THOMPSON v. FERGUSON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILLIP A. THOMPSON, III, :

Plaintiff, : CIVIL ACTION

:

v. :

:

TAMMY FERGUSON, et al., : No. 19-4580

Defendants. :

MEMORANDUM

Schiller, J. December 31, 2020

Phillip A. Thompson, III, who is currently is incarcerated, sues Defendants (1) Tammy

Ferguson, Superintendent of SCI Phoenix, (2) Mandy Sipple, Deputy Superintendent of SCI

Phoenix, (3) John Wetzel, Pennsylvania Department of Corrections (DOC) Secretary, and (4)

Smart Communications for violations of 42 U.S.C. § 1983. Before the Court is Defendants

Ferguson, Sipple, and Wetzel’s motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the

reasons that follow, the motion will be granted in part and denied in part. However, Defendants

are entitled to qualified immunity. Therefore, the law requires that the Complaint is dismissed with

prejudice.

I. FACTUAL BACKGROUND

Thompson asserts that while he was incarcerated at SCI Phoenix, the Defendants opened,

photocopied, and retained his mail from the Pennsylvania Superior Court and county District

Attorney’s Offices between October 2018 and February 2019 in a manner that violated his

constitutional rights to freedom of speech and access to courts. Thompson’s mail was handled

pursuant to a new mail policy that the Pennsylvania DOC instituted in October 2018. The portion

of that policy pertaining to legal mail was rescinded in April 2019. Thompson’s claims pertain to

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the DOC’s application of this now-defunct mail policy.

A. Procedural History

Thompson originally filed the operative Amended Complaint (“Compl.”, Document No.

2) as an Amended Complaint in a previous civil action on September 4, 2019. In the previous

action, this Court dismissed all claims in the Amended Complaint related to destruction of

Thompson’s personal property during his transfer to SCI Phoenix. Thompson v. Ferguson, Civ. A.

No. 19-3455, 2019 WL 4858270 (E.D. Pa. Oct. 2, 2019).1 Because Thompson’s claims about his

legal mail were unrelated to his claims about destruction of his property, the Court severed the

legal mail claims and directed the Clerk of Court to open a new lawsuit—this civil action—using

the current Amended Complaint as an opening document, and naming as defendants Ferguson,

Sipple, Wetzel, and Smart Communications. When dismissing the prior action, the Court noted

that if Thompson proceeded in forma pauperis here, his claims would be subject to screening under

28 U.S.C. § 1915(e)(2)(B). The Court granted Thompson’s motion for leave to proceed in forma

pauperis in this action, and the Amended Complaint was deemed filed. Defendants Ferguson,

Sipple, and Wetzel now move to dismiss the Amended Complaint, and Thompson opposes their

motion. Defendant Smart Communications has not yet been served and has not appeared in this

action.

B. The Rescinded DOC Legal Mail Policy

Thompson alleges that the DOC’s “new mail policy” violated his constitutional rights.

1 Thompson argues these claims again in his Opposition to the Motion to Dismiss in this

action. The Court will not consider the claims related to destruction of his property in this action

because they have already been dismissed in another action, which has preclusive effect. Allen v.

McCurry, 449 U.S. 90, 94 (1980) (“a final judgment on the merits of an action precludes the parties

or their privies from relitigating issues that were or could have been raised in that action.”).

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(Compl. ¶ 33.) The new policy Thompson complains of was a change to the DOC’s Inmate Mail

and Incoming Publications Policy, DC-ADM 803, effective October 3, 2018.2 Thompson does not

plead the specifics of this DOC mail policy, but the Court takes judicial notice of this policy as a

matter of public record. Brock v. Corr. Emergency Response Team, Civ. A. No. 18-3814, 2020

WL 668271, at *5 n.5 (E.D. Pa. Feb. 10, 2020) (taking judicial notice of Department of Corrections

policy); Leonhauser v. Long, Civ. A. No. 11-241, 2012 WL 398642, at *3 n.2 (M.D. Pa. Jan. 4,

2012) (same); Schott v. Doe, Civ. A. No. 05-1730, 2007 WL 539645, at *7 (W.D. Pa. Feb. 15,

2007) (same).

The DC-ADM 803 effective October 3, 2018 (“2018 DC-ADM 803”) provided that non-

legal mail3 to an inmate was to be addressed and sent to Smart Communications, the Department’s

contracted mail processing center in Florida, whereas incoming legal mail was to be sent where

the inmate was housed. See DC-ADM 803 (Effective Date Oct. 3, 2018) at 1-1.4 Incoming legal

mail was defined as: (1) mail from an inmate’s attorney that was hand delivered to a facility or

identified with a control number, (2) mail from a court, and (3) mail from an elected or appointed

2 The DOC’s core policies are referred to as DC-ADMs, and the policy regarding Inmate

Mail and Incoming Publications Policy is DC-ADM 803. Understanding DOC Administrative

Policies, Pa. Dep’t of Corrections, www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/

Understanding-DOC-Administrative-Policies.pdf (last visited Dec. 28, 2020). The current version

of DC-ADM 803 is available on the DOC’s website. DC-ADM 803 (Effective Date Aug. 10, 2020),

Pa. Dep’t of Corrections, www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20

Inmate%20Mail%20and%20Incoming%20Publications.pdf (last visited Dec. 28, 2020).

3 The policy refers to “privileged correspondence” and “non-privileged correspondence.”

For purposes of this opinion, the Court refers to this distinction as legal mail and non-legal mail.

4 DC-ADM 803 (Effective Date Oct. 3, 2018) is not available on the DOC’s website, but it

is publicly available in court filings from a 2018 lawsuit that challenged the policy. Exhibit 4 to

Complaint, Pa. Institutional Law Project v. Wetzel, Civ. A. No. 18-2100 (M.D. Pa. Oct. 30, 2018),

ECF No. 1-5. The DOC did not dispute the authenticity of the version of DC-ADM 803 (Effective

Date Oct. 3, 2018) filed in that action. See Answer to Complaint ¶¶ 63-65, 70-73, Pa. Institutional

Law Project v. Wetzel, Civ. A. No. 18-2100 (M.D. Pa. Nov. 16, 2018), ECF No. 19.

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federal, state, or local official who had sought and obtained a control number. Id. at Glossary of

Terms at 4. The policy explicitly noted that “[n]ot all correspondence between an inmate and

elected or appointed federal, state, or local official will require privileged correspondence

processing. Control numbers will only be issued when the underlying matter involves matters

related to a confidential investigation process or similar concerns.” Id. For non-legal mail, Smart

Communications had to open and scan the mail and electronically transmit scanned copies to

prison facility staff. Id. at 1-8. Prison facility staff were to print paper copies of incoming non-

legal mail and deliver the copies to inmate recipients. Id. at 1-9. Smart Communications was to

securely maintain original incoming correspondence and scanned electronic copies for 45 days and

then destroy the original and electronic copies. Id. at 1-8.

The DOC procedure for handling incoming legal mail was as follows: (1) mail was to be

opened and inspected for contraband in the inmate’s presence; (2) mail was to be photocopied in

the inmate’s presence; (3) photocopies of the contents of mail were to be delivered to the inmate;

(4) mail was to be noted on a legal mail log, which the inmate was to sign; (5) original mail was

to be sealed in an opaque envelope secured with evidence tape in the inmate’s presence; (6) the

sealed envelope containing the original mail was to be deposited into a locked and secured

receptacle provided by a vendor; (7) only the vendor was to be able to unlock or access the

receptacle; (8) the activity of DOC staff and the inmate during this process were to be video

recorded, but the contents of the mail was not to be recorded; (9) the vendor was to securely

maintain the original mail and video recording for 45 days and then securely destroy the original

mail and video recording; and (10) before the mail’s destruction, an inmate could make a request

to access the original mail, in accordance with this process, or to preserve the mail from destruction

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pursuant to a grievance. Id. at 1-12–1-13.

Shortly after the DOC’s new mail policy took effect, several groups of attorneys

representing Pennsylvania prisoners challenged the constitutionality of the new policy for handling

incoming legal mail. Pursuant to a settlement agreement approved by the district court, the DOC

changed its policy for handling inmates’ incoming legal mail. The DOC agreed to cease

photocopying all legal mail as of April 5, 2019.

C. Thompson’s Legal Mail

Thompson’s claims pertain to three pieces of mail he received from the Pennsylvania

Superior Court dated October 24, 2018, November 21, 2018, and December 26, 2018, a piece of

mail from the Montgomery County District Attorney’s Office dated January 9, 2019, and a piece

of mail from the Delaware County District Attorney’s Office Law & Appeals Division dated

February 5, 2019. (Compl. ¶ 21; Compl. Ex. K at 72-75.) Thompson makes two separate claims

about these pieces of mail he received between October 2018 and February 2019.

First, Thompson states his mail had to be sent through Smart Communications, where it

was opened outside of his presence, copied, and placed in a database for seven years before being

destroyed. (Compl. ¶¶ 31-33.) He further contends that Smart Communications did not provide

him the original mail. (Id. ¶ 32.) Thompson’s second allegation pertains specifically to his mail

from the Pennsylvania Superior Court. This allegation is presented in Thompson’s Administrative

Grievance, which is attached to the Amended Complaint. (Compl. Ex. H at 62.) Thompson states

that his mail from the Superior Court was opened in front of him, photocopied, and the original

mail was withheld from him. (Id.) He further alleges that he “was not allowed to see or touch the

Legal mail sent to him by the PA Superior Court.” (Id.)

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II. STANDARD OF REVIEW

On a motion to dismiss, the Court must “must accept all factual allegations in the complaint

as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine

whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer

v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). A pro se complaint is “to be liberally construed,”

and “must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson

v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic documents

if the complainant’s claims are based upon these documents.” Mayer, 605 F.3d at 230. “Courts

have defined a public record, for purposes of what properly may be considered on a motion to

dismiss, to include…letter decisions of government agencies…and published reports of

administrative bodies[.]” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,

1197 (3d Cir. 1993) (internal citations omitted). Here, the Court considers the Amended

Complaint, exhibits, and the 2018 DC-ADM 803, which it relies upon as both a matter of public

record and an indisputably authentic document upon which Thompson bases his claims.

When a prisoner’s complaint is filed in forma pauperis, seeks redress from a governmental

entity or an officer or employee of a governmental entity, or brings claims with respect to prison

conditions under Federal law, a district court “shall” dismiss the complaint sua sponte if the action

is “frivolous,” “malicious,” “fails to state a claim on which relief may be granted,” or “seeks

monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); 28

U.S.C. § 1915A(b); 42 U.S.C. § 1997e(c)(1). “The court’s obligation to dismiss a complaint under

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these screening provisions is not excused even after defendants have filed a dispositive motion.”

Holbrook v. Jellen, Civ. A. No. 14-28, 2017 WL 4401897, at *5 (M.D. Pa. Mar. 8, 2017), report

and recommendation adopted, 2017 WL 4387111 (M.D. Pa. Oct. 3, 2017). A plaintiff whose

complaint fails to state a cause of action is entitled to amend the complaint unless doing so would

be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

III. DISCUSSION

As a threshold matter, the Court will dispense of moving Defendants’ cursory argument

seeking to dismiss Thompson’s claims as moot. Defendants argue, without any citation to legal

authority, that “[b]ecause that mail policy is no longer in effect, the claim is moot.” (Def. Mem. at

5.) Defendants are wrong for two reasons.

First, a claim for damages almost always survives even if some forms of requested relief

become moot. Doe v. Delie, 257 F.3d 309, 314 (3d Cir. 2001). The Amended Complaint does not

clearly specify what relief Plaintiff seeks for his mail-related claims (see Compl. at 20-21), but the

exhibits clarify that Thompson seeks compensatory and punitive damages for these claims.

(Compl. Ex. H at 62; Compl. Ex. J at 69.)

Second, the claims have not become moot during the pendency of this action. The central

question of mootness is whether a change in the circumstances that prevailed at the beginning of

the litigation renders the case no longer justiciable. Jersey Cent. Power & Light Co. v. State of

N.J., 772 F.2d 35, 39 (3d Cir. 1985). The DOC rescinded the relevant legal mail policy in April

2019, nearly five months before Thompson first asserted these claims in the previous action. There

has been no change in circumstances during the course of the litigation that could render the case

moot. Defendants’ mootness argument is unavailing, so the Court now turns to the merits of

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Thompson’s claims.

A. Section 1983 Liability

Section 1983 provides a cause of action against any person who, acting under color of state

law, deprives another of his or her federal rights. 42 U.S.C. § 1983. “[G]enerally, a public

employee acts under color of state law while acting in his official capacity or while exercising his

responsibilities pursuant to state law.” West v. Atkins, 487 U.S. 42, 50 (1988). Thompson brings

his claims pursuant to 42 U.S.C. § 1983 against DOC Superintendent Ferguson, Deputy

Superintendent Sipple, and Secretary Wetzel (“DOC Defendants”) in their individual capacities

and against Smart Communications as a DOC contractor. (Compl. at 2-4, ¶ 29.)

Government entities and supervisors cannot be held responsible under § 1983 for the acts

of their employees under the traditional principles of respondeat superior or vicarious liability.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,

583 (3d Cir. 2003) (citing Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978)).

A defendant in a civil rights action “cannot be held responsible for a constitutional violation which

he or she neither participated in nor approved[.]” Baraka v. McGreevey, 481 F.3d 187, 210 (3d

Cir. 2007) (quoting C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000)). However,

individual policymakers can be liable for their own actions in adopting and maintaining a practice,

policy, or custom that causes constitutional violations with deliberate indifference to the

consequences. See Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 724-25 (3d Cir. 1989). A

supervisor may also “be personally liable under § 1983 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.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,

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372 F.3d 572, 586 (3d Cir. 2004).

None of the DOC Defendants raise their lack of individual involvement in the new mail

policy in their motion to dismiss. Interpreting the pleadings liberally, the Court finds that the

Amended Complaint plausibly states a claim against the DOC Defendants for approving and

applying the new mail policy that violated Thompson’s constitutional rights. (Compl. ¶¶ 28-29,

33; Ex. J at 69.) Defendant Ferguson also authored SCI Phoenix’s denial of Thompson’s grievance

concerning his legal mail. (Ex. I at 67.) This is sufficient personal involvement in the alleged

violation to state a claim for relief. See Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003).

Smart Communications is not a governmental agency or employee, but Plaintiff alleges it

was directly involved in handling his mail. Section 1983 liability is not limited solely to public

employees. “Anyone whose conduct is ‘fairly attributable to the State’ can be sued as a state actor

under § 1983.” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937 (1982)). To constitute conduct fairly attributable to the State, “the deprivation

must be caused by the exercise of some right or privilege created by the State or by a rule of

conduct imposed by the [S]tate or by a person for whom the State is responsible[,]” and “the party

charged with the deprivation must be a person who may fairly be said to be a state actor.” Lugar,

457 U.S. at 937. A state actor includes state officials, anyone who “has acted together with or has

obtained significant aid from state officials,” or whose “conduct is otherwise chargeable to the

State.” Id. Smart Communications is named as a defendant for its role as a partner of the DOC

Defendants, and its actions of opening, copying, and electronically storing Thompson’s mail.

(Compl. ¶¶ 31-33.) Although Smart Communications is not a government entity, Thompson has

plausibly alleged that it may be sued as a state actor under § 1983 because it acted together with

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the DOC in implementing the mail policy. Therefore, the Court will consider the merits of

Thompson’s alleged constitutional harms.

B. Right to Access Courts

Thompson claims the opening and copying of his legal mail pursuant to the DOC’s new

mail policy violated his First, Sixth, and Fourteenth Amendment rights to access to courts. (See

Compl. ¶¶ 21, 28-34.) Thompson alleges that his legal mail from the Pennsylvania Superior Court

and District Attorney’s Offices between October 2018 and February 2019 pertained to the appeal

of his criminal conviction and his request for a criminal investigation into the destruction of his

property at SCI Phoenix. (Compl. ¶ 21.) His access to courts claim must be dismissed because

Thompson has not alleged actual injury to any legal claims.

Prisoners have a well-established constitutional right of access to the courts. Lewis v.

Casey, 518 U.S. 343, 350 (1996). A claim for denial of access to courts requires a showing of

actual injury, meaning that a prisoner’s “nonfrivolous legal claim” challenging his sentence or

conditions of confinement was frustrated or impeded. Id. at 353-55; Monroe v. Beard, 536 F.3d

198, 205 (3d Cir. 2008). A prisoner alleging interference with his legal mail must demonstrate that

the interference hindered his efforts to pursue a legal claim to give rise to a claim for denial of

access to the courts. Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997).

In the prior action, which involved the same pleadings, the Court dismissed an access to

courts claim premised on the destruction of Thompson’s property during his transfer to SCI

Phoenix because Thompson failed to allege actual injury to his criminal appeal. Thompson, 2019

WL 4858270, at *5. Similarly, Thompson has failed to state an access to courts claim premised on

interference with his legal mail.

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The Amended Complaint does not plausibly allege actual injury to Thompson’s criminal

appeal. The Delaware County Court of Common Pleas dismissed Thompson’s third Post

Conviction Relief Act (PCRA) petition in February 2018, and he filed a notice of appeal to the

Superior Court. Commonwealth v. Thompson, No. 1937 EDA 2018, 2019 WL 1596195, at *2 (Pa.

Super. Ct. Apr. 15, 2019). The Superior Court issued a rule to show cause dated November 21,

2018 concerning the timeliness of Thompson’s notice of appeal. Id. at *2 n.3. Thompson

responded on December 6, 2018, resulting in a discharge of the rule to show cause on December

26, 2018. Id. The issue was then referred to the merits panel, and the court accepted Thompson’s

notice of appeal as timely filed. Id. Upon consideration of the appeal, including Thompson’s timely

appellate brief and statement of errors complained of on appeal, the Superior Court affirmed the

PCRA court’s dismissal of Thompson’s petition because it was filed outside the statutory period.

Id. at *2-3 (citing 42 Pa. Cons. Stat. Ann. § 9545(b)).

Thompson has not alleged how the opening or copying of his legal mail between October

2018 and February 2019 prevented him from pursuing his criminal appeal or materially altered his

success on appeal. In opposition to the motion to dismiss, Thompson argues that not allowing him

to have the original correspondence “which is necessary to file briefs and other court

documentation” caused him injury in his appeal before the Superior Court. (Plt. Opp. at 3.) But

Thompson’s PCRA appeal was not denied because he did not file original documents or for any

other procedural defect with the appeal. Rather, the Superior Court’s consideration of Thompson’s

appellate brief indicates that any alleged interference with mail from the Superior Court or the

Delaware County District Attorney’s Office between October 2018 and February 2019 did not

materially alter the success of Thompson’s criminal appeal. Moreover, Thompson has not pleaded

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facts to show that his third PCRA petition, which was dismissed, was a non-frivolous legal claim.

Thompson’s only remaining allegation concerning denial of access to courts through

interference with his mail relates to his request for a criminal investigation into the destruction of

his property at SCI Phoenix. (Compl. ¶ 21.) Thompson’s request for a criminal investigation is not

a valid legal claim. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Even if Thompson

was the victim of a crime because of the destruction of his property, he would not be a party in any

subsequent criminal prosecution by the local Montgomery County District Attorney’s Office.

Thompson had the opportunity to pursue a civil cause of action in this Court for claims related to

the destruction of his personal property at SCI Phoenix, and he does not allege that case was

hindered by the DOC’s mail policy.

In sum, Thompson has not plausibly alleged any actual injury stemming from opening or

copying of his legal mail between October 2018 and February 2019, so he has not stated a claim

for denial of access to courts. The Court further concludes that leave to amend this claim would

be futile. See Armstrong v. Coleman, Civ. A. No. 11-1074, 2012 WL 1448421, at *3 (W.D. Pa.

Mar. 21, 2012), report and recommendation adopted as modified, 2012 WL 1454906 (W.D. Pa.

Apr. 26, 2012). Therefore, the access to courts claim is dismissed with prejudice.

C. Freedom of Speech

Thompson also asserts that the DOC’s new mail policy, as applied to his mail from District

Attorney’s Offices and the Superior Court, violated his First Amendment right to freedom of

speech. (See Compl. ¶¶ 21, 26, 28-34.) Specifically, he asserts violation of his “rights not to [have]

his privileged and or protected legal mail…read, copied, censored, infringed upon, and invaded,

[or] to have the originals taken,” and his “rights to communicate without intrusion of privacy.”

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(Compl. ¶¶ 28-29.) The Court finds Thompson has plausibly alleged that the DOC’s new policy

of copying and retaining his mail from the court was a violation of his First Amendment right to

freedom of speech. Thompson cannot prevail on his arguments regarding the DOC’s classification

of his mail from the District Attorney’s Office as non-legal mail, but he has potentially stated a

claim for the DOC’s use of Smart Communications to process his non-legal mail from the District

Attorney’s Offices.

In order to assess whether Thompson has stated any valid First Amendment claims, the

Court must first address the Third Circuit’s recent history evaluating similar challenges. The Third

Circuit has repeatedly held that “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.”

Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir. 1995), abrogated on other grounds by Lewis v.

Casey, 518 U.S. 343 (1996); accord Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (“explicit

policy of opening legal mail outside the presence of the addressee inmate…impinges upon the

inmate’s right to freedom of speech.”). This is because, “[s]uch 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.” Bieregu, 59 F.3d at 1452. An inmate claiming a violation

of this freedom of speech need not allege any consequential injury stemming from the violation

because “protection of an inmate’s freedom to engage in protected communications is a

constitutional end in itself.” Jones, 461 F.3d at 360.

In Jones, the Third Circuit enjoined the application of a New Jersey DOC policy that had

suspended the regulatory requirement that legal mail be opened in an inmate’s presence for as long

as the emergency declared by the Governor on September 11, 2001 remained in effect. Id. at 356-

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57. After determining that the policy burdened prisoners’ freedom of speech, the Jones court

undertook a factual analysis, applying the standard set forth in Turner v. Safley, 482 U.S. 78 (1987),

to determine whether the policy was nonetheless constitutionally valid because it was “reasonably

related to legitimate penological interests.” Id. at 358 (quoting Turner, 482 U.S. at 89). The Turner

analysis requires a court to find, first, that there is a “valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at

89 (internal quotation marks omitted). If a rational relationship exists, a court must then consider

“(1) whether inmates retain alternative means of exercising the circumscribed right, (2) the burden

on prison resources that would be imposed by accommodating the right, and (3) whether there are

alternatives to the regulation that fully accommodate the prisoners’ rights at de minimis cost to

valid penological interests.” Jones, 461 F.3d at 360 (internal quotation marks omitted). The Jones

court found the New Jersey DOC policy unconstitutional because the state failed to demonstrate a

rational connection between the legal mail policy and the penological interests identified to justify

it. Id. at 364.

After the ruling in Jones, the Third Circuit considered the constitutionality of the

Pennsylvania DOC’s inmate mail policy DC-ADM 803, as amended in 2002 and 2004, which

introduced the control number system for legal mail. Fontroy v. Beard, 559 F.3d 173, 175-76 (3d

Cir. 2009). Under that system, incoming mail from attorneys and courts could only be treated as

legal mail, and therefore opened in an inmate’s presence, if it was hand delivered to a facility or if

the attorney or court obtained a control number which it placed on the outside of the envelope. Id.

Attorneys and courts could obtain control numbers by faxing a written request to the DOC. Id. at

176. Non-legal mail was opened at a mailroom outside the perimeter of the corrections facility. Id.

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at 174. In Fontroy, DOC officials conceded that the control number policy impeded prisoners’

freedom of speech to some degree because it resulted in opening some mail from attorneys and

courts outside the inmates’ presence, but they argued that the policy could still be constitutional

under a Turner analysis. Id. at 177. After undertaking this analysis, the Fontroy court agreed. Id.

at 182. It found the Pennsylvania DOC’s control number policy constitutional and reversed the

lower court’s grant of summary judgment to the inmates and denial of summary judgment to DOC

officials. Id. at 182-83.

It is with this precedent in mind that the Court approaches Thompson’s allegations

concerning the DOC’s new mail policy. Under the 2018 DC-ADM 803, mail from a court was

always classified as legal mail and did not require a control number. In order for mail from a

District Attorney’s Office to be considered legal mail, the District Attorney’s Office needed to

obtain and use a control number, which the DOC would only issue when the underlying matter

involved a confidential investigation process or similar matter. Because mail from a court and a

District Attorney’s Office were not treated equivalently under the 2018 DC-ADM 803, the Court

will consider separately Thompson’s allegations about his mail from the Superior Court and

District Attorney’s Offices.

1. Mail from the Pennsylvania Superior Court

Thompson asserts two distinct theories of how his mail from the Pennsylvania Superior

Court was treated. First, the Complaint generally asserts that mail from the state court was forced

to be sent through Smart Communications and was not opened in Thompson’s presence. (Compl.

¶ 32.) Second, in the administrative grievance attached as an exhibit to the Complaint, Thompson

asserts that mail from a court, postmarked October 24, 2018, was opened in his presence at SCI

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Phoenix and photocopied, seemingly in compliance with 2018 DC-ADM 803’s policy for legal

mail. (Compl. Ex. H at 62.) The exhibits attached to the Complaint also include three images of

envelopes from the Pennsylvania Superior Court dated October 24, 2018, November 21, 2018, and

December 26, 2018. (Compl. Ex. K at 72-74.) These envelopes do not contain recipient addresses,

so it is not clear whether they were delivered to Smart Communications in Florida or to SCI

Phoenix. The October and November envelopes are stamped “LEGAL MAIL,” which indicates

that they were treated in accordance with 2018 DC-ADM 803’s procedure for legal mail. (Id. at

73-74.) The December envelope does not contain the same marking to indicate it was treated as

legal mail. (Id. at 72.)

The 2018 DC-ADM 803 classifies mail from a court as legal mail without any reference to

a necessary control number, and according to the policy, all legal mail was to be addressed to the

state correctional institution and opened in the inmate’s presence. Therefore, to the extent that

Thompson asserts his mail from a court was opened by Smart Communications outside of his

presence, he has alleged a violation of the DOC’s mail policy.

An isolated incident of opening legal mail outside of an inmate’s presence, without

evidence of an improper motive, is insufficient to establish a First Amendment violation. Gibson

v. Erickson, 830 F. App’x 372, 373 (3d Cir. 2020); Salter v. Wetzel, Civ. A. No. 19-1691, 2020

WL 3579554, at *7 (M.D. Pa. June 30, 2020); Hale v. Pa. Dep’t of Corr., Civ. A. No. 07-345,

2010 WL 3791833, at *3 (M.D. Pa. Sept. 16, 2010); see Bieregu, 59 F.3d at 1452, abrogated on

other grounds by Lewis, 518 U.S. 343 (finding evidence of a pattern of opening court mail outside

an inmate’s presence sufficient to state a claim, but finding a single instance of damaged mail not

sufficient to state a claim for censorship); Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003).

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Thompson has not alleged that the Defendants routinely violated the DOC’s mail policy or had

any improper motive to do so. Nor has he alleged any pattern or practice of requiring mail from a

court to be sent to Smart Communications or opened outside his presence. At most, with regard to

court mail and Smart Communications, he has alleged that his December 2018 letter from a court

was processed as non-legal mail and opened outside his presence. This single isolated incident is

not sufficient to establish a First Amendment violation.

But, interpreting the complaint liberally, Thompson also alleges that his October and

November 2018 mail from a court were treated in accordance with the DOC’s new policy for legal

mail and that the new policy unconstitutionally infringed upon his freedom of speech. The 2018

DC-ADM 803 required all legal mail to be opened and photocopied in the inmate’s presence, and

a copy of the mail was to be delivered to the inmate. The original legal mail was to be retained by

the DOC, albeit sealed in an opaque envelope and deposited in a secure receptacle, and then

destroyed after 45 days. At the motion to dismiss stage, the Court finds Thompson has plausibly

alleged that the application of this policy to his legal mail violated his First Amendment freedom

of speech.

Prison systems must open an inmate’s legal mail in his presence to ensure the

confidentiality of an inmate’s protected speech. A DOC’s policy or practice of opening legal mail

outside an inmate’s presence “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. Simply put, the purpose of

opening mail in an inmate’s presence is to ensure that prison officials will not read the mail. See

Bieregu, 59 F.3d at 1456 (citing Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974)). A DOC

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practice of keeping a copy of an inmate’s privileged mail presents the same risk to confidentiality

as opening the mail outside the inmate’s presence: the risk that DOC officials will read an inmate’s

legal mail, despite policies prohibiting such behavior. Although the 2018 DC-ADM 803 required

DOC officials to open legal mail in the inmates’ presence, the policy to photocopy the legal mail

and retain the original legal mail outside the inmates’ presence presents a risk of chilling inmates’

confidential, protected speech for fear that DOC officials will read the contents of the original

communication. Thompson has plausibly alleged that the 2018 DC-ADM 803 legal mail policy—

specifically, the Defendants’ creation of this policy or application of this policy to his mail from

the Superior Court—infringed upon his freedom of speech.

Of course, this is not the end of the inquiry. This policy could still be constitutional if it is

reasonably related to legitimate penological interests. Thus, the Court must consider the legitimate

governmental interest to justify the prison regulation and other factors including available

alternatives and the burden on prison resources. See Turner, 482 U.S. at 89-90; Jones, 461 F.3d at

360. The Turner analysis is a highly fact-intensive inquiry that the Court cannot resolve on this

motion to dismiss. See Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004); Wolf v. Ashcroft, 297

F.3d 305, 308-10 (3d Cir. 2002); Dean v. Tice, Civ. A. No. 19-113, 2020 WL 3037194, at *3 (W.D.

Pa. May 13, 2020), report and recommendation adopted, 2020 WL 3036630 (W.D. Pa. June 5,

2020). Defendant regulators have the burden to put forward the legitimate governmental interest

to justify the regulation, Jones, 461 F.3d at 360, and the DOC Defendants have not done so at this

early stage of the litigation. Thus, at this stage, Thompson has plausibly alleged that the DOC

Defendants’ application of the 2018 DC-ADM 803 to his mail from the Pennsylvania Superior

Court violated his freedom of speech.

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2. Mail from District Attorney’s Offices

Thompson asserts that his mail from District Attorney’s Offices was forced to be sent

through Smart Communications, which did not open the mail in Thompson’s presence and stored

the original mail. (Compl. ¶¶ 31-32.) He specifically references two pieces of mail he received

from District Attorney’s Offices postmarked January 9, 2019 and February 5, 2019. (Compl. ¶ 21.)

As an exhibit to the Complaint, he includes one envelope from the District Attorney’s Office of

Delaware County, which is addressed to Plaintiff in the care of Smart Communications in Florida.

(Compl. Ex. K at 75.)

Thompson’s complaint that his mail from a District Attorney’s Office was forced to be sent

to Smart Communications and opened outside his presence is an argument about the validity of

the DOC’s control number policy. But the Third Circuit has already assessed and approved of the

Pennsylvania DOC’s attorney control number system. Fontroy, 559 F.3d at 182. The same control

number system that the Third Circuit approved in Fontroy was still partially present in the 2018

DC-ADM 803, which Thompson challenges here. As with the control number policy in Fontroy,

under the 2018 DC-ADM 803, mail from an attorney was only considered legal mail if the attorney

obtained and used a control number; only legal mail was opened in an inmate’s presence, and non-

legal mail was opened off-site from the correctional facility. However, there were several new

elements in the 2018 DC-ADM 803. Most notably, the new mail policy in 2018 provided for both

legal and non-legal mail to be copied and original mail to be withheld from inmates. Non-legal

mail had to be addressed to Smart Communications, an off-site processing center in Florida, where

it would be opened and electronically scanned, in order for a copy to be provided to the inmate.

By addressing its mail to Smart Communications and failing to include a control number,

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the District Attorney’s Office chose to classify its mail to Thompson as non-legal. In Fontroy, the

Third Circuit considered this precise problem. The court noted its concern that inmates “cannot

force attorneys and courts to obtain and use Control Numbers[,]” and acknowledged that this made

the DOC’s control number policy “a less-than-ideal means of accommodating the Inmates’

important First Amendment rights.” Id. at 180-81. Nevertheless, the Third Circuit reasoned that

the availability of an alternative that would preserve the inmate’s rights to confidential legal

communications—specifically, the ability of the sender to acquire and use a control number—was

sufficient to favor holding the DOC’s new control number policy constitutional under the second

step of the Turner analysis. Id. at 181.

The Court finds Fontroy controls Thompson’s claims concerning the DOC’s policy to

classify his mail from a District Attorney’s Office as non-legal, and therefore, to allow it to be

opened by Smart Communications outside of his presence. An inmate’s right to have legal mail

opened in his presence is rooted in the notion that those are confidential communications deserving

of heightened protections. See Jones, 461 F.3d at 359. The difficult question the Third Circuit

faced in Fontroy was what communications deserve that heightened protection. It found that the

Pennsylvania DOC’s legitimate penological interest to prevent contraband from entering prisons

made the control number system constitutional. See Fontroy, 559 F.3d at 178-80. Therefore,

Thompson’s allegations regarding the DOC’s policy of classifying mail from the District

Attorney’s Office without a control number as non-legal mail, and opening it outside his presence,

do not state a claim for an unconstitutional violation of his freedom of speech.

Thompson also challenges the new mail policy for Smart Communications to receive,

electronically scan, and withhold originals of incoming non-legal mail, including his mail from

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the District Attorney’s Office. (Compl. ¶¶ 29-33.) This is a separate inquiry concerning the scope

of permissible interference with prisoners’ rights to receive non-legal mail. See Thornburgh v.

Abbott, 490 U.S. 401, 407-08 (1989); Turner, 482 U.S. at 91-93. The 2018 DC-ADM 803

interferes with inmates’ ability to receive incoming non-legal mail in that it requires processing of

non-legal mail in Florida, which could result in delays in inmates receiving the mail, and it does

not allow delivery of original mail. Thus, Thompson’s challenge to the DOC’s policy for Smart

Communications to process non-legal mail must comply with Turner to be constitutional. See

Hamm v. Rendell, 166 F. App’x 599, 603 (3d Cir. 2006) (finding reversible error for a district

court’s failure to undertake a Turner analysis of an incoming non-legal mail policy). As described

above, such a fact-intensive analysis is not possible at this stage of the litigation. Therefore, the

Court cannot dismiss this challenge to the non-legal mail policy for failure to state a claim at this

juncture.

D. Dismissal on the Basis of Qualified Immunity

Although Thompson has plausibly alleged potential violations of his freedom of speech,

this does not guarantee that there is relief available. Defendants’ motion to dismiss does not raise

the defense of qualified immunity, but pursuant to the screening provisions of the Prison Litigation

Reform Act (PLRA), the Court must consider this issue sua sponte if it is evident from the face of

the Complaint. The Court finds this case should be dismissed because Defendants are entitled to

qualified immunity.

1. The Prison Litigation Reform Act

The PLRA permits or requires district courts to engage in proactive screening of civil

actions by prisoners who are: proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2); seeking

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redress from a governmental entity or an officer or employee of a governmental entity, 28

U.S.C. § 1915A; or bringing claims with respect to prison conditions, 42 U.S.C. § 1997e(c)(1).

Pub. L. No. 104-134, 110 Stat. 1321 (1996). Thompson’s Complaint is subject to screening under

each of these PLRA provisions.5 Pursuant to the PLRA screening provisions, a district court

“shall” dismiss a prisoner’s action if it determines the complaint “seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(iii); 28 U.S.C. § 1915A(b);

42 U.S.C. § 1997e(c)(1). Thus, although immunity is an affirmative defense that ordinarily must

be raised in a responsive pleading, if a defendant’s absolute or qualified immunity is apparent from

the face of the complaint, the PLRA screening provisions permit a court to sua sponte dismiss an

action on that basis. See Howell v. Young, 530 F. App’x 98, 100 (3d Cir. 2013); Newland v.

Reehorst, 328 F. App’x 788, 791 (3d Cir. 2009).

Thompson seeks compensatory and punitive damages. Thompson cannot recover

compensatory damages in a Federal civil action because of the PLRA’s prohibition on recovery

for mental or emotional injury suffered while in prison without accompanying physical injury. 42

U.S.C. § 1997e(e); see Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000). The Complaint does

not allege physical injury and the only injury that could potentially arise from Thompson’s

allegations about violations of his freedom of speech would be mental or emotional. But the

PLRA’s bar on compensatory damages does not prohibit recovery of punitive or nominal damages.

Allah, 226 F.3d at 251-52. Therefore, because Thompson also seeks punitive damages, the Court

must assess Defendants’ immunity from this claim for relief.

5 Because the Court did not undertake a screening of the Amended Complaint at the

commencement of this action, § 1915A may no longer apply, but § 1915(e)(2) and § 1997e(c) are

applicable throughout the litigation. See Grayson, 293 F.3d at 110 n.11 (3d Cir. 2002).

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2. Qualified Immunity Doctrine

Thompson seeks damages pursuant to 42 U.S.C. § 1983 from the DOC Defendants and

Smart Communications for violation of his First Amendment rights. “[W]hen a public official’s

actions give rise to a § 1983 claim, the privilege of qualified immunity can serve as a shield from

civil suit in certain circumstances.” Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006). As

Secretary of the DOC and Superintendents of SCI Phoenix, the DOC Defendants are public

officials who could potentially invoke the privilege of qualified immunity. See Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982); Sutton v. Rasheed, 323 F.3d 236, 260 (3d Cir. 2003). The

Court first will address the application of qualified immunity to those DOC Defendants based on

the facts of this case. Then the Court will address whether qualified immunity applies equally to

the DOC’s mail processing center, Smart Communications.

A. DOC Defendants

The qualified immunity doctrine “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.” Sharp v. Johnson, 669 F.3d 144, 159 (3d

Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “For a constitutional right to

be clearly established, its contours ‘must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Thus, the court “must not ‘define

clearly established law at a high level of generality.’” Mirabella v. Villard, 853 F.3d 641, 653 (3d

Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). But even in novel factual

circumstances, a right can be clearly established, when “a general constitutional rule already

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identified in the decisional law” applies “with obvious clarity to the specific conduct in

question….” Williams, 455 F.3d at 191 (quoting Hope, 536 U.S. at 741).

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. “Thus, so long as an official

reasonably believes that his conduct complies with the law, qualified immunity will shield that

official from liability.” Sharp, 669 F.3d at 159.

At issue here is whether Thompson had clearly established rights under the First

Amendment to: (1) not have legal mail photocopied or stored outside his presence and receive

original incoming legal mail; and (2) not have non-legal mail processed in another state and receive

original incoming non-legal mail. Neither of these rights were so clearly established that a

reasonable person would have known the new DOC mail policy was unconstitutional.

An inmate’s right to confidentiality of legal mail is clearly established. See Jones, 461 F.3d

at 359; Al-Amin v. Smith, 511 F.3d 1317, 1334 (11th Cir. 2008); Muhammad v. Pitcher, 35 F.3d

1081, 1083-84 (6th Cir. 1994). But the DOC’s new legal mail policy did reasonably attempt to

comply with existing precedent governing protection of that right. The 2018 DC-ADM 803

attempted to protect an inmate’s right to confidentiality of legal mail by requiring that the legal

mail be opened and photocopied in an inmate’s presence, then sealed in an opaque envelope, stored

in a secure container until destruction, and that this process be captured on video tape, without

taping the contents of the legal mail. Even if this policy violated inmates’ freedom of speech under

a Turner analysis, the policy was not a clear violation of the general constitutional rule to protect

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the confidentiality of inmates’ legal mail. See Jones, 461 F.3d at 364 (affirming qualified immunity

for application of unconstitutional legal mail policy because “there was no guidance in our case

law regarding the application of Bieregu and Turner in the context of the special circumstances

encountered in Fall of 2001.”); see also Sutton, 323 F.3d at 260 (finding qualified immunity for

violation of prisoners’ free exercise right because a Turner analysis presented “close calls on these

facts, especially in light of the great deference we accord the judgments of prison officials.”).

As for the DOC’s new policy to use Smart Communications for handling of non-legal mail,

even if this policy were to violate a constitutional right under a Turner analysis, it would not violate

a clearly established right. Courts have long upheld the practice of opening and examining non-

legal mail outside an inmate’s presence. See Gassler v. Wood, 14 F.3d 406, 408 n.5 (8th Cir. 1994);

Smith v. Shimp, 562 F.2d 423, 427 (7th Cir. 1977). Several Courts of Appeals, including the Third

Circuit, have also approved restrictions on certain types of incoming non-legal mail that could

easily conceal contraband. Hurd v. Williams, 755 F.2d 306, 307-09 (3d Cir. 1985); Ward v.

Washtenaw County Sheriff’s Dept., 881 F.2d 325, 329 (6th Cir. 1989); Kines v. Day, 754 F.2d 28,

30 (1st Cir. 1985); Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir. 1980). In creating or enforcing

the 2018 DC-ADM 803, a DOC official could have reasonably believed that the new policy was

constitutional in light of existing precedent. Therefore, the DOC Defendants are entitled to

qualified immunity.

B. Smart Communications

Qualified immunity under § 1983 extends to persons working for the government,

regardless of whether they are state employees or merely contracted to perform the work. Filarsky,

566 U.S. at 389, 393-94 (finding an attorney retained by municipal entity to conduct an official

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investigation could invoke qualified immunity). But qualified immunity will not apply to private

actors who are “using the mechanisms of government to achieve their own ends….” Id. at 392. In

Richardson v. McKnight, the Supreme Court found that guards in a Tennessee private prison were

not entitled to qualified immunity based on a review of the history of immunities in the prison

industry and the immunity doctrine’s purposes. 521 U.S. 399, 412 (1997). But the Court in

Richardson specifically noted that it addressed the qualified immunity issue “narrowly, in the

context in which it arose[,]” in which a private firm, “with limited direct supervision by the

government,” managed a private prison. Id. at 413. The Richardson court explicitly noted that the

case did “not involve a private individual briefly associated with a government body, serving as

an adjunct to government in an essential governmental activity, or acting under close official

supervision.” Id.; see Cresci v. Gyss, 792 F. App’x 226, 227 (3d Cir. 2020) (describing Richardson

as “a narrow exception to the general rule that private contractors rendering government services

can assert official-immunity defenses”).

Here, the 2018 DC-ADM 803 specifies that non-legal mail must be sent to “Smart

Communications/PA DOC” which it describes as “the Department’s contracted central incoming

inmate mail processing center.” DC-ADM 803 (Effective Date Oct. 3, 2018) at 1-1. The 2018 DC-

ADM 803 also dictates how Smart Communications must handle inmates’ incoming non-legal

mail. Id. at 1-8. Smart Communications was contracted to execute the Commonwealth’s

constitutional mandate to provide its correctional facilities’ inmates with access to the mail. Unlike

the prison guards in Richardson, Smart Communications was essentially serving as an adjunct to

a state prison facility in its essential governmental activity to serve state prison inmates. And much

like the investigator granted qualified immunity in Filarksy, Smart Communications could be left

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“holding the bag” for action taken in conjunction with government employees who enjoy immunity

for the same activity. 566 U.S. at 391. Therefore, the Court finds that qualified immunity should

apply equally to Smart Communications because it was contracted to assist the DOC in carrying

out its essential work pursuant to official DOC policy.

All Defendants are entitled to qualified immunity for the First Amendment violations

alleged. Thompson cannot offer any factual amendments to alter this finding. Therefore, the case

must be dismissed with prejudice because leave to amend the complaint in these circumstances

would be futile. See Wilson v. Altman, 807 F. App’x 172, 177 (3d Cir. 2020).

IV. CONCLUSION

For the foregoing reasons, the Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is

granted in part and denied in part, but the Amended Complaint is dismissed with prejudice pursuant

to the Court’s obligations under 28 U.S.C. § 1915(e)(2)(B)(iii) and 42 U.S.C. § 1997e(c)(1),

because the Defendants are entitled to qualified immunity. An Order consistent with this

memorandum will be docketed separately.

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