THOMPSON v. HAYMAN et al

Filing 101

OPINION. Signed by Judge Joel A. Pisano on 7/6/2011. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD THOMPSON,
Plaintiff,
v.
GEORGE HAYMAN, et al.,
Defendants.

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Civil Action No. 09-1833 (JAP)

OPINION

APPEARANCES:
RICHARD THOMPSON, Plaintiff pro se
#568688
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey, New Jersey 08625
JOSEPH M. MICHELETTI, ESQ.
OFFICE OF THE NEW JERSEY ATTORNEY GENERAL
DIVISION OF LAW
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants
PISANO, District Judge
THIS MATTER comes before the Court on the motion (Docket
entry no. 89) of plaintiff, Richard Thompson, for partial summary
judgment against the defendants, and defendants’ cross-motion for
summary judgment dismissing the Complaint against them.
entry no. 55).

(Docket

Defendants’ cross-motion also was submitted in

opposition to plaintiff’s motion for partial summary judgment.

These motions were held in abeyance to allow the deposition of
plaintiff.

The motions were renewed after the plaintiff’s

deposition took place in November 5, 2010.
nos. 94 and 96).

(See Docket entry

This matter is being considered on the papers

pursuant to Fed.R.Civ.P. 78.

For the reasons set forth below,

plaintiff’s motion for partial summary judgment is granted in
part, and defendants’ cross-motion is denied in part.
I.

BACKGROUND

On or about April 20, 2009, plaintiff, Richard Thompson
(“Thompson”), filed a civil rights Complaint, pursuant to 42
U.S.C. § 1983, against the following defendants: George Hayman,
then Commissioner of the New Jersey Department of Corrections
(“NJDOC”); Michelle R. Ricci, Administrator of the New Jersey
State Prison (“NJSP”); and L. Jackson, M. Lincoln and Linda
Ellison, correctional officers who were employed at the NJSP mail
room.

(Complaint, Caption, Docket entry no. 1).

Defendants

filed an Answer to the Complaint on October 23, 2009.
entry no. 32).

(Docket

Following initial discovery, Thompson filed a

motion for partial summary judgment on or about February 22,
2010.

(Docket entry no. 48).

Defendants filed a cross motion

for summary judgment and in opposition to plaintiff’s motion on
April 15, 2010.

(Docket entry no. 55).

Both plaintiff’s and

defendants’ motions were denied without prejudice by Order filed
on September 29, 2010.

(Docket entry no. 87).

2

Thompson re-

submitted his motion for partial summary judgment on October 13,
2010.

(Docket entry no. 89).

The motion was dismissed without

prejudice to plaintiff re-filing same after discovery was
complete.

(Docket entry no. 91).

By letter Order issued

November 30, 2011, plaintiff’s motion for partial summary
judgment (Docket entry no. 89) was deemed re-filed.
entry no. 94).

(Docket

By letter dated December 9, 2010, defendants re-

submitted their opposition to plaintiff’s motion and their crossmotion for summary judgment.

(Docket entry no. 55).

Thompson is a federal prisoner serving a life sentence for
murder.1
2007.

He has been incarcerated at NJSP since January 12,

Thompson claims that, from December 2007 through April

2008, his legal mail was opened and inspected outside of his
presence on numerous occasions in violation of his First
Amendment rights.

In particular, Thompson alleges that the

October 2007 NJSP Inmate’s Handbook, which contained policies and
procedures approved and implemented by defendants, Hayman, as

1

Thompson is a federal prisoner serving a life sentence
for a federal conviction and sentence imposed on June 27, 1977,
in the United States District Court for the Northern District of
California. He has been serving his life sentence continuously
since 1977 at other correctional facilities in the United States,
but was transferred to the New Jersey State Prison (“NJSP”) on
January 12, 2007, pursuant to a contract agreement between the
State of New Jersey and the Federal Bureau of Prisons. The terms
of Thompson’s placement at the NJSP were not provided. See
February 24, 2010 Deposition of Richard Thompson at 6:13-10:13,
attached as Exhibit A to the Defendants’ Declaration of Keith
Massey, Docket entry no. 55-3.
3

NJDOC Commissioner, and Ricci, as NJSP Administrator, expressly
authorized correctional officials to electronically and visually
inspect all incoming legal mail outside of an inmate’s presence
before being delivered to the inmate addressee.

(October 2007

NJSP Inmate’s Handbook at pg. 45).
In his motion for partial summary judgment, Thompson
attaches numerous forms indicating that his incoming legal mail
was opened and examined outside his presence on the following
dates: 12/15/07; 12/04/07; 12/05/07; 12/04/07; 01/26/08;
02/20/08; 03/28/08; 03/20/08; 03/09/08; and 06/10/09.2

Thompson

also attaches several administrative remedy forms to his
Complaint.

In each form, Thompson complains that his clearly

marked legal mail was opened outside of his presence before being
delivered to him.

Responses to these grievances varied from a

blanket denial that “mail room staff does not open and/or read
clearly marked legal mail” to an admission that any mail so
opened is done so “accidently” and not purposefully.

In a letter

dated March 27, 2008, the then-Acting Assistant Commissioner
Lydell B. Sherrer wrote a response to Thompson’s grievance
stating that “mail room staff does not open and/or read clearly

2

The dates listed are the dates each mail was delivered to
plaintiff after it was opened. Thompson received several pieces
of legal mail on the same date (i.e., 12/04/07), but they were
separate legal mail. The forms provided by plaintiff also
include the postmark date of each legal mail sent to him.
4

marked legal mail.”

He referred Thompson to Administrator Ricci

for review and action on his grievances.
Thompson also provides a copy of an April 10, 2008
Memorandum from the NJSP Administrator Ricci, which amended the
2007 Inmate Handbook regarding the inspection of incoming legal
correspondence.

The amendment provides that any inspection of

incoming legal mail shall be performed in the presence of the
inmate addressee.
In their opposition to plaintiff’s motion and their crossmotion for summary judgment, defendants attach the transcript of
Thompson’s February 24, 2010 deposition.3

In their Statement of

Undisputed Material Facts, defendants admit that plaintiff’s
incoming legal mail was opened and inspected outside of his
presence from January 2007 through April 2008.

Defendants also

admit that Thompson signed remedy forms as to certain instances.
However, defendants contend that Thompson can not show that
defendant Hayman was aware of Thompson’s complaints.

Defendants

also claim that Thompson’s claims against Hayman and Ricci are
impermissibly based on supervisor liability because Thompson
admitted in his deposition that these defendants are liable to
him as their names were on the cover of the Inmate Handbook.

3

Interestingly, although these motions were delayed for
the completion of discovery, which included the continued
deposition of plaintiff, defendants did not refer to the November
2010 deposition in support of their cross-motion for summary
judgment.
5

(February 24, 2010 Deposition of Plaintiff at 18:15-19:10; 20:724).
Defendants further argue that the remaining defendant
correctional officers can not be held liable because Thompson
admits that he has no knowledge of who actually opened his mail;
rather, he named those individuals as defendants who signed a
receipt or worked in the mail room at the time his legal mail was
opened.

(February 24, 2010 Deposition of Plaintiff at 17:24-

18:14).
II.

DISCUSSION

A. The Summary Judgment Standard
A court shall grant summary judgment under Rule 56 of the
Federal Rules of Civil Procedure “if the movant shows 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).

The substantive law identifies which facts are critical or
“material.”
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A material fact raises a “genuine” issue “if the

evidence is such that a reasonable jury could return a verdict”
for the non-moving party.

Healy v. N.Y. Life Ins. Co., 860 F.2d

1209, 1219 n. 3 (3d Cir.1988).
On a summary judgment motion, the moving party must show,
first, that no genuine issue of material fact exists.
Corp. v. Catrett, 477 U.S. 317, 323 (1986).

6

Celotex

If the moving party

makes this showing, the burden shifts to the non-moving party to
present evidence that a genuine fact issue compels a trial.
at 324.

Id.

The non-moving party must then offer admissible evidence

that establishes a genuine issue of material fact, id. not just
“some metaphysical doubt as to the material facts.”

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The Court must consider all facts and their logical
inferences in the light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d
Cir. 1986).

The Court shall not “weigh the evidence and

determine the truth of the matter,” but need determine only
whether a genuine issue necessitates a trial.
at 249.

Anderson, 477 U.S.

If the non-moving party fails to demonstrate proof

beyond a “mere scintilla” of evidence that a genuine issue of
material fact exists, then the Court must grant summary judgment.
Big Apple BMW v. BMW of North America, 974 F.2d 1358, 1363 (3d
Cir. 1992).
B.

Supervisor Liability
The defendants argue that NJDOC Commissioner Hayman and NJSP

Administrator Ricci cannot be held liable on a claim of
supervisor liability, and that summary judgment should be granted
dismissing the Complaint as against them because plaintiff’s
claim is impermissibly based solely on supervisor liability
without any allegations of personal involvement.

7

As a general rule, government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.

See Iqbal, 129 S.Ct. at

1948; Monell v. New York City Dept. Of Social Servs., 436 U.S.
658, 691 (1978)(finding no vicarious liability for a municipal
“person” under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S.
507, 515-16 (1888)(“A public officer or agent is not responsible
for the misfeasances or position wrongs, or for the nonfeasances,
or negligences, or omissions of duty, of subagents or servants or
other persons properly employed by or under him, in discharge of
his official duties”).

In Iqbal, the Supreme Court held that

“[b]ecause vicarious or supervisor liability is inapplicable to
Bivens4 and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
S.Ct. at 1948.

Iqbal, 129

Thus, each government official is liable only for

his or her own conduct.

The Court rejected the contention that

supervisor liability can be imposed where the official had only
“knowledge” or “acquiesced” in their subordinates conduct.

Id.,

129 S.Ct. at 1949.
Under pre- Iqbal Third Circuit precedent, “[t]here are two
theories of supervisory liability,” one under which supervisors

4

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971)
8

can be liable if they “established and maintained a policy,
practice or custom which directly caused [the] constitutional
harm,” and another under which they can be liable if they
“participated in violating plaintiff’s rights, directed others to
violate them, or, as the person[s] in charge, had knowledge of
and acquiesced in [their] subordinates’ violations.”

Santiago v.

Warminster Twp., 629 F.3d 121, 127 n. 5 (3d Cir. 2010)(internal
quotation marks omitted).

“Particularly after Iqbal, the

connection between the supervisor’s directions and the
constitutional deprivation must be sufficient to demonstrate a
plausible nexus or affirmative link between the directions and
the specific deprivation of constitutional rights at issue.”

Id.

at 130.
The Third Circuit has recognized the potential effect that
Iqbal might have in altering the standard for supervisory
liability in a § 1983 suit but, to date, has declined to decide
whether Iqbal requires narrowing of the scope of the test.

See

Santiago, 629 F.3d 130 n. 8; Bayer v. Monroe County Children and
Youth Servs., 577 F.3d 186, 190 n. 5 (3d Cir. 2009)(stating in
light of Iqbal, it is uncertain whether proof of personal
knowledge, with nothing more, provides sufficient basis to impose
liability upon supervisory official).

Hence, it appears that,

under a supervisory theory of liability, and even in light of
Iqbal, personal involvement by a defendant remains the touchstone

9

for establishing liability for the violation of a plaintiff’s
constitutional right.

Williams v. Lackawanna County Prison, 2010

WL 1491132, at *5 (M.D.Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be
asserted; such assertions may be made through allegations of
specific facts showing that a defendant expressly directed the
deprivation of a plaintiff’s constitutional rights or created
such policies where the subordinates had no discretion in
applying the policies in a fashion other than the one which
actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that
the supervisor’s actions were “the moving force” behind the harm
suffered by the plaintiff.

See Sample v. Diecks, 885 F.2d 1099,

1117–18 (3d Cir. 1989); see also Iqbal, 129 S.Ct. at 1949–54.
Here, Thompson provides proof, by way of attachment of the
October 2007 NJSP Inmate’s Handbook signed by defendant Ricci,
that NJSP Administrator Ricci was the “moving force” who had
“established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.”
F.3d at 127 n.5.

See Santiago, 629

As the Administrator of the NJSP, Ricci is the

person directly responsible for creating, establishing,
overseeing and maintaining the policies, practices and procedures
regarding the administration of the NJSP.

Indeed, by her

signature and introduction on the October 2007 Inmate Handbook,

10

it is clear that Ricci is imparting to the inmates at NJSP that
she is the person responsible for making and enforcing the rules
at NJSP that are set forth in the handbook.

Thus, Ricci

expressly directed the deprivation of Thompson’s First Amendment
rights by enacting the policy, at page 45 of the Inmate Handbook,
of opening an inmate’s clearly marked legal mail outside of his
presence, in violation of Jones v. Brown, 461 F.3d 353 (3d Cir.
2006), which policy gave mail room officers no discretion in the
decision to open plaintiff’s legal mail in such manner directly
violating his constitutional rights.
Further, Ricci’s direct involvement in the enactment and
enforcement of this policy of opening an inmate’s legal mail is
confirmed by her later April 10, 2008 Memorandum, which amended
the October 2007 Inmate Handbook to reflect the current policy of
inspecting incoming legal mail pursuant to N.J.A.C. 10A:183.4(a)-(e).5

Thus, the Court finds that plaintiff’s evidence is

5

10A:18-3.4 Inspection of incoming legal correspondence
(a) Incoming legal correspondence shall be opened and inspected
by designated correctional facility staff for contraband only.
(b) Incoming legal correspondence shall be opened and inspected
only in the presence of the inmate to whom it is addressed.
(c) Incoming legal correspondence shall not be read or copied.
The content of the envelope may be removed and shaken loose to
ensure that no contraband is included. After the envelope has
been inspected the correspondence shall be given to the inmate.
(d) The correctional facility may require that the inmate sign a
slip acknowledging receipt of the incoming legal correspondence.
(e) Where there is substantial reason to believe that the
incoming correspondence is not legal in nature or that it
contains disapproved content pursuant to N.J.A.C. 10A:18-2.14,
the Administrator shall immediately notify the appropriate
11

sufficient to show that defendant Ricci expressly directed the
correctional staff at NJSP to open clearly marked incoming legal
mail outside of plaintiff’s presence in violation of his First
Amendment rights.

There is a clear connection between Ricci’s

directions in the October 2007 Inmate Handbook and the
constitutional deprivation suffered by Thompson, namely, the
opening of his clearly marked incoming legal mail outside of his
presence, that is sufficient to establish “a plausible nexus or
affirmative link between the directions and the specific
deprivation of constitutional rights at issue.”
F.3d at 130.

Santiago, 629

Thompson does not simply allege rote legal

conclusions against Ricci, and indeed, has supported his factual
allegations with evidence that goes well beyond mere “labels and
conclusions”, see Iqbal, 129 S.Ct. at 1949, which is sufficient
to establish Ricci’s personal involvement in the wrongful conduct
alleged.

Accordingly, defendant Ricci’s cross motion for summary

judgment based on the defense that she can not be held liable on
a claim of supervisor liability must be dismissed.

Plaintiff’s

Assistant Commissioner. The incoming legal correspondence shall
not be inspected in a manner other than as outlined in this
subchapter without first obtaining instructions from the
appropriate Assistant Commissioner.
Amended by R.1997 d.431, effective October 6, 1997. Special
amendment, R.2001 d.426, effective October 19, 2001. Amended by
R.2002 d.407, effective December 16, 2002; R.2007 d.158,
effective May 21, 2007; R.2008 d.141, effective June 2, 2008.
12

motion for partial summary judgment on the issue of liability as
against defendant Ricci will be granted.
However, the Court will grant defendant Hayman’s crossmotion for summary judgment because Thompson has failed to
demonstrate that Hayman had any direct or actual involvement in
the violation of Thompson’s First Amendment rights by virtue of
NJSP policy at issue.

Thompson simply alleges that Hayman is

liable because his name is printed on the Inmate Handbook.

There

is simply no evidence to show that Hayman was personally involved
or directed the implementation of the offending policy of opening
legal mail outside of an inmate’s presence in violation of
Thompson’s First Amendment rights.

Therefore, summary judgment

will be granted in favor of defendant Hayman, and plaintiff’s
motions for partial summary judgment with respect to Hayman will
be denied.
C.

Plaintiff Is Entitled to Partial Summary Judgment
Thompson’s Complaint alleges that defendants violated his

First Amendment rights by opening his legal mail outside his
presence.

The Court of Appeals for the Third Circuit has long

held that prisoners have a First Amendment right not to have
properly marked legal mail opened outside of their presence.

See

Fontroy v. Beard, 559 F.3d 173, 174-75 (3d Cir. 2009); Jones v.
Brown, 461 F.3d 353, 355 (3d Cir. 2006), cert. denied, 127 S. Ct.
1822 (2007)(holding that the legal mail policy of state prisons
in opening legal mail outside the presence of the inmate violated

13

the inmate’s First Amendment right to freedom of speech, and was
not reasonably related to prison’s legitimate penological
interest in protecting health and safety of prisoners and staff);
Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir. 1995)(“[A] pattern
and practice of opening properly marked incoming court mail
outside an inmate’s presence infringes communication protected by
the right to free speech.

Such a practice chills protected

expression and may inhibit the inmate’s ability to speak,
protest, and complain openly, directly, and without reservation
with the court.”), implied overruling on other grounds recognized
in Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).

Thus,

the assertion that legal mail is intentionally opened and read,
delayed for an inordinate period of time, or stolen, plainly
states a First Amendment claim.6
The Third Circuit opined that a policy that allows the
opening of legal mail without the physical presence of addressee
inmates “deprives the expression of confidentiality and chills
the inmates’ protected expression, regardless of the state’s
good-faith protestations that it does not, and will not, read the
content of the communications.”

Jones, 461 F.3d at 359.

Prisoners may establish a violation of the First Amendment
without establishing an actual injury where there is a pattern
6

Nevertheless, inmates have a limited liberty interest in
their mail under the First and Fourteenth Amendments; thus, an
inmate’s constitutional right to send and receive mail may be
restricted only for legitimate penological interests. See
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Turner v. Safley,
482 U.S. 78, 89 (1987).
14

and practice of opening properly marked incoming legal mail
outside an inmate’s presence.

As the Third Circuit has stated,

“nothing in the reasoning of Casey or Oliver [v. Fauver, 118 F.3d
175 (3d Cir. 1997)] suggests that a prisoner alleging that
officials have opened his legal mail outside of his presence and
thereby violated his First Amendment rights need allege any
consequential injury stemming from that violation, aside from the
violation itself.”

Jones, 461 F.3d at 359.

Thus, unlike an inmate’s right to court access, in cases
where a prisoner’s legal mail is opened repeatedly outside of his
presence, there is no “actual injury” requirement to assert a
claim.

Bieregu, 59 F.3d at 1455.

Conversely, the court

distinguished between a single, inadvertent opening of properly
marked legal mail outside an inmate’s presence and a pattern or
practice of such actions.

The former may not infringe a

prisoner’s right to free speech, nor his right to court access
absent a showing of actual injury.

Bieregu, 59 F.3d at 1458.

In this case, Thompson has demonstrated that his legal mail
was repeatedly and continuously opened outside of his presence on
numerous occasions from December 2007 until April 2008, despite
his repeated complaints about these First Amendment violations.
He provides ten separate forms documenting these violations.
Moreover, defendants do not deny that Thompson’s legal mail was
opened outside his presence on all of these occasions.

15

Defendants do contend, however, that the wrongful conduct
alleged by Thompson does not rise to the level of a
constitutional violation because the legal mail was opened
inadvertently.

Defendants also state that such mail that was

opened was not clearly marked as legal mail.

Further, defendants

argue that there were only a “few, isolated incidents”, which do
not support a finding that Thompson’s rights were violated
intentionally, and that Thompson admitted at his deposition that
his legal mail is now properly delivered to plaintiff to be
opened in his presence.
Isolated incidents of opening legal mail outside of an
inmate’s presence, without any evidence of improper motive, is
nothing more than an assertion of negligence, and is insufficient
to establish a constitutional violation.

See Davis v. Goord, 320

F.3d 346, 351 (2d Cir. 2003)(accidental opening of one piece of
constitutionally protected legal mail did not give rise to a
constitutional claim); Gardner v. Howard, 109 F.3d 427, 430-31
(8th Cir. 1997)(holding that isolated, inadvertent instances of
legal mail being opened outside of an inmate’s presence are not
actionable); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.
1990)(isolated inadvertent incidents of opening inmate’s legal
mail do not state a constitutional claim); Bryant v. Winston, 750
F. Supp. 733, 734 (E.D. Va. 1990)(holding that an isolated
incident of mail mishandling, which is not part of any pattern or
practice, is not actionable under § 1983); Beese v. Liebe, 51

16

Fed. Appx. 979, 981 (7th Cir. 2002)(dismissal of First Amendment
claim that four pieces of legal mail opened outside of inmate’s
presence did not rise to the level of a constitutional violation
upheld where inmate presented no evidence that his mail was not
intentionally opened).
This Court finds, however, that plaintiff has demonstrated
more than a few, isolated instances when his clearly marked legal
mail was opened outside his presence.

Indeed, Thompson submits

evidence of ten separate occasions when his clearly marked legal
mail was opened in a time span of three months.

These

circumstances plainly indicate that defendants’ conduct was not
an “isolated” or “inadvertent” event.7
Accordingly, the Court finds that Thompson has demonstrated
by the facts alleged and evidence submitted on his motion for
partial summary judgment, that the defendants, Administrator
Ricci and L. Jackson, engaged in a pattern or practice of
improper handling of Thompson’s legal mail sufficient to find a
First Amendment violation.

Accordingly, plaintiff’s motion for

partial summary judgment as to this claim against these two
defendants will be granted.
Nevertheless, summary judgment will be granted in favor of
defendants, M. Lincoln, Linda Ellison and F. Bryant, because
plaintiff has shown that these defendants were involved in

7

In contrast, the Court finds that the June 2009 incident
was clearly an isolated occurrence, and thus, does not amount to
a constitutional violation.
17

isolated events (one apiece), which suggests an accidental
opening of one piece of constitutionally protected legal mail
that does not give rise to a constitutional claim.8
Finally, defendants argue that plaintiff failed to exhaust
his administrative remedies as to all of the alleged incidents.
Thompson attaches three administrative grievance forms dated
January 28, 2008, March 9, 2008 and June 10, 2009.

The first two

grievances indicated that this was an ongoing practice occurring
too often to be accidental.

Thompson’s grievance form of March

9, 2008 also states that he had filed numerous other complaints,
but no action was taken.

The Court is satisfied by the evidence

submitted that Thompson has exhausted his administrative remedies
with respect to his claim that his clearly marked legal mail was
8

Defendants also argue that Thompson has not shown that
the individual mail room officers/employees were personally
involved sufficient to support a claim of liability under § 1983.
Defendants contend that plaintiff could not link these defendants
to plaintiff’s legal mail other than by the simple fact that they
worked in the mail room. The Court finds this argument specious.
Thompson has provided written documentation that these
individuals had personal involvement with plaintiff’s legal mail.
This documentation, which displays the signature of these
individual officers/employees, are attached to plaintiff’s
motion. Obviously, plaintiff cannot attest to witnessing these
individuals opening his mail as the very basis of the claim is
that the conduct was performed outside of his presence.
Moreover, defendants have not countered with any plausible
documentation to prove that these individuals were not personally
involved in the opening of plaintiff’s legal mail as alleged.
Accordingly, plaintiff has demonstrated that Jackson is liable
for his wrongful conduct in personally opening Thompson’s legal
mail on numerous occasions, but as to the other officers,
Lincoln, Ellison and Bryant, although Thompson has shown their
personal involvement, they participated in only isolated
incidents, which does not give rise to a constitutional
violation. Therefore, these defendants are entitled to summary
judgment.
18

opened outside of his presence from December 2007 through March
2008, in violation of his First Amendment rights.9

Therefore,

the Court rejects defendants’ non-exhaustion argument and will
deny their motion for summary judgment on this ground.
III.

CONCLUSION

Therefore, for the reasons set forth above, plaintiff’s
motion for partial summary judgment, on the issue of liability,
will be granted in part and denied in part.

Namely, plaintiff’s

motion for partial summary judgment as against defendants
Administrator Ricci and L. Jackson, will be granted on the issue
of liability, but will be denied as to the remaining defendants,
Commissioner Hayman, M. Lincoln, Linda Ellison and F. Bryant.
Defendants’ cross motion to dismiss and/or for summary judgment
will be denied as to defendants Ricci and Jackson, but will be
granted as to defendants Hayman, Lincoln, Ellison and Bryant, and
these defendants will be dismissed from this action accordingly.
An appropriate order follows.

/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: July 6, 2011

9

See fn. 6, supra, with respect to the June 2009 incident.
19