“[A] plaintiff could not hold an officer liable because of his membership in a group without a showing of individual participation in the unlawful conduct.”
How later courts described this case
- “[A] plaintiff could not hold an officer liable because of his membership in a group without a showing of individual participation in the unlawful conduct.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
KASEEM ALI-X, :
:
Plaintiff, : Civ. No. 12-3147 (NLH) (KMW)
:
v. : OPINION
:
:
:
:
DAVID MCKISHEN, et al,` :
:
:
Defendants. :
______________________________:
APPEARANCES:
Kaseem Ali-X, 000422722B
New Jersey State Prison
PO Box 861
Trenton, NJ 08625,
Plaintiff pro se
Gurbir S. Grewal, Attorney General of New Jersey
Kai W. Marshall-Otto, Deputy Attorney General
R.J. Hughes Justice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
HILLMAN, District Judge
Defendants R. Ayars, E. Brainard, R. Charlesworth, K.
Davis, P. Davis, Z. Ennals, J. Ginyard, C. Jones, J. Kilman, B.
Malpica, M. Maniscalo, B. McIver, T. Miller, H. Ortiz, C.
Pierce, D. Ruiz, J. Thompson, L. Vastano, D. Wells, and C.
Williams (“the mailroom defendants”) move for summary judgment
on Plaintiff Kaseem Ali-X’s amended complaint alleging that they
opened his legal mail. Defendants Christopher Holmes and David
McKishen likewise move for summary judgment on Plaintiff’s claim
that they failed to supervise their subordinates and stop the
alleged infringement on Plaintiff’s First Amendment rights.
At issue is Defendants’ Motion for Summary Judgment, which
is ripe for adjudication. See ECF No. 89. The Court has
subject-matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331, as this case concerns a federal question. The Court
finds that no reasonable jury could conclude that Plaintiff has
met his burden of proof on showing the mailroom defendants were
personally involved in any constitutional violation.
Additionally, Holmes and McKishen are entitled to qualified
immunity. For the reasons that follow, the Court will grant the
Motion.
I. BACKGROUND
A. Undisputed Facts
Plaintiff was incarcerated in South Woods State Prison,
Bridgeton, New Jersey from approximately May 2010 to September
2011. ECF No. 96 at 3 ¶ 1. He is presently confined in New
Jersey State Prison in Trenton. Id. ¶ 1.
Plaintiff alleges that legal mail was opened outside of his
presence on May 24, 2010; June 12, 2010; July 9, 2010; July 23,
2010; August 13, 2010; March 27, 2011; July 11, 2011; September
27, 2011; and September 30, 2011. Id. at 4. Plaintiff alleges
the mailroom defendants opened his legal mail on one or more of
those dates. Id. ¶ 5. Plaintiff alleges McKishen and Holmes
failed to correct the violations by the mailroom defendants.
Id. at 11 ¶¶ 21-22.
Plaintiff filed an amended complaint on May 9, 2013. ECF
No. 11. On September 28, 2016, the Court permitted Plaintiff to
substitute the names of the mailroom defendants for the John Doe
mailroom employees. ECF No. 61 (granting motion with mailroom
defendants’ names at ECF No. 57).
II. STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,
depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(c). A disputed
fact is material when it could affect the outcome of the suit
under the governing substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party. Id. at 250. The Court should view the
facts in the light most favorable to the non-moving party and
make all reasonable inferences in that party’s favor. Hugh v.
Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact. See Celotex Corp.
v. Carrett, 477 U.S. 317, 323 (1986). Once the moving party has
satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.” Anderson, 477 U.S. at 257.
“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
If the court determines that “the record taken as a whole
could not lead a rational trier or fact to find for the non-
moving party, there is no ‘genuine issue for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 289 (1968)). Rule 56 mandates the entry of
summary judgment against the party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial. Celotex Corp., 477 U.S. at 322.
III. DISCUSSION
The only remaining claims in the amended complaint are
Plaintiff’s assertions that the mailroom defendants opened his
legal mail outside of his presence and that Defendants McKishen
and Holmes failed to remedy the constitutional violation.
The Constitution permits prisons to restrict prisoners’
right to send and receive mail for legitimate penological
interests. Turner v. Safley, 482 U.S. 78, 89 (1987). However,
“prisoners, by virtue of their incarceration, ‘do not forfeit
their First Amendment right to use of the mails,’ and . . . a
‘pattern and practice of opening properly marked incoming
[legal] mail outside an inmate’s presence infringes
communication protected by the right to free speech.’” Jones v.
Brown, 461 F.3d 353, 358 (3d Cir. 2006) (quoting Bieregu v.
Reno, 59 F.3d 1445, 1452 (3d Cir. 1995)) (alteration in
original). Prisoners’ legal mail is accorded heightened
protection because “opening properly marked court mail . . .
chills protected expression and may inhibit the inmate’s ability
to speak, protest, and complain openly, directly, and without
reservation with the court.” Id. at 358–59 (internal quotation
marks omitted).
A. Personal Involvement
Defendants argue that Plaintiff cannot meet his burden of
proof on the mailroom defendants’ personal involvement in the
alleged violations.1 The Court is constrained to agree. The
1 Defendants also argue that Plaintiff failed to exhaust his
administrative remedies. The Court does not address that
Third Circuit has recently emphasized that “in the face of
motion for summary judgment, a § 1983 plaintiff must produce
evidence supporting each individual defendant's personal
involvement in the alleged violation to bring that defendant to
trial.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 291 (3d
Cir. 2018). Plaintiff’s evidence against the mailroom
defendants consists of the fact that they were working in the
mailroom on the dates he alleges his legal mail was opened. See
ECF No. 96 at 9 ¶ 15 (stating the mailroom defendants were named
because “Defendant Christopher Holmes provided me the names of
his subordinates who worked on the specific days that my legal
mail was unlawfully opened outside of my presence”).
Plaintiff cannot meet his burden of proof and survive
summary judgment merely by showing that the mailroom defendants
were present in the mailroom on the days in question; he must be
able to present some evidence beyond a scintilla that each named
individual was involved in opening his legal mail. “‘Each
Government official . . . is only liable for his or her own
misconduct.’ And, a fortiori, if entities and supervisors may
not be vicariously liable under § 1983 for the constitutional
violation of a given individual, neither may that individual's
cohorts who happen to be in the immediate vicinity.” Jutrowski,
argument as it finds that Plaintiff cannot meet his burden of
proof on summary judgment.
904 F.3d at 290 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009)) (emphasis in original); see also Jones v. Williams, 297
F.3d 930, 935 (9th Cir. 2002) (“[A] plaintiff could not hold an
officer liable because of his membership in a group without a
showing of individual participation in the unlawful conduct.”).
The Court must grant summary judgment against any party
“who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiff
bears the burden of proof at trial, and he has not presented any
evidence that the mailroom defendants were involved in the
opening of or tampering with his legal mail. He cannot rest on
mere allegations and instead must present actual evidence that
creates a genuine issue as to a material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130–31 (3d Cir. 1995). “[U]nsupported allegations . . . and
pleadings are insufficient to repel summary judgment.” Schoch
v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir. 1990).
The mailroom defendants are entitled to judgment as a
matter of law.
B. Qualified Immunity
Turning to Plaintiff’s claims that Defendants McKishen and
Holmes failed to remedy the constitutional violations, the Court
finds that Defendants McKishen and Holmes are entitled to
qualified immunity.
“[O]fficers are entitled to qualified immunity under § 1983
unless (1) they violated a federal statutory or constitutional
right, and (2) the unlawfulness of their conduct was ‘clearly
established at the time.’” D.C. v. Wesby, 138 S. Ct. 577, 589
(2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
The first prong of the analysis “asks whether the facts, [t]aken
in the light most favorable to the party asserting the injury,
... show the officer’s conduct violated a [federal] right[.]”
Tolan v. Cotton, 572 U.S. 650, 655-56 (2014) (internal quotation
marks and citations omitted) (alterations and omissions in
original). “The second prong of the qualified-immunity analysis
asks whether the right in question was ‘clearly established’ at
the time of the violation.” Id. at 656 (internal citation and
quotation marks omitted). “Courts have discretion to decide the
order in which to engage these two prongs.” Id.
The Court finds that Plaintiff has not proven a violation
of a constitutional right. “Under § 1983, ‘a supervisor may be
personally liable . . . if he or she participated in violating
the plaintiff’s rights, directed others to violate them, or, as
the person in charge, had knowledge of and acquiesced in his
subordinates’ violations.’” Diaz v. Palakovich, 448 F. App’x
211, 215 (3d Cir. 2011) (quoting Santiago v. Warminster Twp.,
629 F.3d 121, 129 & n.5 (3d Cir. 2010) (omission in original)).
See also A.M. ex rel. J.M.K. v. Luzerne Cnty., 372 F.3d 572, 586
(3d Cir. 2004).
Plaintiff alleges that his legal mail was opened without
his consent and outside of his presence on nine occasions.
However, Plaintiff has not provided the Court with copies of the
mail.2 In response to Plaintiff’s July 11, 2011 grievance about
his allegedly opened mail, McKishen responded “Legal mail is
defined by [N.J.A.C.] 10A:18-3.3 the return address must be
obviously from a legal source. During our interview you were
unable to provide any evidence.” ECF No. 89-4 at 80. McKishen
wrote on December 12, 2011 in response to another grievance:
“Without the Envelope we can not determine if the letter was
legal or opened outside of your presence. Staff have been
instructed to be diligent in identifying and properly sorting
2 Plaintiff’s opposition states that he “sent both the Court and
counsel for the Defendants copies,” ECF No. 96 at 8 ¶ 13, but he
does not identify when in the seven-year history of this case
these copies were sent or what to which documents they were
attached. “[S]ummary judgment is essentially ‘put up or shut
up’ time for the non-moving party . . . .” Berckeley Inv. Grp.,
Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). It is not
incumbent on the Court to search the docket looking for the
parties’ evidence. See Fed. R. Civ. P. 56(c)(3) (“The court
need consider only the cited materials . . . .”).
legal mail.” Id. at 81. There is at most evidence of a single
violation on July 11, 2011 as witnessed by Lee Dixon,
Plaintiff’s cellmate. See ECF No. 96 at 24.3 Isolated incidents
of interference with legal mail are not actionable under the
First Amendment absent evidence of an improper motive or
evidence of injury. See, e.g., Nixon v. Sec’y Pa. Dep’t of
Corr., 501 F. App’x 176, 178 (3d Cir. 2012).
Because Plaintiff has not provided evidence of the mailroom
defendants’ individual liability or evidence of a pattern of
constitutional violations for opening clearly marked legal mail,
he has not proven the liability of McKishen or Holmes as
supervisors. McKishen and Holmes are therefore entitled to
qualified immunity.
IV. CONCLUSION
For the reasons set forth above, Defendants’ motion for
summary judgment is granted. An appropriate Order follows.
Dated: December 10, 2019 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.
3 Mr. Dixon also indicated he saw opened legal mail on April 2,
2011, but this date is not among the dates listed in the
complaint.