Morgan v. Doe et al
Filing
99
ORDER GRANTING IN PART AND DENYING IN PART 83 MOTION for Summary Judgment filed by Lacy Mezo, Cynthia L. Gimber, Misty New, Frank Lawrence, Brian Miner, Maynard Hudson, Matthew Purdom. Pursuant to Federal Rule of Civil Procedure 56 (f), Plaintiff is notified that summary judgment will be granted in favor of Defendants New, Gimber, Mezo, Purdom, Miner, and Lawrence as to Count 3. Any evidence opposing summary judgment under Rule 56(f) for the reasons provided must be filed by February 12, 2021. Signed by Magistrate Judge Reona J. Daly on 1/13/2021. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JERYME MORGAN,
)
)
Plaintiff,
)
)
v.
)
)
MISTY NEW, CYNTHIA L. GIMBER,
)
MAYNARD HUDSON, LACY MEZO,
)
MATTHEW PURDOM, BRIAN MINER, and )
FRANK LAWRENCE,
)
)
Defendants.
)
Case No.
18-cv-430-RJD
ORDER
DALY, Magistrate Judge:
Plaintiff Jeryme Morgan, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this lawsuit alleging his constitutional rights were violated while he
was incarcerated at Menard Correctional Center (“Menard”). More specifically, Plaintiff alleges
mailroom staff intentionally and routinely opened and discarded his incoming legal mail and
certain staff members did so in retaliation for Plaintiff pursuing litigation against prison staff.
Plaintiff is proceeding on the following claims set forth in his Second Amended Complaint against
Defendants Misty New, Cynthia Gimber, Maynard Hudson, Matthew Purdom, Brian Miner, and
Frank Lawrence (Doc. 55) (as enumerated in the Second Amended Complaint):
Count 2:
Defendants violated Plaintiff’s First Amendment rights by destroying and
failing to deliver Plaintiff’s mail.
Count 3:
Defendants violated Plaintiff’s First Amendment rights by retaliating
against him for filing grievances and lawsuits that challenged the conditions
of his confinement.
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This matter is now before the Court on Defendants’ Motion for Summary Judgment1 (Doc.
83). For the reasons set forth below, Defendants’ Motion is GRANTED IN PART AND
DENIED IN PART.
Factual Background
Plaintiff’s complaint arises from events that occurred while he was incarcerated at Menard
Correctional Center from November 2014 to March 2017. More specifically, from 2015 to 2017,
Plaintiff asserts he received legal mail more than twelve times that had been improperly opened
prior to delivery, in contravention of policy (see Plaintiff’s Deposition, Doc. 85 at 36-77).
By way of background, Menard policy generally requires the mailroom to make decisions
as to whether an item is legal mail (Declaration of Lacy Mezo, Doc. 81-5 at ¶ 2). The mailroom
opens and searches non-legal mail prior to delivery to inmates (Id.). When an item is determined
to be legal mail, policy dictates that it be opened in front of the inmate and both the inmate and the
delivering officer sign a receipt for the legal mail (Id. at ¶ 7). The Illinois Administrative Code
defines “legal mail” as mail to and from: (1) registered attorneys who provide direct legal
representation to offenders; (2) State’s Attorneys; (3) the Illinois Attorney General; (4) Judges or
magistrates of any court or the Illinois Court of Claims Judges; and (5) any organization that
provides direct legal representation to offenders, but not including organizations that provide
referrals to attorneys, such as bar associations. 20 ILCS 525.110(h). According to Sgt. Walter
McGee, an officer at Menard who had responsibilities for mail delivery, he had access to this list
and provision of the Illinois Administrative Code, and could refer to it as necessary in determining
whether mail constituted legal mail (Deposition of Walter McGee, Doc. 94-8 at 15-16).
1
In their motion for summary judgment, Defendants reference three counts they assert are pending in this action.
Defendants are incorrect. The operative complaint is Plaintiff’s Second Amended Complaint filed on June 25, 2019
(Doc. 55). This Complaint sets forth only two claims – designated as Counts 2 and 3. Count 1 was dismissed in the
Court’s threshold order entered on April 13, 2018 (Doc. 6).
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Related to his Complaint, Plaintiff presented evidence that his legal mail was opened
outside of his presence and content was missing on dates on which Defendants New, Gimber,
Miner, Mezo, Purdom, and Lawrence worked in, or supervised, the Menard mailroom (see Doc.
94-2; Doc. 81-4; Doc. 94-3; Doc. 94-4; Doc. 94-6). Although Plaintiff cannot identify the
individual who opened his legal mail, he testified that mail from the law firm Loevy & Loevy was
improperly opened on May 20, 2015, September 8, 2015, and May 27, 2016 (Doc. 85 at 38, 53,
66); mail from the Illinois Attorney General’s Office was improperly opened on June 29, 2015,
August 31, 2015, twice around October 2015, and again on November 6, 2015 (Id. at 41, 51, and
61; Doc. 98 at ¶ 7); mail from the New York Attorney General’s Office was improperly opened on
July 15, 2015 and February 10, 2016 (Id. at 49 and 63); mail from the Illinois Court of Claims was
improperly opened on July 21, 2016 (Id. at 70); mail from the John Marshall Law School was
improperly opened on January 13, 2017 (Id. at 74); and mail from Attorney Barry Lewis on March
10, 2017 (Id. at 77). Plaintiff also asserts that mail from the Court of Claims postmarked February
11, 2016 and mail from the Illinois Attorney General’s Office postmarked March 11, 2016 was
improperly opened; however, it is not clear when these mailings were delivered (Doc. 98 at ¶ 10,
32-33). On many of these occasions, contents from the envelopes were missing (Doc. 85 at 38).
These mailings were also stamped as follows: “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” (see, e.g., Doc. 94-5 at 7). Plaintiff disputes that much of this
mail was not properly marked as legal.
With regard to Defendants and their involvement in opening and otherwise tampering with
Plaintiff’s legal mail, Plaintiff has presented evidence that Defendant Miner was the supervisor in
the mailroom on May 20, 2015 and August 31, 2015, and Plaintiff received improperly opened
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legal mail on these dates (Doc. 94-6; Doc. 94-3 at 13). Defendant Purdom also worked in the
mailroom on May 20, 2015; however, he was not the only employee working in the mailroom on
this date (Id. at 8). Misty New was the supervisor in the mailroom on July 1, 2015, the date on
which a piece of mail from the Attorney General of New York was postmarked (Id. at 12; see Doc.
98 at 15). New was also the mailroom supervisor on May 18 and 19, 2016, and Plaintiff received
opened legal mail from an attorney from Loevy & Loevy on May 27, 2016 (Doc. 94-2 and Doc.
94-3 at 23). Gimber was the mailroom supervisor on October 14, 2015, October 26, 2015, and
November 5, 2015, and Plaintiff received two pieces of opened mail from the Illinois Attorney
General’s Office sometime in October 2015 and again on November 6, 2015 (Doc. 94-10 and Doc.
94-3 at 15-18). Gimber was also supervisor in the mailroom on February 3, 10, 11, 2016, and
March 11, 2016, dates around which he received legal mail from the Attorney General of New
York, the Attorney General of Illinois, and the Illinois Court of Claims (Doc. 94-10; Doc. 94-3 at
10). Further, Gimber, New, and Miner were all on duty in the mailroom on July 18 and 21, 2016,
and Plaintiff received an opened letter from the Illinois Court of Claims on July 21, 2016 (Id. at 2,
24). Finally, Lawrence signed-off on timesheets as the mailroom supervisor on January 11, 2017,
January 13, 2017, March 10, 2017, and March 20, 2017, and Plaintiff received mail from the John
Marshall Law School that was improperly opened on January 13, 2017, and mail from Barry Lewis
on March 10, 2017 (Id. at 3-5, 25; Doc. 85 at 74, 77).
Around November or December 2016, Plaintiff complained to Defendant Sgt. Hudson
about his legal mail being opened outside of his presence (Declaration of Jeryme Morgan, Doc. 98
at ¶ 18). Hudson responded by telling Plaintiff that maybe he should stop filing lawsuits and
writing grievances (Id.; Doc. 85 at 80). Hudson further indicated that Plaintiff’s legal mail would
continue to be opened as long as Plaintiff continued to pursue litigation against prison staff (Doc.
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98 at ¶ 18). Hudson again made a similar remark to Plaintiff sometime in 2017 (Id.). At the time
Hudson made these remarks, Plaintiff had a pending lawsuit against Hudson (Doc. 98 at ¶¶ 20-21).
Summary Judgment Standard
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248). In assessing a summary judgment motion, the district court views the
facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation
omitted).
Discussion
Count Two – First Amendment claim against Defendants for destroying and failing to deliver
Plaintiff’s mail
In Count 2, Plaintiff alleges Defendants demonstrated a consistent policy and practice of
intentionally failing to deliver the contents of Plaintiff’s legal mail, thereby interfering with his
constitutional right to send and receive legal mail.
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The Supreme Court has held, “[a] prison inmate retains those First Amendment rights that
are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the
corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). In this vein, the Supreme
Court has recognized that prisoners have protected First Amendment interests in both sending and
receiving mail. Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (citing Thornburgh v. Abbott,
490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987)). A valid First Amendment claim
regarding interference in communications requires “a continuing pattern or repeated occurrences”
of denial or delay of mail delivery. Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2002)
(“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. 1987)).
In their motion for summary judgment, Defendants assert they did not violate Plaintiff’s
First Amendment rights because there is no evidence Plaintiff was harmed from the opening of his
legal mail and he has not alleged that his ability to “pursue a legal claim or defense” was affected
by Defendants’ actions. Defendants’ argument misses the mark. The inability to pursue a legal
claim or defense factors into consideration of a claim for denial of access to the courts based on the
improper opening, or interference with, attorney-client correspondence.
This claim was
dismissed in the Court’s threshold order. Before the Court is the question of whether the
interference in Plaintiff’s communications by Defendants was continuing or repeated so much so
as to rise to a constitutional violation. While Defendants may have missed the mark on their
argument, the evidence before the Court is not sufficient to defeat summary judgment.
Plaintiff’s mail was opened and contents were missing more than a dozen times.
However, there is no evidence that any one Defendant was involved in a “continuing pattern” of
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denying or delaying Plaintiff’s mail delivery. Notably, there is no evidence that any Defendant
even opened Plaintiff’s mail. Plaintiff is relying on the fact that Defendants worked in or
supervised the mailroom on or around days when improperly opened mail was delivered.
However, many of the dates on which mail was improperly opened and delivered to Plaintiff do
not align with the dates on which Defendants were working in, or supervising, the mailroom.
Indeed, many of the dates cited by Plaintiff as dates on which Defendants were working in the
mailroom align with the postmark date on the mail, not the delivery date. Defendants clearly
could not interfere with mail that had not yet been received. Further, there were often numerous
individuals who worked in the mailroom on any given day, many of whom are not named as
defendants in this action.
To find that Defendants were each personally responsible for the continued improper
opening of Plaintiff’s mail would require the Court to pile inference upon inference and, even then,
it is not apparent that the personal responsibility requirements under § 1983 could be met.
Notably, liability under § 1983 is predicated on a defendant’s personal involvement in the alleged
constitutional violation. Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (citations
omitted). To be personally responsible, an official “must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye.” Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009)
(quoting Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006) (citing Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995)). Here, there is simply insufficient evidence to find that any
particular Defendant was personally responsible or engaged in any specific action to repeatedly
interfere with Plaintiff’s mail to sustain a First Amendment claim.
Further, this is not an instance where Plaintiff has moved against the warden or IDOC for
instituting an unconstitutional policy or practice. The Court recognizes Plaintiff named
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Defendants in both their official and individual capacities, and included blanket allegations in his
complaint that Defendants “demonstrated a consistent policy and practice of intentionally failing
to deliver the contents of Plaintiff’s legal mail.” Plaintiff’s complaint seems to attempt to allege a
Monell policy and practice claim. Insofar as this was Plaintiff’s intention, such claim clearly
fails. Under Monell, governmental entities can be held responsible for constitutional violations
“only when they themselves cause the deprivation of rights.” J.K.J. v. Polk County, 960 F.3d 367,
377 (7th Cir. 2020). Insofar as Plaintiff has not named any particular governmental entity for
instituting or implementing an unconstitutional policy or practice, any purported policy and
practice claim fails.
For these reasons, summary judgment as to all Defendants is granted on Count One.
Count Three – First Amendment retaliation claim against Defendants
A prison official who takes action in retaliation for a prisoner’s exercise of a constitutional
right violates the Constitution. DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000). The
Seventh Circuit has articulated that for a plaintiff to prevail on a First Amendment retaliation
claim, he must show that: (1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the
First Amendment activity was “at least a motivating factor” in the defendant’s decision to take the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v.
Mason, 542 F.3d 545, 551 (7th Cir. 2008)) (other citations omitted).
At the summary judgment stage, the Seventh Circuit has held that the burden of proving
causation is split between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012).
Initially, in order to establish a prima facie case, the plaintiff must produce evidence that his
speech was at least a “motivating” factor in the defendant’s decision to take retaliatory action. Id.
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Then, the burden shifts to the defendant to rebut the causal inference raised by the plaintiff’s
evidence and show that the harm would have occurred anyway, despite the protected activity. Id.
If the defendant fails to counter the plaintiff’s evidence, then the defendant’s retaliatory actions are
considered a “necessary condition” of the plaintiff’s harm, and the plaintiff has established the
“but-for” causation needed to succeed on his claim. Id.
Based on the evidence in the record, it is apparent Plaintiff engaged in activity protected by
the First Amendment in filing lawsuits and grievances, and Defendants do not make an argument
to the contrary. Next, the Court considers whether Plaintiff suffered a deprivation likely to deter
First Amendment activity. Defendant Hudson2 argues Plaintiff was not harmed in any way and
there is no evidence that Plaintiff was unable to pursue a legal claim or defense due to Defendant’s
actions. Again, however, this is not the question — the question is whether Plaintiff suffered a
deprivation likely to deter First Amendment activity. The Court finds this question must be
answered in the affirmative as repeated inference with Plaintiff’s mail is a deprivation likely to
deter First Amendment activity. See Dobbey v. Jeffreys, 417 F.Supp.3d 1103, 1110 (N.D. Ill. Oct.
8, 2019); compare Pietila v. York, No. 20-cv-506-bbc, 2020 WL 4586403, *1 (W.D. Wis. Aug. 10,
2020) (finding the officer-defendant’s “one-time decision to open plaintiff’s mail was not
unconstitutional, and an ordinary prisoner would not be deterred from engaging in protected
speech by [the defendant’s] action.”).
Next, the Court considers whether Plaintiff’s First Amendment activity was a “motivating
factor” in Defendants’ decisions to take retaliatory action. In considering this element, the Court
must look to the actions of each Defendant individually. First, the Court considers Defendant
2
Defendants’ brief limits their argument on Plaintiff’s retaliation claim to Defendant Hudson and do not address any
other Defendants in this portion of their brief.
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Hudson. In the light most favorable to Plaintiff, the evidence demonstrates that in November or
December 2016, Defendant Hudson made statements to Plaintiff indicating that his legal mail
would continue to be opened so long as he continued to pursue litigation against prison staff. This
clearly establishes a prima facie case that Defendant Hudson acted to interfere with Plaintiff’s
mail, or at least had knowledge of the same and failed to rectify the situation, in retaliation for
Plaintiff filing lawsuits against prison staff. Defendant Hudson has failed to introduce any
evidence in an attempt to rebut Plaintiff’s evidence of retaliatory motive. Thus, Plaintiff shall
proceed on Count 3 against Defendant Hudson.
Summary judgment, however, should be awarded in favor of the remaining Defendants –
Misty New, Cynthia Gimber, Lacy Mezo, Matthew Purdom, Brian Miner, and Frank Lawrence –
as there is insufficient evidence for a reasonable jury to find they either interfered with Plaintiff’s
mail, or knew of the same, in retaliation for Plaintiff engaging in First Amendment activity.
Indeed, Plaintiff has failed to introduce any direct or circumstantial evidence that these Defendants
took any action in retaliation for Plaintiff filing grievances or lawsuits. There is no indication
Defendants were even aware of Plaintiff’s First Amendment activities. For this reason, pursuant
to Federal Rule of Civil Procedure 56(f), Plaintiff is notified that summary judgment will be
granted in favor of Defendants New, Gimber, Mezo, Purdom, Miner, and Lawrence on Count 3.
Any evidence opposing summary judgment under Rule 56(f) for the reasons provided
must be filed by February 12, 2021.
Qualified Immunity
With regard to Defendants New, Gimber, Mezo, Purdom, Miner, and Lawrence, the Court
need not consider the issue of qualified immunity because it has already concluded that the
evidence, when viewed in a light most favorable to Plaintiff, does not establish a genuine issue of
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fact as to whether Defendants violated Plaintiff’s constitutional rights.
The Court, however, rejects Defendant Hudson’s argument concerning qualified
immunity. At the time of the events in question, it was clearly established that interfering with an
inmate’s mail in retaliation for the inmate filing grievances and lawsuits implicates an inmate’s
constitutional rights.
Conclusion
Based on the foregoing, the Motion for Summary Judgment filed by Defendants Misty
New, Cynthia Gimber, Maynard Hudson, Lacy Mezo, Matthew Purdom, Brian Miner, and Frank
Lawrence (Doc. 83) is GRANTED IN PART AND DENIED IN PART. The Clerk of Court
shall enter judgment in favor of Defendants New, Gimber, Mezo, Purdom, Miner, Hudson, and
Lawrence and against Plaintiff as to Count 2 at the close of this case.
Pursuant to Federal Rule of Civil Procedure 56(f), Plaintiff is notified that summary
judgment will be granted in favor of Defendants New, Gimber, Mezo, Purdom, Miner, and
Lawrence as to Count 3. Any evidence opposing summary judgment under Rule 56(f) for the
reasons provided must be filed by February 12, 2021.
Plaintiff shall proceed in this action on the following claim:
Count 3:
Defendant Hudson violated Plaintiff’s First Amendment rights by
retaliating against him for filing grievances and lawsuits that challenged the
conditions of his confinement.
IT IS SO ORDERED.
DATED: January 13, 2021
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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