Morgan v. Doe et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 4/13/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERYME MORGAN, # R-29175,
Plaintiff,
vs.
JOHN DOE (Mailroom Supervisor),
JANE DOE (Mailroom Supervisor),
and JACQUELINE LASHBROOK,
Defendants.

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Case No. 18-cv-430-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Jeryme Morgan, currently incarcerated at Menard Correctional Center
(“Menard”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff
claims that the John Doe/Jane Doe mailroom supervisors have intentionally opened his incoming
legal mail on numerous occasions. The Complaint is now before the Court for a preliminary
review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d

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1025, 1026-27 (7th Cir. 2000).
An action 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 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its face
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Although the Court is obligated to accept factual allegations as true, see Smith v. Peters,
631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible
that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of
the elements of a cause of action or conclusory legal statements.” Id. At the same time,
however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d
816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
According to the Complaint, Plaintiff was transferred to Menard in November 2014 from
Stateville Correctional Center. (Doc. 1, p. 6). At the time, Plaintiff had several pending lawsuits
in this Court against Menard officials. Id. In connection with those lawsuits, Plaintiff alleges

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that he received legal mail from the Illinois Attorney General and from his own attorney. He
also received mail from the Illinois Court of Claims with reference to a pending case.
Plaintiff alleges that on approximately 22 occasions between November 2014 and March
20, 2017, his “legal mail” was knowingly opened outside his presence by “all Defendants listed.”
(Doc. 1, p. 6). He further alleges that during that time frame, all Defendants “knowingly
interfered” with correspondence between Plaintiff and his attorney, by opening or ripping his
legal mail, some of which was lost. Id.
After filing his Complaint, Plaintiff submitted 47 pages of Exhibits. (Doc. 3). They
include approximately 14 grievances filed between January 2015 and March 2017 in which
Plaintiff complains about his incoming mail having been opened before he received it. He also
submitted copies of approximately 20 of the opened envelopes. These include mail addressed to
Plaintiff from attorney Barry Lewis (Doc. 3, p. 7), the law firm of Loevy & Loevy (Doc. 3, pp. 910, 28), the Cook County Public Defender (Doc. 3, p. 22), and the John Marshall Law School
(Doc. 3, p. 47). Other incoming mail that was opened before being delivered to Plaintiff came
from the Illinois Attorney General (Doc. 3, pp. 14-15, 18-19, 37-39, 43), the New York Attorney
General (Doc. 3, pp. 13, 17, 35, 44), and the Illinois Court of Claims (Doc. 3, pp. 41, 45).
One of Plaintiff’s grievances states that in October 2015, he sent an envelope to Attorney
General Lisa Madigan on which he clearly printed “Legal Mail.” (Doc. 3, pp. 25-27). The
envelope was returned to Plaintiff due to some error on the address, and had been opened before
he received it back.
Plaintiff seeks compensatory and punitive damages. (Doc. 1, p. 7).

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Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Defendants violated Plaintiff’s First Amendment right to access the
courts by opening correspondence between Plaintiff and his attorneys outside his
presence;
Count 2: Defendants violated Plaintiff’s First Amendment rights by opening
Plaintiff’s incoming mail from attorneys, state officials, and the courts, and
discarding or losing some of the contents.
Count 1 shall be dismissed without prejudice for failure to state a claim upon which relief
may be granted. The portion of Count 2 based on the failure to deliver the contents of some
incoming envelopes shall proceed for further review.
Dismissal of Count 1 –Correspondence from Law Firms & Access to Courts
Plaintiff lumps together all the correspondence received from various senders to argue
that his constitutional rights were violated when mailroom personnel opened what he describes
as “legal mail” outside his presence. However, an inmate’s right to have certain mail opened
only in his presence applies only to correspondence between the inmate and an attorney who
either is representing him, or from whom the inmate is seeking legal representation.

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Kaufman v. McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005). The envelope must be clearly
marked as containing privileged attorney-client correspondence in order to receive the special
treatment of being opened only in the presence of the inmate-recipient. See Wolff v. McDonnell,

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418 U.S. 539, 576–77 (1974); Guajardo-Palma v. Martinson, 622 F.3d 801, 804 (7th Cir. 2010).
Some of Plaintiff’s incoming mail may have been attorney-client “legal mail,” but only one of
the envelopes included as exhibits was properly marked as such.
Mail from the Attorney General of Illinois does not fall into the category of legal mail
between an inmate and his lawyer, because the Attorney General’s office would be representing
the defendants in Plaintiff’s lawsuits, not Plaintiff. Plaintiff does not allege that the New York
Attorney General was representing him in any litigation. As such, correspondence from these
sources could be opened and inspected outside Plaintiff’s presence without violating his
constitutional rights.
Additionally, mail from the Illinois Court of Claims, where Plaintiff had a pending case,
does not qualify as privileged legal mail.
[W]ith minute and irrelevant exceptions all correspondence from a court to a
litigant is a public document, which prison personnel could if they want inspect in
the court’s files. It is therefore not apparent to us why it should be regarded as
privileged and how [the plaintiff] could be hurt if the defendant read these
documents before or after [the plaintiff] does.
Martin v. Brewer, 830 F.2d 76, 78 (7th Cir. 1987); see also Antonelli v. Sheahan, 81 F.3d 1422,
1431 (7th Cir. 1996). Under this authority, a prisoner’s rights are not violated when official
court mail is opened outside his presence. See Stone-El v. Fairman, 785 F. Supp. 711, 715-16
(N.D. Ill. 1991) (applying the rationale of Martin to incoming mail from court clerks).
Accordingly, in addressing Count 1, the Court will consider only whether the opening of
Plaintiff’s correspondence with the attorneys who either represented him, or may have been
responding to Plaintiff’s requests for representation, 1 violated his rights.
Under the First Amendment, prisoners have the right to send and receive mail. Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999). Nevertheless:
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Plaintiff never discloses the nature of his correspondence with these attorneys or law firms.

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that right does not preclude prison officials from examining mail to ensure that it
does not contain contraband, Wolff v. McDonnell, 418 U.S. 539, 576, 94 S. Ct.
2963, 41 L.Ed.2d 935 (1974); Rowe, 196 F.3d at 782. An inmate’s legal mail,
however, is entitled to greater protections because of the potential for interference
with his right of access to the courts. Rowe, 196 F.3d at 782. Thus, when a
prison receives a letter for an inmate that is marked with an attorney’s name and a
warning that the letter is legal mail, officials potentially violate the inmate’s
rights if they open the letter outside of the inmate's presence. See Wolff, 418 U.S.
at 577, 94 S. Ct. 2963; Castillo v. Cook County Mail Room Dep’t, 990 F.2d 304,
305-06 (7th Cir. 1993).
Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005) (emphasis added). See also
Guajardo-Palma v. Martinson, 622 F.3d 801, 804 (7th Cir. 2010). Notably, “isolated incidents
of interference with legal mail” may not state a constitutional violation without a showing of “a
systematic pattern or practice of interference,” see Bruscino v. Carlson, 654 F. Supp. 609, 618
(S.D. Ill. 1987), aff'd, 854 F.2d 162 (7th Cir. 1988). See also Bryant v. Winston, 750 F. Supp.
733 (E.D. Va. 1990) (the inadvertent or negligent opening of an occasional legal letter is not
actionable).
As discussed in Wolff, Kaufman, and Bruscino, in order for privileged attorney-client
correspondence to receive the special treatment of being opened only in the inmate’s presence,
the envelope must be clearly marked by the sender with a warning that the letter is “legal mail,”
“privileged legal correspondence,” or some similar notice that draws attention to its confidential
nature. The mere fact that an envelope bears the return address of a law office is not sufficient to
alert prison officials that the contents are privileged and should be opened only in the presence of
the inmate-recipient.

Not every letter from a law office necessarily represents privileged

attorney-client communications. See Guajardo-Palma, 622 F.3d at 805-06; Kaufman, 419 F.3d
at 686.
In several of his grievances, Plaintiff asserts that his incoming envelope(s) were “clearly
marked legal mail.” (Doc. 3, pp. 20, 23). However, none of the incoming envelopes from
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attorneys were marked in accordance with the directives in Wolff, Kaufman, or Bruscino. For
example, the letter that prompted Plaintiff to write his January 5, 2015 grievance (and the
duplicate grievance dated May 30, 2015) bore the return address of the Cook County Public
Defender, dated December 2014. (Doc. 3, p. 22). It did not, however, include any warning that
it was legal or privileged mail. The same is true of the envelopes addressed to Plaintiff from
Lewis, Loevy & Loevy, and the John Marshall Law School. In fact, 4 of the 6 envelopes from
lawyers or law firms were stamped at the prison mailroom with the notice:
This correspondence was not clearly marked as “LEGAL” or “PRIVILEGED”
therefore it was opened in the mailroom. Please notify sender so mail can be
marked accordingly.
(Doc. 3, pp. 7, 9-10, 47).
If an attorney fails to mark correspondence sent to an inmate with the warning that it is
privileged or legal mail, a prison official will not be held liable for opening such correspondence
outside the inmate’s presence. This is the situation with all of Plaintiff’s incoming mail from
attorneys.
The only instance where a legal letter was opened despite the clearly printed warning that
it contained “Legal Mail” was Plaintiff’s outgoing envelope to the Illinois Attorney General,
postmarked October 26, 2015. (Doc. 3, p. 27). He explains that the envelope contained a
document that “was the substance of a complaint that’s missing.” (Doc. 3, p. 25). By all
appearances, this represented Plaintiff’s communication with the attorney for an adverse party in
one of his pending lawsuits. While the opening of this letter may have run afoul of prison rules,
the Court cannot discern how the opening of the envelope would have impaired Plaintiff’s ability
to engage in privileged communication with his own attorney, or how it would have prejudiced
his ability to pursue a lawsuit. See Guajardo-Palma v. Martinson, 622 F.3d 801, 806 (7th Cir.

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2010) (harmless-error analysis applies to opening of inmates’ communications with lawyers).
In order to maintain a claim for denial of access to the courts based on the improper
opening of, or interference with attorney-client correspondence, a plaintiff must demonstrate
some hindrance to his ability to prosecute a meritorious legal claim. No constitutional claim is
stated unless the element of prejudice is met.

See Guajardo-Palma, 622 F.3d at 805-06

(“whether the unjustified opening of [attorney mail] is a violation of the right of access to the
courts or merely, as intimated in Kaufman and held in Gardner, a potential violation .... we think
[as with claims challenging the adequacy of a prison's library or legal assistance program] there
must b[e] a showing of a hindrance”) (citing Gardner v. Howard, 109 F.3d 427, 430-31 (8th
Cir.1997)); Kaufman, 419 F.3d at 686 (prisoner “offered no evidence that his ability to litigate
any matter” was affected by the opening of mail from attorneys).
To summarize, the opening outside Plaintiff’s presence of attorney mail that was not
marked as “legal mail” or “privileged mail” did not violate the First Amendment. Further,
Plaintiff has made no showing that the opening of any mail from attorneys created any prejudice
or hindrance to his ability to pursue a legal claim or defense. For these reasons, Count 1 fails to
state a claim upon which relief may be granted, and will be dismissed without prejudice.
Count 2 – Interference with Incoming Mail
With respect to general mail communications between an inmate and an outsider, a valid
First Amendment claim requires an allegation that there has been “a continuing pattern or
repeated occurrences” of denial or delay of mail delivery. Zimmerman v. Tribble, 226 F.3d 568,
572 (7th Cir. 2000) (“Allegations of sporadic and short-term delays in receiving mail are
insufficient to state a cause of action grounded upon the First Amendment.” (citing Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999); Sizemore v. Wiliford, 829, F.2d 608, 610 (7th Cir.

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1987))). Here, Plaintiff’s grievances reflect that at least 5 of his incoming pieces of mail were
not only opened, but that the contents were missing when he received the envelopes. On June
29, 2015, Plaintiff received 2 empty envelopes from the Illinois Attorney General. 2 (Doc. 3, pp.
16, 18-19). On July 5, 2015, he received an envelope from the Attorney General of New York,
which was also empty. (Doc. 3, pp. 16-17). Plaintiff filed a grievance on March 17, 2016,
complaining that he received another empty envelope from the New York Attorney General in
February 2016, and had received other envelopes from the Illinois Attorney General and the
Court of Claims with documents missing and/or torn. (Doc. 3, p. 42). In May 2016, a letter to
Plaintiff from his attorney Caroline Hirst (of Loevy & Loevy) was opened, and Plaintiff received
the envelope with all the contents removed. (Doc. 3, pp. 8-9).
These insidents may be considered “repeated occurrences” of the denial of Plaintiff’s
right to receive his mail. See Zimmerman, 226 F.3d at 572. On this basis, Plaintiff’s First
Amendment claim for interference with his mail in Count 2 may proceed. In the absence of any
suggestion that Plaintiff’s constitutional rights were impaired by the mere opening of the
remaining envelopes (none of which were marked as privileged or legal), the claim in Count 2
shall be limited to the instances where the envelopes’ contents were missing or damaged.
Count 2 states a claim against the John Doe and Jane Doe Mailroom Supervisors, who
presumably opened the envelopes and lost or discarded the contents. However, Plaintiff has
failed to include any facts to suggest that Warden Lashbrook personally opened his mail or
mishandled the contents. The doctrine of respondeat superior (supervisory liability) is not
applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)

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In this grievance, Plaintiff describes the opening of his mail as “ongoing retaliation.” (Doc. 3, p. 16).
Notably, he does not articulate a retaliation claim in the Complaint. Therefore, the Court shall not address
the merits of any potential retaliation claim.

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(citations omitted).

Therefore, the claim against Lashbrook in her individual capacity is

dismissed on initial review.
Identification of Unknown Defendants
While Plaintiff will be allowed to proceed with Count 2 against the John Doe and Jane
Doe Defendants, these defendants must be identified with particularity before service of the
Complaint can be made on them. Where a prisoner’s Complaint states specific allegations
describing conduct of individual prison staff members sufficient to raise a constitutional claim,
but the names of those defendants are not known, the prisoner should have the opportunity to
engage in limited discovery to ascertain the identity of those defendants. Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009).
In this case, while no viable claim has been asserted against Warden Lashbrook in her
individual capacity, she shall remain as a Defendant in her official capacity as Menard Warden
only. In that capacity, she will be responsible for responding to discovery aimed at identifying
these unknown defendants. Guidelines for discovery will be set by the United States Magistrate
Judge. Once the names of the John Doe and Jane Doe Defendants are discovered, Plaintiff shall
file a motion to substitute each newly identified defendant in place of the generic designations in
the case caption and throughout the Complaint.
Disposition
COUNT 1 is DISMISSED without prejudice for failure to state a claim upon which
relief may be granted.
All claims against LASHBROOK in her individual capacity are dismissed without
prejudice.
In order for COUNT 2 to proceed, the Clerk of Court shall prepare for Defendant

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LASHBROOK (Official Capacity as Warden of Menard): (1) Form 5 (Notice of a Lawsuit
and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this Memorandum
and Order to Defendant’s place of employment as identified by Plaintiff. If Defendant fails to
sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the
date the forms were sent, the Clerk shall take appropriate steps to effect formal service on
Defendant, and the Court will require Defendant to pay the full costs of formal service, to the
extent authorized by the Federal Rules of Civil Procedure.
If Defendant can no longer be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not known, the
Defendant’s last-known address. This information shall be used only for sending the forms as
directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Service shall not be made on Defendants JOHN DOE and JANE DOE (Mailroom
Supervisors) until such time as Plaintiff has identified them by name in a properly filed motion
for substitution of parties. Plaintiff is ADVISED that it is his responsibility to provide the Court
with the names and service addresses for these individuals.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Reona J. Daly for further pre-trial proceedings, which shall include a plan for
discovery aimed at identifying the unknown defendants with particularity.

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Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: April 13, 2018

s/ STACI M. YANDLE
United States District Judge

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