Kirkwood v. Ives et al
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED as follows: The defendants' Motion to Dismiss is Denied as Moot but their Motion for Summary Judgment, D.E. No. 38 , is GRANTED. 2. The Court will enter a judgment conte mporaneously with this order. Case Terminated, Motions terminated: 38 MOTION to Dismiss by J. Cornelius, T. Doolin, K. Johnson, P. Poston, S. Saylor, K. Williams filed by S. Saylor, K. Johnson, J. Cornelius, K. Williams, P. Poston, T. Doolin. Signed by Judge Henry R. Wilhoit, Jr on 07/26/2012.(KJA)cc: COR; mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
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KELLY C. KIRKWOOD,
Plaintiff,
V.
WARDEN R. IVES, et al.,
Defendants.
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Civil Action No. 11-210-HRW
MEMORANDUM OPINION
AND ORDER
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Defendants Katrina Williams, Sheila Saylor, Pam Poston, Terry Doolin, Kermit
Johnson, and Jeff Cornelius have filed a motion to dismiss, or in the alternative,
motion for summary judgment [D.E. No. 38] and plaintiff Kelly C. Kirkwood has
filed his response. [D.E. No. 44] As explained below, the defendants' motion for
summary judgment will be granted.
BACKGROUND
On July 27,2011, Kirkwood filed this civil rights action alleging that between
December 21, 2010, and March 21, 2011, various officials at the United States
Penitentiary-McCreary, in Pine Knot, Kentucky, violated his First Amendment rights
because they allegedly opened a package that was properly marked as legal mail from
his attorney, Henry E. Marines, outside ofhis presence; presumably read its contents;
shuffled the documents out of order; and removed documents from the package.
Kirkwood alleges that after the incident he informed the defendants that their actions
had violated his constitutional rights and the law established in Merriweather v.
Zamora, 569 F.3d 307 (6th Cir. 2009), but that they asserted that they were
authorized to open the package and inspect its contents because it was not properly
marked as legal mail under BOP regulations. [D.E. No.2]
In his complaint, Kirkwood alleges that under Merriweather, the attorney
designation on legal mail is not required to appear at a particular place on the
envelope; rather, the sender need only indicate somewhere on the envelope that he or
she is an attorney. Kirkwood sought damages for the alleged violations and an
injunction prohibiting prison officials from interfering further with his incoming legal
mail. After amending his complaint once [D.E. No.6] Kirkwood filed four more
motions to amend his complaint to assert new claims arising out of further instances
of alleged interference with his legal mail occurring between October 7, 2011, and
November 29,2011. [D.E. Nos. 9,20,21, and 24]
On December 9, 2011, the Court denied Kirkwood's motion for emergency
injunctive relief, dismissed any claims arising from alleged interference with his legal
mail after December 21, 2010, because it was obvious from his filings that he had not
administratively exhausted such claims, and ordered the defendants to be served with
process with respect to Kirkwood's remaining claims. [D.E. Nos. 27 and 28]
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On March 5, 2012, the six remaining defendants filed a motion to dismiss for
failure to state a claim against them upon which relief could be granted. [D.E. No.
38] Defendants Poston, Saylor, and Williams filed sworn declarations stating that
they were not working at the prison on December 21, 2010, and therefore could not
have opened Kirkwood's legal mail. [D.E. Nos. 38-6 through 8] Likewise defendant
Doolin filed a sworn declaration stating that he had been assigned to the "Receiving
and Discharge" area of the prison where he worked his entire shift and did not work
in the mail-room that day. [D.E.No. 38-5] The defendants attached documents
approving leave (absence from work) for Poston, Saylor, and Williams on December
21, 2010, and records showing that Doolin was assigned to the "Receiving and
Discharge" area of the prison on that day. [D.E. Nos. 38-20 through 23]
Defendants Johnson and Cornelius acknowledge in their sworn statements that
they were working in the prison mail-room on December 21,2010, but they do not
specifically recall handling Kirkwood's incoming legal mail on that date. [D.E. Nos.
38-3 through 38-4] They contend, however, that even if they did open Kirkwood's
legal mail, they did so because the Post Office had already labeled the package from
Marines as "RECEIVED IN DAMAGED CONDITION," and because it was not
properly marked as legal mail pursuant to the applicable federal regulation and BOP
policy. The return address on the mailing label read as follows:
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Henry E. Marines
Law Offices of Henry E. Marines
8501 SW 124th Ave STE 204A
Miami FL 331883-4633
[D.E. No. 2-1, p. 10]
Although the package from Marines was stamped "LEGAL MAIL OPEN IN
INMATE PRESENCE ONLY," the defendants contend that return address on the
package did not otherwise comply with 28 C.F.R. § 540. 19(b), which requires an
attorney to list his name and to adequately identify himselfas an attorney in the return
address of any mailing sent to an inmate. Johnson and Cornelius argue that they
knew that the mailing came from the Law Office ofHenry E. Marines, but they could
not determine from the label whether Marines was a lawyer. [D.E. No. 38-1, p. 19]
They argue that the mail room staff"...does not have time to conduct research as to
whether the sender is indeed an attorney or not." [Id., p. 7]
Johnson and Cornelius also contend that the return address did not comply with
approved examples ofproperly marked incoming legal mail set forth in BOP Program
Statement 5265.14, Correspondence, a uniform and evenly-applied policy which
prison mail-room employees routinely follow to determine if a mailing qualifies as
legal mail which can be opened only in the inmate's presence, or regular mail which
can be opened and inspected without the inmate being present.
Johnson and Cornelius argue that the mailing did not match the examples of
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compliant legal mail return addresses pursuant to the Example Sheet under the
Program Statement; the mailing did not sufficiently identify Marines as an attorney;
and because they complied with the applicable regulation and Program Statement,
opening the package from Marines on December 21, 2010, was not retaliatory,
arbitrary, or in blatant disregard of established mail-room procedures.
Next, Johnson and Cornelius contend that even assuming they improperly
opened Kirkwood's legal mail, Kirkwood failed to establish that he suffered any
actual injury as a result. They allege that notwithstanding the alleged interference
with Kirkwood's legal mail, no pending legal proceeding in which Kirkwood was a
party was dismissed; he was not prevented from filing any contemplated legal
proceeding; and he did not miss any court-imposed filing deadline. In other words,
they allege that Kirkwood was not adversely affected or prejudiced by the alleged
opening of his legal mail. [D.E. No. 38-1, pp. 17-18]
Finally, the defendants contend that they are entitled to qualified immunity
because their conduct did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. [Id., pp. 19-23]
In his response [D.E. No. 44], Kirkwood argued that dismissal of his claims
against defendants Johnson and Cornelius is unwarranted because opening his legal
mail outside of his presence was contrary to the law established in Merriweather.
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Kirkwood did not respond to the defendants' argument that he sustained no actual
injury as a result of any improper opening of his legal mail.
DISCUSSION
1. Defendants Poston. Saylor. Williams. and Doolin
Under Bivens v. Six Unknown Named Agents a/Federal Bureau a/Narcotics,
403 U.S. 388 (1971), for a defendant to be liable for alleged constitutional violations
he or she must have been personally involved in the conduct which allegedly resulted
in a constitutional violation. Rizzo v. Goode, 423 U.S. 362, 375-76 (1976); Williams
v. Mehra, 135 F.3d 1105, 1114 (6th Cir. 1998). Defendants Poston, Saylor, and
Williams have filed sworn declarations and submitted documentation substantiating
that they were not working at the prison on December 21, 2010, and Doolin has filed
a declaration with supporting documentation which shows that he was not working
in the mail-room on that day. If these four defendants either were not working at
USP-McCreary on that day or were working in another part ofthe prison, they could
not have been opened Kirkwood's legal mail, and thus would have liability to
Kirkwood under Bivens.
When a summary judgment motion is properly supported by an affidavit, an
opposing party may not rely merely on allegations or denials in [his] own pleading.
Instead, the non-moving party must come forward with "specific facts showing a
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genuine issue for trial." Fed. R. Civ. P. 56(c)(1). Kirkwood has come forward with
no evidence which disputes either the sworn declarations ofPoston, Saylor, Williams,
and Doolin, or the documentation substantiating that they could not have been
personally involved in the alleged opening of his legal mail on December 21,2010.
Indeed, in Kirkwood's response to the defendants' motion, he appears to
acknowledge that any liability for the opening his legal mail would lie with "... the
two (2) Mailroom staff who worked on the date of incident (December 20,2010 on
or about)." [D.E. No. 44, p. 1] Accordingly, no genuine issue of material fact under
Rule 56 exists with respect to defendants Katrina Williams, Sheila Saylor, Pam
Poston, and Terry Doolin, and the Court will grant summary judgment in their favor.
2. Defendants Jeff Cornelius and Kermit Johnson
Defendants Cornelius and Johnson, the mail room employees on duty of
December 21, 2010, contend that because attorney Marines did not properly label the
package he sent to Kirkwood as "legal mail," they opened and inspected it as regular
mail and were not required to follow the special procedures afforded to legal mail.
They appear to argue that because the word "Attorney" did not immediately follow
Marines's name in the first line of the return address, they did not know that he was
the attorney who was sent mail to Kirkwood, despite the fact that the very next line
of the return address read "Law Offices of Henry E. Marines."
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The controlling regulation states that "correspondence will be handled as
special mail only if (1) the envelope is marked with the attorney's name and an
indication that the person is an attorney, and (2) the front of the envelope is marked
"Special Mail-Open only in the presence ofthe inmate." 28 C.F.R. § 540.19(b). The
second requirement - that the front of the envelope be marked "Special Mail-Open
only in the presence of the inmate," was clearly satisfied in this case. The mailing
label shows that the package contained the stamp "Legal Mail Open in Inmate
Presence" in capital letters. [D.E. No.2-I, p. 10] Further, the BOP's Mid-Atlantic
Regional Office confirmed that the package had been correctly stamped with "Legal
Mail Open in Inmate Presence" when it responded to Kirkwood's BP-I0 appeal on
February 25, 2011. [Id., p. 5]
The Court also agrees with Kirkwood that the first requirement - that the
envelope be marked with the attorney's name and indicate that the person is an
attorney - was satisfied in this case. The return address on the label read:
Henry E. Marines
Law Offices of Henry E. Marines
8501 SW 124th Ave STE 204A
Miami FL 331883-4633
[D.E. No. 2-1, p. 10] It is plain that neither the word "Lawyer" nor "Attorney"
appeared immediately before or after Marines's name on the first line of the return
address label. The question is whether Section 542. 19(b) requires this. By its terms,
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the regulation requires only that the sender indicate he or she is an attorney, not that
"the attorney designation appear at a particular place on the envelope, such as
immediately after the person's name, although this would undoubtedly be more
convenient for the prison's mail processing staff." Merriweather, 569 F3d at 314.
Here, the return address label listed Marines's name, and in the line immediately
below, further identified the sender as the "Law Offices ofHenry E. Marines." When
read together and in conjunction with the stamp which read "LEGAL MAIL OPEN
IN INMATE PRESENCE ONLY," this was more than adequate to provide notice to
prison officials that the sender was an attorney.
Cornelius and Johnson argue that the letter should have conformed to one of
the examples of compliant return addresses set forth in Program Statement 5265.15.
[D.E. No. 38-4] But the examples provided are merely guidelines, and plainly do not
constitute the only means by which an attorney can satisfy the regulation. Contrary
to their argument, Merriweather explained that 28 C.F.R. § 542.19(b) does not
require an attorney designation appear at any particular place on the envelope so long
as the sender indicates somewhere on the envelope that he or she is an attorney.
Kirkwood has therefore established that the package satisfied the "legal mail"
requirements of Section 540.19(b), and therefore that it should not have been opened
outside his presence. The next question is whether the defendants' conduct violated
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the First Amendment of the United States Constitution, which guarantees access to
the courts; the Fifth Amendment, which guarantees due process of law; or the Sixth
Amendment, which guarantees access to counsel in a criminal proceeding.
For a First Amendment claim to succeed, the opening ofa prisoner's mail must
have been done in an "arbitrary or capricious" fashion with "blatant disregard" for
incoming mail regulations. Lavado v. Keohane, 992 F.2d 601, 601-11 (6th Cir.
1993); Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986). The Sixth Circuit has
explained:
Prison officials may open prisoners' incoming mail pursuant to a
unifonn and evenly applied policy with an eye to maintaining prison
security." Lavado v. Keohane, 992 F.2d 601,607 (6th Cir. 1993).
However, prison officials who open and read incoming mail in an
arbitrary and capricious fashion violate a prisoner's First Amendment
rights. See Parrish v. Johnson, 800 F.2d 600,604 (6th Cir. 1986).
SaUier v. Brooks, 343 F.3d 868, 873-74 (6th Cir. 2003). The defendants have
submitted sworn declarations stating when detennining whether a particular piece of
incoming mail qualifies as "legal mail" which requires the inmate to be present when
opened, they are applying established BOP policies in an even and unifonn manner.
They further state, if they deviated from that standard by opening Kirkwood's legal
mail on December 21, 2010, it was done unintentionally and without malice or
prejudice to Kirkwood. [D.E. No. 38-3 at 5; 38-4 at 5] In response, Kirkwood
alleges that the defendants are strictly liable ifany piece ofhis legal mail was opened
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outside of his presence. However, in Lavado the Sixth Circuit declined to hold that
any violation of the BOP's mail regulations would constitute a per se constitutional
violation. Lavado, 992 F.2d at 610. Rather, a plaintiff must demonstrate that mail
room employees blatantly and arbitrarily ignored mail-room regulations. Id. at 611.
Apart from broad allegations of wrongdoing set forth in his complaint,
Kirkwood has not made an effort to make this showing. For their part, Johnson and
Cornelius explain in their declarations that ifthey did open the package in question,
it was likely because it did not appear visually similar to one ofthe "good" examples
in the BOP's mail-room procedures [D.E. No.3 8-18], and because the Postal Service
had already marked the package as being in "Damaged" condition. [D.E. No. 38-3
at 3-5; 38-4 at 3-5] When faced with a properly supported motion for summary
judgment, the nonmoving party cannot rest on mere allegations to counter that
motion; he or she must set forth specific facts through affidavits or other evidence.
Lujan v. National Wildlife Federation, 497 U.S. 871 884-85 (1990); see also
Gladstone Realtors v. Village o/Bellwood, 441 U.S. 91, 115 n.31 (1979). Kirkwood
has not submitted any evidence or sworn testimony into the record which supports his
claim that Johnson and Cornelius engaged in a consistent pattern of improperly
opening inmate legal mail. Without more, the evidence of record indicates that
Johnson and Cornelius merely relied upon the BOP's "Incoming Legal Mail Example
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Sheet" when they opened Kirkwood's package rather than engaging in arbitrary and
capricious conduct. Wyoming v. Oklahoma, 502 U.S. 437, 464 (1992).
Defendants also separately contend that Kirkwood has not stated a valid First
Amendment claim because he was neither prejudiced nor did he suffer any actual
injury even ifopening the package was improper. A plaintiffmust establish prejudice
to his ability to access the courts in order to state a First Amendment claim where a
prison official interferes with his legal mail. Stanley v. Vining, 602 F.3d 767, 770
(6th Cir. 2010) (rejecting prisoner's First Amendment claim because he did not allege
that the guard's interference with his legal mail in any way affected his access to the
courts); Corsetti v. McGinnis, 24 F. App'x. 238, 241 (6th Cir. 2001) ("Regarding the
alleged reading of Corsetti 's legal mail and legal materials, Corsetti has not alleged,
nor is there any evidence, that any papers were seized or that the defendants' reading
of the papers caused actual injury or 'hindered his efforts to pursue a legal claim.'"
(quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)); Pilgrim v. Littlefield, 92 F.3d
413,416 (6th Cir. 1996).
Kirkwood does not allege in his complaint [D.E. No.2], his amended complaint
[D.E. No.6], or his response [D.E. No. 44] that his access to the courts was in any
way impaired or affected when his legal mail was opened on December 21,2010. In
his complaint, he stated only that he had requested "some legal materials from
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criminal 'defense attorney' Henry E. Marines," and that he had instructed Marines as
to the proper mailing regulations concerning special/legal mail. [D.E. No.2, p. 5]
Kirkwood did not allege that the legal materials he requested from Marines pertained
to any case in which he was involved, either criminal or civil. As the Sixth Circuit
explained in SaUier:
Not all mail that a prisoner receives from a legal source will implicate
constitutionally protected legal mail rights. Indeed, even mail from a
legal source may have little or nothing to do with protecting a prisoner's
access to the courts and other governmental entities to redress
grievances or with protecting an inmate's relationship with an attorney.
SaUier, 343 F.3d at 874.
While Marines sent the package to Kirkwood, nothing in the record indicates
that Marines was representing Kirkwood in any legal proceeding, or that the mailing
was related to any of Kirkwood's three criminal cases. The docket sheets from
Kirkwood's criminal cases in the United States District Courts for the Northern
District ofWest Virginia and the District of Wyoming, [D.E. Nos. 38-10 through 12],
reveal that (1) Marines was not listed as Kirkwood's counsel ofrecord in any ofthose
criminal proceedings, and (2) Kirkwood's criminal proceedings had concluded by
February 13, 2009. The package from Marines does not appear to relate to any
pending criminal case involving Kirkwood. Further, the federal judiciary's database
website, PACER, reveals that Kirkwood has not filed any other civil litigation other
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than this Bivens action. Thus the package from Marines likewise does not appear to
be connected to any pending civil litigation involving Kirkwood. Therefore, nothing
in the record supports the notion that Kirkwood suffered any prejudice as a result of
his legal mail being opened in error by prison officials on December 21,2010. Lewis
v. Grider, 27 F. App'x. 282, 283 (6th Cir. 2001) (prisoner's claim for interference
with access to courts through opening legal mail failed "as he alleged no prejudice to
any pending litigation"); see also Wardell v. Duncan, 470 F.3d 954, 959 (lOth Cir.
2006) ("A plaintiff must show that non-delivery of his legal mail resulted in actual
injury by frustrating, impeding, or hindering his efforts to pursue a legal claim.")
(internal quotation marks and citations omitted); Lewis v. Cook County Bd. of
Com 'rs, 6 F. App'x 428, 430 (7th Cir. 2001) (plaintiff could not prevail when he did
"not describe a single legal case or claim that was in any way thwarted because the
mail room staff opened his legal mail.")
Likewise, the opening of Kirkwood's legal mail did not violate his Fifth
Amendment right to due process oflaw because he had an available post-deprivation
remedy with respect to that action, i. e., the BOP's administrative remedy process. See
Stanley, 602 F.3d at 669-70 (finding that hearing which prisoner received during the
prison grievance process provided him with procedural due process as to his claims
alleging interference with his legal mail). Although the BOP denied Kirkwood's
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administrative grievances, he still was not denied due process of law, because
prisoners have no constitutionally protected liberty interest in an effective grievance
procedure. Argue v. Hofmeyer, 80 F. App'x 427, 430 (6th Cir. 2003); Overholt v.
Unibase Data Entry, Inc., 2000 WL 799760, at *3 (6th Cir. 2000).
Nor did Johnson and Cornelius' actions violate Kirkwood's Sixth Amendment
right to counsel. The Sixth Amendment reaches" only to protect the attorney-client
relationship from intrusion in the criminal setting
" Wolffv. McDonnell, 418 U.S.
539,576-77 (1974). Because the record does not indicate that the package related to
any criminal proceeding involving Kirkwood or that its opening interfered with an
attorney-client relationship between Kirkwood and Marines, he has failed to state a
Sixth Amendment claim. Stanley, 602 F3d at 770-71; Alavarez. Horel, 2011 WL
666708, at *1 (9th Cir. 2011 ) (dismissing prisoner's Sixth Amendment claim alleging
that prison staff interfered with his legal mail).
Accordingly, IT IS ORDERED as follows:
1.
The defendants' Motion to Dismiss is DENIED as MOOT but their
Motion for Summary Judgment, [D.E. No. 38], is GRANTED.
2.
This 26 th day of July, 2012.
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