendment to the Defendants. Am. Fedʹn of State, Cnty. &
Mun. Employees Council 79 v. Scott, 717 F.3d 851, 866 (11th Cir. 2013) (The Fourth Amendment is
“applie[d] to the states through the Due Process Clause of the Fourteenth Amendment.”).
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supervisors. Currently before the Court is Defendants’ Motion to Dismiss. Upon
review of the applicable law, the Amended Complaint, and this Motion and responses
thereto, the Court cannot find at this early stage of the proceedings that Plaintiff was
not deprived of a constitutional right. Accordingly, and for the reasons stated below,
the Motion to Dismiss [Docs. 21] is DENIED.
LEGAL STANDARD
On a motion to dismiss, the Court must accept as true all well‐pleaded facts in a
plaintiff’s complaint.2 To avoid dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), “a complaint must contain specific factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”3 A claim is plausible where the plaintiff
alleges factual content that “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”4 The plausibility standard requires that
a plaintiff allege sufficient facts “to raise a reasonable expectation that discovery will
reveal evidence” that supports a plaintiff’s claims.5
BACKGROUND
For purposes of this Motion, the Court accepts all factual allegations in Plaintiff’s
Amended Complaint as true and construes them in the light most favorable to Plaintiff.
Sinaltrainal v. Coca‐Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
4 Id.
5 Bell Atlantic Corp., 550 U.S. at 556.
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Plaintiff alleges that between August 8 and 11, 2012, Officer Russo entered his
client’s cell at the Special Management Unit at the Georgia Diagnostic and Classification
Prison (“GDCP”) and opened, read, and took letters that his client addressed to Plaintiff
and clearly marked “legal mail” and “attorney/client privileged” on the outside of the
envelopes.6 The letters were taken out of the cell and have not been returned to
Plaintiff’s client.
During a meeting between Plaintiff and his client on August 8, Plaintiff’s client
showed Plaintiff an opened envelope and told him that the mail had been opened, read,
and removed. On August 17, 2012, Plaintiff sought an arrest warrant for Officer Russo,
and the Superior Court of Butts County held a probable cause hearing; however, no
warrant was issued.7
On August 1, 2014, Plaintiff filed his Complaint with this Court. Plaintiff
contends that by reading and taking attorney/client privileged mail addressed to him,
Defendants have violated his Fourth Amendment rights. Moreover, Plaintiff alleges
that Warden Carl Humphrey, Deputy Warden June Bishop, and Unit Manager James
McMillian “ordered Defendant Russo to open and read and take” the mail from
Plaintiff’s Amended Complaint, Doc. 7 at ¶ 12. Plaintiff has submitted copies of the two
marked envelopes with his Amended Compliant, Doc. 7‐1 at 6, 8.
7 Pl. Amend. Comp., Doc. 7 at ¶ 3; Def. Mtn. to Dismiss Doc. 21‐1 at 3.
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Plaintiff’s client’s cell and condoned Russo’s actions by not returning the mail to
Plaintiff’s client.8
Defendant has filed this Motion to Dismiss contending that Plaintiff has failed to
allege a Fourth Amendment violation, and that Defendants are entitled to qualified
immunity.9 However, because Plaintiff has sufficiently alleged facts to support that he
possessed a valid privacy and possessory interest in mail addressed to him, the Court
cannot, at this early stage in the proceedings, dismiss Plaintiff’s claim as a matter of law.
DISCUSSION
Under 42 U.S.C. § 1983, a plaintiff can bring a private cause of action against
those who, under color of law, deprive a citizen of the United States of “any rights,
privileges, or immunities secured by the Constitution and laws.”10 A plaintiff can bring
a § 1983 claim against a governmental entity or a person in his individual or official
capacity. 11 Here, Plaintiff brings claims against Defendants in their individual
capacities for their alleged violation of his Fourth Amendment rights to be free from
unlawful search and seizure of mail addressed to him and marked as attorney‐client
privileged. The Fourth Amendment protects “[t]he right of people to be secure in their
Pl. Amend. Comp., Doc. 7 at ¶ 4, 5, 6, 7.
Defendants argue that Plaintiff is estopped from bringing this claim because the claims were
already addressed in the state probable cause hearing. The Court, however, is unconvinced that
a probable cause hearing would estop Plaintiff from bringing a civil action against Defendants.
Furthermore, the Court finds that service has been properly perfected and thus agrees that
Defendants’ arguments regarding service are now MOOT.
10 42 U.S.C. § 1983.
11 Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991).
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persons, houses, papers, and effects, against unreasonable searches and seizures.”12 A
seizure occurs when there is some “interference with an individual’s possessory
interests.”13 An improper search occurs under the Fourth Amendment, “when the
government violates a subjective expectation of privacy that society recognizes as
reasonable.”14 Generally, an expectation is reasonable if it is one that “society is
prepared to recognize as ‘reasonable.’”15 Moreover, whether an individual has a
protected privacy interest depends on the “totality of the circumstances.”16
It is a general rule that mail is subject to Fourth Amendment protection and both
senders and addressees of packages or other closed containers can reasonably expect
that the government will not open them.17 Moreover, the courts have long recognized
that an addressee has “both a possessory and a privacy interest in a mailed package.”18
In this case, the alleged violation took place in a prison cell. The Supreme Court
has concluded that “the Fourth Amendment’s proscription against unreasonable
searches does not apply within the confines of the prison cell.”19 However, censorship
U.S. Const. Amend IV.
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
14 Kyllo v. United States, 533 U.S. 27, 33 (2001).
15 Katz v. United Sates, 389 U.S. 347, 361 (1967 (Harlan, J., concurring).
16 U.S. v. McKennon, 814 F.2d 1539, 1544 (1987).
17 See Jacobsen, 466 U.S. at 114 (public has legitimate expectation of privacy in letters and sealed
packages in the mail, and warrantless searches of these items are presumptively unreasonable).
18 United States v. Hernandez, 313 F.3d 1206, 1209 (9th Cir. 2002); See also United States v. Phillips,
478 F.2d 743, 748 (5th Cir. 1973); United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992);
United States v. Van Leeuwen, 397 U.S. 249, 251 (1970); Ex Parte Jackson, 96 U.S. 727 (1878).
19 Ford v. Hunter, 534 F. Appʹx 821, 825‐26 (11th Cir. 2013) (quoting Hudson v. Palmer, 468 U.S.
517, 526 (1984)).
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of an inmateʹs attorney‐client privileged mail is only justified if it is reasonably related
to a legitimate penological interest.20 Although the Supreme Court has upheld prison
regulations that allow prison officials to open and inspect an inmates’ “legal mail,”
prison officials may not read such mail.21
In order to determine if Plaintiff has alleged a valid constitutional violation, the
Court must first consider whether Plaintiff has a protectable Fourth Amendment
interest in the letters addressed to him. Therefore, this case presents two issues for the
Court: (1) whether the alleged letters were considered mailed, thus implicating
Plaintiff’s Fourth Amendment privacy and possessory interests as an addressee, and (2)
whether Plaintiff as an attorney has a privacy right in attorney/client privileged mail
addressed to him. Because the Court finds that Plaintiff has sufficiently alleged facts to
support a protectable Fourth Amendment privacy and possessory interest as an
addressee, the Court need not analyze the second issue at this time.
Plaintiff alleges his client addressed two letters to Plaintiff that were clearly
marked as “legal mail” and “attorney/client privileged.”22 Plaintiff claims that Officer
Russo on at least “two separate occasions open[ed], read, and took (without returning)”
the letters.23 In a description attached to the Amended Complaint, Plaintiff’s client
Perry v. Secʹy, Florida Depʹt of Corr., 664 F.3d 1359, 1364 (11th Cir. 2011).
Wolff v. McDonnell, 418 U.S. 539, 577 (1974).
22 Pl. Amend. Comp., Doc. 7‐1 at 6, 8.
23 Pl. Amend. Comp., Doc. 7 at ¶ 5.
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describes one of the incidents, stating that Officer Russo entered his cell, took “his
sealed legal mail out of his hand,”24 and read the letter addressed to Plaintiff.
The Court recognizes that the prison mail system functions according to its own
standards, and although the Plaintiff does not specify the procedures and regulations of
the GDCP’s mail system, a letter is generally considered mailed when it is given to a
prison official.25 Plaintiff describes the letters as “mail,” and taking as true that Officer
Russo took the letters from Plaintiff’s client, Plaintiff has sufficiently alleged that the
letters were mailed. Thus, reading the facts in Plaintiff’s favor, Plaintiff has a
protectable Fourth Amendment interest as an addressee.26
Defendants argue that they are shielded by qualified immunity. Qualified
immunity protects government officials sued in their individual capacities; however,
qualified immunity can be “defeated if an official knew or reasonably should have
known that the action he took within his sphere of official responsibility would violate
the constitutional rights of the plaintiff.”27 “The purpose of this immunity is to allow
government officials to carry out their discretionary duties without the fear of personal
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Pl. Amend. Comp., Doc. 7‐1 at 6, 8.
Houston v. Lack, 487 U.S. 266, 271 (1988) (findings that prisoners appeals are mailed when
they are handed to prison officials); Garvey v. Vaughn, 993 F.2d 776, 781 (11th Cir. 1993)
(agreeing with Houston and noting that prisoners in mailing documents are at a disadvantage in
ensuring their documents are mailed).
The courts have noted that a privacy right under the Fourth Amendment exists in letters and
packages that have been posted in the mail. See e.g., Jacobsen, 466 U.S. at 114; Van Leeuwen, 397
U.S. at 251; Ex Parte Jackson, 96 U.S. at 727; Hernandez, 313 F.3d at 1209; Phillips, 478 F.2d at 748;
United States v. Villarreal, 963 F.2d at 774.
27 Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (quotation, emphasis, and brackets omitted); see
also Lee v. Ferraro, 284 F.3d 1188, 1193‐94 (11th Cir. 2002).
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liability or harassing litigation.”28 Thus, where a public official was acting within the
scope of his discretionary authority at the time of an alleged wrongful act, the plaintiff
has the burden of showing that the defense of qualified immunity is not appropriate.29
In determining whether an official is protected by qualified immunity, the
official must first show that he was acting within the scope of his discretionary
authority at the time of the alleged constitutional violation. Second, a court must
determine whether the facts alleged show that the officer’s conduct violated a
constitutional right.30 Finally, “[i]f a constitutional right would have been violated
under the plaintiff’s version of the facts, the court must then determine ‘whether the
right was clearly established’” at the time of the alleged violation. 31
Defendants cannot show that they are protected by qualified immunity.
Plaintiffs do not dispute that Defendants were acting in their discretionary capacity,
and the Court has already found that an addressee has a privacy and possessory
interest in letters mailed to him, and that the government may not take and read letters
that have been mailed without violating an addressee’s Fourth Amendment rights.
Thus, the only issue is whether the right was clearly established. The Court finds for
Ferraro, 284 F.3d at 1194.
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002).
30 Ferraro, 284 F.3d at 1194 (quoting Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001)).
31 Id.
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the reasons above that it is.32 Therefore, if the officers took the mail and read the mail as
Plaintiff alleges, it is clearly established that Plaintiff’s Fourth Amendment rights were
implicated. Therefore, the Court cannot find that Defendants are protected by qualified
immunity at this time.
CONCLUSION
Based on the foregoing, Defendants’ Motion to Dismiss [Doc. 21] is DENIED.
Additionally, the Stay on Discovery is HEREBY LIFTED, and discovery commences the
day of this Order. The parties are further directed to resubmit a proposed
scheduling/discovery order within seven (7) days of this Order.
SO ORDERED, this 14th day of January, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL,
UNITED STATES DISTRICT JUDGE
JRF/ssh
See e.g., Jacobsen, 466 U.S. at 114; Van Leeuwen, 397 U.S. at 251; Ex Parte Jackson, 96 U.S. at 727;
Hernandez, 313 F.3d at 1209; Phillips, 478 F.2d at 748; United States v. Villarreal, 963 F.2d at 774.
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