# MCCRIMMON v. JOHNSON

> District Court, D. New Jersey · November 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10274283

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274283

## How later opinions describe it (automated extraction)

- finding two instances of mail interference did not give rise to a claim
- stating that “a few isolated instances of plaintiff’s mail being opened out of his presence” that were “either accidental or the result of unauthorized subordinate conduct . . . were not of constitutional magnitude”

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

:
RASOOL MCCRIMMON, :
: Case No. 18-16281 (BRM) (AME)
Plaintiff, :
:
v. : OPINION
:
STEVEN JOHNSON, et al., :
:
Defendants. :
:

MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion for Summary Judgment filed by Defendants Steven Johnson,
Amy Emrich, and Sean Patterson (collectively, “Defendants”), seeking judgment in their favor of
Plaintiff Rasool McCrimmon’s (“Plaintiff”) § 1983 claims against them. (ECF No. 50.) Plaintiff
filed an opposition (ECF No. 51), Defendants filed a reply (ECF No. 52), and Plaintiff filed a
surreply (ECF No. 53). Having reviewed the parties’ submissions filed in connection with the
Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure
78(b), for the reasons set forth below, and for good cause shown, Defendants’ Motion is
GRANTED.
I. BACKGROUND
Plaintiff, a prisoner currently confined at New Jersey State Prison (“NJSP”), is proceeding
with this civil rights matter seeking relief pursuant to 42 U.S.C. § 1983. On November 19, 2018,
Plaintiff filed his initial civil rights complaint seeking relief pursuant to 42 U.S.C. § 1983. (ECF
No. 1.) Plaintiff subsequently filed an amended complaint. (ECF No. 8.) On May 14, 2019, upon
screening the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court issued an
Opinion and Order dismissing several defendants for lack of allegations of personal involvement
and proceeding the remainder of the amended complaint. (ECF No. 9.)
On September 12, 2019, Plaintiff filed a motion to amend with the now-operative amended
complaint (“Amended Complaint”). (ECF Nos. 24 and 24-3.) On October 9, 2019, the Court

granted Plaintiff’s motion to amend and accepted Plaintiff’s Amended Complaint for filing. (ECF
No. 29.) The Amended Complaint raises one claim under 42 U.S.C. § 1983 for violation of
Plaintiff’s rights under the First Amendment, based on allegations his legal mail was opened
outside of his presence and without his knowledge or consent on four occasions between
November 2016 and August 2018. (See ECF No. 24-3.)
Defendants Johnson, Emrich, and Patterson filed a motion to dismiss the Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 30.) On July 8, 2022,
the Court granted in part and denied in part the motion. (ECF No. 32.) The Court denied
Defendants’ argument that they lacked personal involvement and found “the allegations allege
with enough facial plausibility to show a pattern, practice or custom of opening legal mail” and

state a claim against Defendants based on a supervisory liability theory. (Id. at 7.)
Defendants filed this Motion for Summary on July 8, 2022. (ECF No. 50.) 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 Johnson, Emrich,
and Patterson failed to remedy the constitutional violation.
As required by Local Civil Rule 56.1, Defendants submitted their Statement of Material
Facts Not in Dispute. Plaintiff did not file a responsive statement. Therefore, the Court will gather
the relevant facts from the Amended Complaint, Plaintiff’s deposition testimony and Defendant’s
Local Civil Rule 56.1 statement of undisputed material facts and supporting exhibits. See Athill v.
Speziale, 2009 WL 1874194, at *2 (D.N.J. June 30, 2009) (citing Jordan v. Allgroup Wheaton,
218 F.Supp.2d 643, 646 n.2 (D.N.J.2002)) (“Where a nonmoving pro se litigant fails to file a
responsive Local Civil Rule 56.1 statement of undisputed material facts, a court may draw the
relevant facts underlying the claims from available sources such as the complaint, deposition

testimony, the moving litigant’s Local Civil Rule 56.1 statement of undisputed material facts and
supporting exhibits.”). As the Motion for Summary Judgment involves only the three supervisor
Defendants, the Court only addresses the allegations from the Amended Complaint that are
relevant to Plaintiff’s First Amendment claim against Defendants Johnson, Emrich, and Patterson.
The Amended Complaint alleges that Plaintiff’s legal mail was opened outside of his
presence and without his permission on four separate occasions throughout 2016 and 2017. (See
ECF No. 24-3 at 5-13.)
In the first instance alleged, Plaintiff submits that on November 17, 2016, he placed two
different manila envelopes in the prison mail, both of which contained copies of Plaintiff’s Post
Conviction Relief petition and contained “postage remit[s] marked legal mail.” (ECF No. 24-3 ¶

11.) Plaintiff testified at his deposition that the day after he gave the envelopes to prison mail
officials for mailing, the items were returned to him and “[b]oth of them [were] open. One of them
was actually outside of the envelope.” (See ECF No. 50-6, Plaintiff’s Deposition (“Pl. Dep.”) 16:2-
7, 18:22 to 19:5.)
On November 18, 2016, Plaintiff filed a grievance regarding the incident, stating
“yesterday I sent out 2 manilla folders with legal mail via postage remit checked off legal mail.
Today both envelopes [were] sen[t] back stapled together and one of them was opened with my
legal motion outside of the envelope. In the enveloped was a paper saying it was ‘not approved’
. . . since when do I need approv[]al to send out legal mail and why was it opened and my
paperwork out?” (ECF No. 50-8 at 2.) A response of “your position is noted” was given by Gerard
Doran. (Id.) On December 12, 2016, Plaintiff filed another grievance concerning the November
17, 2016 incident, stating that his First Amendment rights to private legal mail had been violated.
(Id. at 3.) On December 14, 2016, Defendant Johnson responded “you have received an appropriate

response. Mailroom staff will be reminded to look closely for legal mail.” (Id.)
The second instance alleged occurred on August 15, 2017. (ECF No. 24-3 at 7.) Plaintiff
testified that on August 15, 2017, he received correspondence from the Court concerning an
ongoing legal matter and prison staff opened the envelope out of the presence of Plaintiff and
distributed it to Plaintiff with his regular mail. (Pl. Depo., 27:12-24.)
On August 16, 2017, Plaintiff filed an inquiry stating “I got some legal mail that[] was
already opened and stapled back as if it was regular mail. . . . Just a few months ago I had to write
you about legal mail I sen[t] out that was clearly marked legal mail . . . I need this violation of my
rights to stop . . . Why are you [] opening my legal mail . . . This seems to be a continuing thing.”
(ECF No. 50-8 at 4.) Defendant Patterson responded, “all legal mail is processed in accordance

with 10A, verify it was legal mail in reference to 10A.” (Id.) The following day, Plaintiff filed
another inquiry, explaining his housing officer could verify it was legal mail and had it had been
logged in the “book.” (Id. at 5.) Defendant Patterson responded “noted.” (Id.) On August 22, 2017,
Plaintiff filed a third inquiry regarding the incident and Defendant Patterson responded indicating
“mailroom was updated on the procedure for handling legal mail.” (Id. at 6.)
On August 27, 2017, Plaintiff filed a grievance regarding the August 15, 2017, opening of
his legal mail. (Id. at 7.) In October 2017, Defendant Patterson responded, “mailroom staff were
reminded of the procedure to handle legal mail.” (Id.) Plaintiff’s appealed alleging his
“constitutional rights [were] being violated without any hesitation [and] [it] is beyond any mistakes
this is deliberate.” (Id.) On October 16, 2017, Defendant Johnson responded as follows:
Please provide the dates that the legal mail was received outside the
proper channels so we can look at and re-train the officers that would
have processed the mail. We have been training officers to identify
legal mail before it is being place in the machine. If in the future this
happens again, please submit a grievance immediately so the
situation can be addressed immediately.

(Id.) Defendant Emrich closed the appeal. (Id.)
The third alleged incident took place in September 2017. (ECF No. 24-3 at 10.) Plaintiff
again received legal mail that had been opened outside of his presence. (Id., see Pl. Dep. 36:23 to
37:25.) On September 19, 2017, Plaintiff filed an inquiry stating:
Today is Tuesday September 19, 2017, I was given some more legal
mail which was opened . . . it was given to me along wit[h] regular
mail and I did not have to sign for it by SCOR M. Elhady . . . I asked
him to put this in the book for me as well[,] so this should also be
noted in the log book . . . this opening of my legal mail is a
continuous process [you all] keep on opening my legal mail in
violation of my rights.

(ECF No. 50-8 at 8.) Defendant Patterson responded that “mailroom was advised to use more
caution when processing mail.” (Id.) On October 1, 2017, Plaintiff filed a grievance regarding the
incident and Defendant Patterson responded again that “mailroom staff were reminded of the
procedure to handle legal mail.” (Id. at 9.) Plaintiff appealed, and Defendant Johnson responded,
“I want you to file a grievance the day it occurs if it happens again. We will investigate
immediately. We are training and re-emphasizing the legal mail process and importance on a daily
basis.” (Id.)
The fourth and final incident alleged took place on August 14, 2018. (ECF No. 24-3 at 11-
12.) Plaintiff alleges he returned to his cell and “some legal mail which had already been opened
outside of [his] presence was sitting in [his] cell.” (Id. at 11.) The following day Plaintiff filed an
inquiry stating the following:
[Y]esterday 8/14/18 came from my program and some legal mail
was placed in my cell addressed to me and opened already outside
of my presence . . . I told COR J. Egoavil about this and asked could
he document in the logbook. I gave him the envelope and he
acknowledged distributing the mail to me but Sgt. Mendoza told him
not to put it in the log book . . . I explained to the officer that I needed
it to be logged to show proof that i[t] actually happened[.] [H]e said
that Sgt. Mendoza told him to tell me the matter was over and to
lock in my cell. I complied . . . but my legal mail is continuously
being opened outside of my presence in violation of my
constitutional [rights] . . . legal mail should not be opened and
distributed with regular mail[.] [T]his is a continuous pattern that
happened to be at least 4 times in the past 2 years.

(ECF No. 50-8 at 10.) Defendant Patterson responded that “staff have been advised to use extra
caution when processing mail.” (Id.) On September 1, 2018, Plaintiff filed a grievance regarding
this incident. (Id. at 11.) Defendant Patterson responded that “mailroom staff do not intentionally
open legal mail, they have been advised to use extra caution when processing mail to prevent any
mistakes from occurring in the future.” (Id.) Plaintiff appealed, and Defendant Emrich responded
that the “mailroom has provided an adequate response to your inquiry.” (Id.)
During the relevant time period, Defendants worked in supervisory positions at NJSP.
(DSOMF ¶ 5.) Defendant Johnson was the Administrator of NJSP and Defendant Emrich was an
administrator at NJSP. (Id. ¶ 6.) At the times relevant here, Defendant Patterson was the mailroom
sergeant at NJSP. (Id. ¶ 7.)
On July 8, 2022, Defendants filed their Motion for Summary Judgment arguing that (1)
Defendants are entitled to qualified immunity; (2) Plaintiff cannot establish Defendants possessed
sufficient knowledge of or acquiesced to an unlawful pattern or practice; and (3) Plaintiff’s claim
for punitive damages should be dismissed because Defendants did not exhibit reckless or callous
conduct. (ECF No. 50-1.)
II. LEGAL STANDARD
A court shall grant summary judgment under Rule 56 of the Federal Rules of Civil

Procedure “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). The mere existence of an alleged disputed fact is not enough. Rather,
the opposing party must prove that there is a genuine issue of a material fact. Id. An issue of
material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. A fact is material if, under the governing substantive law, a dispute
about the fact might affect the outcome of the lawsuit. Id. Factual disputes that are irrelevant or
unnecessary will not preclude summary judgment. Id.
On a summary judgment motion, the moving party must first show that no genuine issue

of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts
to the nonmoving party to present evidence that a genuine issue of material fact compels a trial.
Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish a
genuine issue of material fact, not just “some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Therefore, the
nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation to defeat
summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.
1999). The Court must, however, consider all facts and their reasonable inferences in the light
most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995).
III. DECISION
Here, Plaintiff’s First Amendment claim arises out of the alleged opening of his legal mail

out of his presence without his permission. Specifically, Plaintiff alleges his legal mail was opened
out of his presence four times over a twenty-one-month period. Defendants contend they are
entitled to qualified immunity because settled law does not clearly establish that four instances of
the opening of legal mail over a twenty-one-month period amounts to a pattern or practice of
opening Plaintiff’s legal mail outside of his presence in violation of the First Amendment.
New Jersey Administrative Code Title 10A, Chapter 18 (Mail, Visits and Telephone),
Subchapter 3 (Legal Correspondence) governs the processing of legal mail at New Jersey State
Prison. (ECF No. 50-2, Defendants’ Statement of Material Facts (“DSOMF”) ¶ 9, citing N.J.A.C.
10A:18-3.1 to -3.13.) The New Jersey Administrative Code provides that “[i]ncoming legal
correspondence shall be opened and inspected only in the presence of the inmate to whom it is

addressed,” and that “[i]ncoming legal correspondence shall not be read or copied.” (Id. ¶ 10,
quoting N.J.A.C. 10A:18-3.4(b).) The Administrative Code does not provide for opening or
inspection of legal mail outside of the relevant inmate’s presence. (Id. ¶ 11.)
A plaintiff may state a First Amendment claim against a defendant who read his legal
materials if he alleges that there was a pattern or practice of opening and reading his legal materials
outside of his presence. See Schreane v. Holt, 482 F. App’x 684, 676-77 (3d Cir. 2012) (“Prisoners
may establish a violation of the First Amendment without establishing actual injury where there is
a pattern and practice of opening properly marked incoming legal mail outside the prisoner’s
presence.”) (citing Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006)).
Plaintiff’s claims against moving Defendants are based on their positions as administrators
and as a mailroom sergeant. A § 1983 plaintiff cannot rely solely on a respondeat superior theory
to establish liability. See Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005) (“Section
1983 liability cannot be found solely on the basis of respondeat superior.”). Instead, a plaintiff

must allege that a supervisor had a personal involvement in the alleged wrongs. See Rode v.
Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher,
423 F.3d 347, 353 (3d Cir. 2005) (citation omitted). “To establish knowledge and acquiescence of
a subordinate’s misconduct, a plaintiff must allege the defendant’s (1) contemporaneous
knowledge of the offending incident or knowledge of similar incidents in the past, and (2) actions
or inactions which communicated approval of the subordinate’s behavior.” Broadwater v. Fow,
945 F. Supp. 2d 574, 588 (M.D. Pa. 2013) (citing C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d
Cir. 2000)).
Qualified immunity protects government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There is
a two-step inquiry into whether qualified immunity applies: (1) whether the official’s conduct
violated a constitutional or federal right; and (2) whether the right at issue was clearly established.
Saucier v. Katz, 533 U.S. 194, 201 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223
(2009). The court may grant qualified immunity on either of the two prongs. See, e.g., Pearson,
555 U.S. at 243-245 (evaluating only Saucier’s second prong and holding that law enforcement
officers were entitled to qualified immunity because the unlawfulness of their conduct was not
clearly established).
Defendants argue in their Motion for Summary Judgment that there is no precedent that
clearly establishes that four instances of prison staff opening Plaintiff’s legal mail over a twenty-
one-month time period amounts to an unlawful pattern or practice. As such, the Court will start by
addressing the second prong of Saucier.

“A clearly established right is one that is sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Kane v. Barger, 902 F.3d 185,
194 (3d Cir. 2018) (citations omitted). To determine if the “right at issue” was “clearly established”
at the time of the alleged misconduct, the right at issue must be defined “at the appropriate level
of specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012). However, “it need not be the
case that the exact conduct has previously been held unlawful so long as the contours of the right
are sufficiently clear.” Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017); see also Hope v.
Pelzer, 536 U.S. 730, 741 (2002).
If the scope of a particular constitutional right is “highly fact-specific,” it can be reasonable
for government officials to err in believing that their conduct comports with the law. Marcavage

v. Nat’l Park Serv., 666 F.3d 856, 859 (3d Cir. 2012). Officials “should not be stripped of qualified
immunity simply because this belief turned out to be mistaken.” Id.
Here, Defendants argue that they are entitled to qualified immunity because it is not clearly
established that four sporadic occasions from November 2016 to August 2018 of the opening of
Plaintiff’s legal mail outside of his presence amounts to an unlawful pattern or practice. Defendants
argue that although Plaintiff asserts four instances of legal mail interference, the evidence of record
shows each supervisor Defendant were aware of only two or three of the instances. Defendants
rely on Plaintiff’s inquiry and grievance forms and submit that Defendant Johnson responded to
Plaintiff’s inquiries and grievances related to the November 2016, August 2017, and September
2017 instances only. (ECF No. 50-1, at 14-15 (citing DSOMF ¶¶ 16, 25, 29).) Defendants submit
Defendant Patterson responded to Plaintiff’s inquiries and grievances related to the August 2017,
September 2017, and August 2018 instances. (Id. (citing DSOMF ¶¶ 23, 27-28, 33).) Finally,
Defendants submit Defendant Emrich is only listed as having responded to Plaintiff’s inquires and

grievances regarding the August 2017 and August 2018 instances. (Id. (citing DSOMF ¶¶ 25, 34).)
Courts within the Third Circuit and other Circuits have declined to set a specific number
of instances of interference with legal mail that would be presumed to be a pattern and practice
that rises to the level of a constitutional violation, and therefore, decisions vary in the number of
instances that constitute a violation. See, e.g., Taylor v. Oney, 196 F. App’x 126 (3d Cir. 2006)
(not precedential) (holding that complaint stated a potential First Amendment claim where plaintiff
alleged legal mail was opened outside of his presence on eight occasions over a four year period);
see also Rogers v. McKishen, No. 13-3771, 2018 WL 3201784, at *7 (D.N.J. June 29, 2018)
(noting five instances of opening of legal mail may be enough to establish a pattern or practices);
see Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009) (“Two or three pieces of mail

opened in an arbitrary or capricious way suffice to state a claim.”).
However, several courts have also found that mere isolated incidents of opening legal mail
outside of an inmate’s presence, without evidence of an improper motive, is insufficient to
establish a First Amendment violation. See, e.g., Nixon v. Sec’y Pa. Dep’t of Corr., 501 F. App’x
176, 178 (3d Cir. 2012) (“[T]he District Court correctly determined that Nixon’s claim alleging a
single, isolated interference with his personal mail was insufficient to constitute a First
Amendment violation.”); Hale v. Pa Dept. of Corr., No. 07-0345, 2010 WL 3791833, at *3 (M.D.
Pa. Sept. 16, 2010) (“[O]pening [court mail] outside [prisoner’s] presence on two occasions . . .
does not demonstrate a pattern or practice of improper handling of his legal mail sufficient to find
a First Amendment violation . . . . 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.”); Davis v. Goord, 320 F.3d
346, 351 (2d Cir. 2003) (finding two instances of mail interference did not give rise to a claim);

Cancel v. Goord, No. 00-2042, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001) (dismissing
claim where only two incidents of tampering alleged and no other indications of a continuing
practice); Beese v. Liebe, 51 F. App’x 979, 981 (7th Cir. 2002) (dismissing First Amendment claim
based on allegations that four pieces of legal mail had been opened outside of inmate’s presence,
since the inmate presented no evidence that his legal mail had been intentionally opened, and where
the inmate-plaintiff merely speculated that the prison official intended to do so); Gardner v.
Howard, 109 F.3d 427, 430-31 (8th Cir. 1997) (finding that isolated and inadvertent mishandling
of legal mail not actionable); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (same); Buie
v. Jones, 717 F.2d 925, 926 (4th Cir. 1983) (stating that “a few isolated instances of plaintiff’s
mail being opened out of his presence” that were “either accidental or the result of unauthorized

subordinate conduct . . . were not of constitutional magnitude”) .
Here, the evidence of record supports that each moving Defendant was aware of less than
four occasions of interference with Plaintiff’s legal mail. The instances took place over nearly a
two-year time period. There have been no facts submitted to show whether these instances were
done intentionally or inadvertently, or if the mail opening was done by one individual or different
individuals.
Based on the above, there is no clear precedent regarding how many instances of
interference with legal mail constitutes a custom or practice that would amount to a First
Amendment violation. Plaintiff does not cite, nor has the Court found, a published decision from
the Supreme Court or the Third Circuit Court of Appeals holding that two, three, or even four
instances of interference with legal mail over a nearly two-year period shows a custom or practice
that violates the First Amendment. As such, is it not so clearly established that a reasonable person
would have known that these sporadic instances showed a custom or policy that was violating

Plaintiff’s First Amendment rights. Defendants are entitled to qualified immunity and their Motion
for Summary Judgment is granted.1
IV. CONCLUSION
For the reasons expressed above, Defendants’ Motion for Summary Judgment is
GRANTED. (ECF No. 50.) Accordingly, Plaintiff’s Amended Complaint is dismissed against
Defendants Johnson, Patterson, and Emrich. An appropriate order follows.
Dated: November 30, 2022
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

1 Because the Court has found moving Defendants are entitled to qualified immunity, it is
unnecessary to address Defendants’ remaining arguments.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274283. Public record. Not legal advice.