ALI-X v. ALL THE EMPLOYEES OF MAIL ROOM STAFFS

Filing 2

MEMORANDUM OPINION and ORDER IFP is GRANTED and Clerk shall file the Complaint. ORDERED Clerk shall serve a copy of this Order by regular mail upon Attorney General of NJ and the Warden of EJSP. ORDERED within 180 days of the entry of this Order, Plaintiff shall file an amended complaint identifying by name the fictitious defendants. ORDERED within 30 days after the entry of this Order, Plaintiff may file an amended complaint addressing the deficiencies of the Complaint with respect to the a ccess to courts claim. ORDERED upon receipt of identifying information, the Clerk shall issue summons and Marshal shall serve. ORDERED Clerk shall send Plaintiff Appendix H and a blank Pro Bono Counsel application. Signed by Chief Judge Jerome B. Simandle on 6/6/2012. (nz, )n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KASEEM ALI-X,
Plaintiff,
v.
ALL THE EMPLOYEES OF MAIL
ROOM STAFFS,
Defendants.

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Civil Action No. 12-3147 (JBS)
MEMORANDUM OPINION and ORDER

APPEARANCES:
Plaintiff pro se
Kaseem Ali-X
East Jersey State Prison
Rahway, NJ 07065
SIMANDLE, Chief Judge:
This matter having come before the Court pursuant to
Plaintiff’s submission of a Complaint and application to proceed
in forma pauperis without prepayment of fees pursuant to 28
U.S.C. § 1915, and
The Court having considered Plaintiff’s application to
proceed in forma pauperis, and having screened the Complaint for
dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42
U.S.C. § 1997e, and the Court finding that dismissal of the
Complaint is not warranted at this time;
AND IT APPEARING THAT:
Plaintiff seeks to assert various constitutional claims
against fictitious mailroom employees arising out of an alleged

pattern and practice of opening properly marked incoming legal
mail outside of his presence on approximately ten occasions
between May 24, 2010 and September 30, 2011, and of confiscating
the contents of such mail on approximately four occasions; and it
further appearing that
The Court of Appeals for the Third Circuit has held that a
pattern and practice of opening legal mail, including mail sent
to and from courts, outside a prisoner’s presence impinges upon
an inmate’s First Amendment right to freedom of speech, and that
such practices are valid only if they are "reasonably related to
legitimate penological interests."

Jones v. Brown, 461 F.3d 353,

358-64 (3d Cir. 2006) (quoting Turner v. Safley, 482 U.S. 78, 89
(1997)), cert. denied, 127 S.Ct. 1822 (2007).

See also Bieregu

v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), implied overruling on
other grounds recognized in Oliver v. Fauver, 118 F.3d 175, 17778 (3d Cir. 1997); and it further appearing that
The Supreme Court has held that “the Fourth Amendment
proscription against unreasonable searches does not apply within
the confines of the prison cell,” Hudson v. Palmer, 468 U.S. 517,
526 (1984), and numerous lower courts have held that this applies
as well to searches of a prisoner’s incoming mail, see, e.g.,
Horacek v. Grey, 2010 WL 914819 at *5 (W.D. Mich. March 12,
2010); Thomas v. Kramer, 2009 WL 937272 at *2 (E.D. Calif., April
7, 2009); Hall v. Chester, 2008 WL 4657279 at *6 (K. Kan. Oct.

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20, 2008); Rix v. Wells, 2008 WL 4279661 at *2 (M.D. Fla. Sept.
16, 2008; and it further appearing that
In order to state a claim for denial of access to the courts
in violation of the First Amendment, a prisoner must show “actual
injury” with respect to litigation challenging his conviction or
the conditions of his confinement, see, e.g., Lewis v. Casey, 518
U.S. 343, 348-55 and n.3 (1996); Oliver v. Fauver, 118 F.3d 175,
177-78 (3d Cir. 1997).

Here, Plaintiff describes neither the

nature of the litigation nor any circumstance that could be
considered “actual injury” with respect to a protected form of
litigation;
6th

IT IS, therefore, on this

day of

June

, 2012,

hereby
ORDERED that Plaintiff’s application to proceed in forma
pauperis is hereby granted pursuant to 28 U.S.C. § 1915(a) and
(b); and it is further
ORDERED that the Clerk of the Court shall file the Complaint
without prepayment of fees or security; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk
shall serve a copy of this Order by regular mail upon the
Attorney General of the State of New Jersey and the Warden of
East Jersey State Prison; and it is further

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ORDERED that Plaintiff’s First Amendment claim challenging
the pattern and practice of opening his legal mail outside his
presence MAY PROCEED; and it is further
ORDERED that the access-to-courts claim is DISMISSED WITHOUT
PREJUDICE for failure to state a claim; and it is further
ORDERED that the Fourth Amendment claim is DISMISSED WITH
PREJUDICE for failure to state a claim; and it is further
ORDERED that within 180 days after entry of this Order,
Plaintiff shall file an amended complaint identifying by name the
fictitious defendants who are alleged to have engaged in a
pattern and practice of opening his properly-marked legal mail
outside of his presence, or face possible dismissal without
further notice for failure to prosecute; and it is further
ORDERED that within 30 days after entry of this Order,
Plaintiff may file an amended complaint addressing the
deficiencies of the Complaint with respect to the access-tocourts claim; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(d), upon receipt
of adequate identifying information regarding the fictitious
defendants, the Clerk shall issue summons and the United States
Marshal shall serve summons and copies of the Complaint and this
Order upon such defendants, with all costs of service advanced by
the United States; and it is further

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ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2),
Defendants who are served shall file and serve a responsive
pleading within the time specified by Fed.R.Civ.P. 12; and it is
further
ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a)
of Appendix H of the Local Civil Rules, the Clerk shall notify
Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel in accordance with
the factors set forth in Tabron v. Grace, 6 F.3d 147 (3d Cir.
1993), cert. denied, 510 U.S. 1196 (1994), which sets forth the
requirements for eligibility for appointment of pro bono counsel.
Plaintiff is advised that such appointment is not automatic; and
it is further
ORDERED that the Clerk shall enclose with such notice a copy
of Appendix H and a form Application for Appointment of Pro Bono
Counsel; and it is further
ORDERED that, if at any time Plaintiff seeks the appointment
of pro bono counsel, pursuant to Fed.R.Civ.P. 5(a) and (d),
Plaintiff shall (1) serve a copy of the application for
Appointment of Pro Bono Counsel by regular mail upon each party
at his last known address or, if the party is represented in this
action by an attorney, upon the party’s attorney and the
attorney’s address, and (2) file a Certificate of Service with
the Application for Pro Bono Counsel; and it is further

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ORDERED that Plaintiff is assessed a filing fee of $350.00
which shall be deducted from Plaintiff’s institutional account
pursuant to 28 U.S.C. § 1915(b)(2) in the manner set forth below,
regardless of the outcome of the litigation; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the
$350.00 fee is paid, each month that the amount in Plaintiff’s
prison account exceeds $10.00, the agency having custody of
Plaintiff shall assess, deduct from his institutional account,
and forward to the Clerk payments equal to 20% of the preceding
month’s income credited to Plaintiff’s institutional account,
with each payment referencing the civil docket number of this
action.

s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court

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