Smith v. Wolfe

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KAREEM SMITH,

Civil No. 3:19-cv-0711

Plaintiff

: (Judge Mariani)

V.

Governor TOM WOLF, et al.,

Defendants

MEMORANDUM

I. BACKGROUND

On April 23, 2019, Plaintiff Kareem Smith (‘Plaintiff’), an inmate currently confined in

the State Correctional Institution, Dallas, Pennsylvania (“SCI-Dallas’), filed the above-

captioned action pursuant to 42 U.S.C. § 1983. The named Defendants are Governor Tom

Wolf (‘Wolf’), Department of Corrections (“DOC”) Secretary John Wetzel (“Wetzel”), DOC

Chief Grievance Officer Varner (“Varner”) and SCI-Dallas mailroom supervisor Giselle Malet

(“Malet”). (Doc. 1.) Plaintiff challenge the DOC’s use of the Smart Communications mail

system, claiming that it violates his First and Fourteenth Amendment rights under the

Constitution. (/d.) For relief, Plaintiff seeks compensatory and punitive damages, as well as

declaratory and injunctive relief. (/d.)

On February 14, 2020, Defendants filed a motion to dismiss Plaintiff's complaint

(Doc. 17) and on February 28, 2020, filed a brief in support of their motion. (Doc. 18). By

Order dated June 8, 2020, this Court granted Plaintiff until June 22, 2020, to file a brief in

opposition to Defendants’ pending motion. (Doc. 19.) The Order forewarned Plaintiff that

failure to file a brief in opposition would result in the Defendants’ motion being granted as

unopposed. (/d.) To date, Plaintiff has neither filed a brief in opposition, nor requested an

enlargement of time within which to do so. Accordingly, for the reasons set forth below,

Defendants’ motion will be granted as unopposed.

Il. | ALLEGATIONS IN THE COMPLAINT

Plaintiff alleges that on September 26, 2018, he was ‘called by C.O. Fitch to pick up

his incoming mail.” (Doc. 1). He states that “when the Plaintiff went to view the incoming

mail, he noticed the copies of the pictures that was sent to him by his family, were the wrong

pictures, and they were in black and white instead of color.” (Id.) The Plaintiff asked C.O.

Fitch “what happened to the pictures the Plaintiffs family sent to him [and] C.O. Fitch replied

‘According to the memo by John E. Wetzel, Secretary of the Pennsylvania Department of

Corrections, which came out on September 6, 2018, this is the new mail policy, you will not

receive your original photos from your family, those were sent to Smart Communications, a

third party in Florida, once your pictures arrive there, they will be checked for contraband,

scanned, copied and stored in their computer database for seven (7) years, then after

fifteen (15) days, they will be destroyed’.” (/d.)

On October 3, 2018, Plaintiff filed Grievance No. 763979, challenging the mail policy,

claiming a “complete violation of [his] First (1s) Amendment right to censorship” and that “all

prison officials at SCl-Dallas, all DOC employees, John E. Wetzel, Governor Tom Wolf, all

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knew this is a complete violation of [Plaintiff's] First (1s) Amendment Rights, there is no

penological interest from all parties, that they’re allowed to coy, store, destroy, [Plaintiff]

personal photos, nor is this mail regulation listed in DOC Policy, DC-ADM 803.” (Doc. 1 at

9, Grievance No. 763979).

On October 25, 2018, Plaintiff's grievance was denied as follows:

| have been assigned as Grievance Officer to address your issues regarding

processing your mail.

Your mail is being processed in accordance with DOC Inmate Mail and

Incoming Publications policy, DC-ADM 803. On August 29, 2018, the

Secretary of Corrections ordered an immediate lockdown of all State

Correctional Facilities. This action was a first step to curbing the introduction

of contraband into the facilities to ensure the safety of all inmates, staff,

visitors, and volunteers entering our facilities. Sometimes during the

implementation of changes, there are slight inconveniences; however, there

were no apparent or intended rights violations. If the PA Department of

Corrections including John E. Wetzel deems a State of Emergency to ensure

the safety of the Department as a whole, then they do not need your

permission to act as an agent on your behalf. When this office became

aware, you received the wrong photos a ticket with the tracking of 80053 was

put in to Smart Communications informing them the wrong photos were in the

envelope. Photos were printed in black and white until we received our color

copier to avoid delays of making the inmate population wait for their mail.

Now that the color copier is in place we have already began to the process of

reprinting all photos and cards that were printed in black and white, however,

we will not reprint the photos you are referring to in this grievance since they

are not your photos as stated.

Based on the above information, your grievance is upheld in party only upheld

that the mailroom is waiting for Smart Communications correct the issue and

close the ticket out for the photos that you received in error. This grievance is

denied in part due to the fact that policy was not violated and your rights were

not violated as you allege, therefore, no financial relief will be awarded.

(Doc. 1-1 at 8, Initial Review Response).

On October 26, 2018, Plaintiff filed an appeal of Grievance No. 763979 to the Facility

Manager, (Doc. 1-1 at 9, appeal), which was denied on November 29, 2018, as follows:

| have reviewed the above-noted grievance, the Grievance Coordinator's

response and your subsequent appeal of said grievance. My decision is as

follow:

Ms. Malet was assigned as grievance officer and has appropriately addressed

all of your grievance concerns regarding the handling of mail.

Your mail is being processed in accordance with DC-ADM 803 Inmate Mail

and Incoming Publications policy. SCl-Dallas is not responsible for your

attorney failing to follow the guidelines of placing the attorney control number

on the correspondence.

| find your grievance to be without merit; therefore, | uphold the initial

response to uphold in part/deny in part. Your request for relief is denied.

(Doc. 1-1 at 11, Facility Manager's Appeal Response).

On December 5, 2018, Plaintiff filed an appeal of Grievance No. 763979 to final

review before the Secretary's Office of Inmate Grievances and Appeals. (Doc. 1-1 at 12,

appeal).

On December 26, 2018, the Chief Grievance Officer upheld Plaintiff's grievance,

finding the following:

You claim in your grievance that on 9/26/18, you received black and white

photos that did not belong to you, that you never agreed to have your family

send pictures to Florida, and you didn’t give the DOC permission to store your

family’s addresses for seven years in its database. You seek $10,000 from

each of the prison officials of the PA DOC, DOC Secretary Wetzel and Gov.

Wolf for violating your rights. An investigation was conducted into your

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allegations. The record reflects that Mailroom Supervisor Malet adequately

addressed your issue. The record reflects that the new mail procedure was

directed and approved by Secretary Wetzel on 8/29/18. The record reflects

that as soon as staff were made aware of you receiving the wrong pictures, a

ticket was placed with Smart Communications to fix the error. The record

reflects that because staff did not have access to colored printers, photos

were printed in black and white so there was not a delay in you receiving your

photos. The record reflects that mailroom staff are reprinting the photos that

you received in black and white, except for the ones that you admitted were

not yours. Although this new process is not what you are used to, there are

no policy violations. Staff are doing the best they can to ensure that you

continue to get your mail. Your grievance is upheld in part because you did

receive the wrong photos but denied in your requested relief because you

have not been harmed in any way.

(Doc. 1-1 at 14, Final Appeal Decision).

On October 10, 2018, Plaintiff filed Grievance No. 765597, arguing that the

Defendants have “a custom, pattern, practice, and for the second time, copying, destroying

Plaintiffs incoming mail without any penological interest and storing Plaintiff's family

information in a computer database with Smart Communications for a period of seven (7)

years, without the permission from the Plaintiff, or his family members. (Doc. 1-1, Official

Inmate Grievance).

By response dated October 30, 2018, Plaintiff's grievance was denied, in part, as

follows:

| have been assigned as Grievance Officer to address your issues regarding

processing of your mail.

Your mail is being processed in accordance with DOC Inmate Mail and

Incoming Publications policy, DC-ADM 803. On August 29, 2018, the

Secretary of Corrections ordered an immediate lockdown of all State

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Correctional Facilities. This action was a first step to curbing the introduction

of contraband into the facilities to ensure the safety of all inmates, staff,

visitors, and volunteers entering our facilities. Sometimes during the

implementation of changes, there are slight inconveniences; however, there

were no apparent or intended rights violations. If the PA Department of

Corrections including John E. Wetzel deems a State of Emergency to ensure

the safety of the Department as a whole, then they do not need your

permission to act as an agent on your behalf. Photos were printed in black

and white until we received our color copier to avoid delays of making the

inmate population wait for their mail. Now that the color copier is in place we

have already began the process of reprinting all photos and cards that were

printed in black and white. The Department of Corrections denies storing

your family’s personal information in a database for seven (7) years as you

allege.

Based on the above information, your grievance is upheld in part only upheld

that the mailroom is in the process of printing/reprinting your photos in color.

Denied in part because there are no policy violations as you allege. No

financial relief will be awarded.

(Doc. 1-1 at 19, Initial Review Response).

On October 31, 2018, Plaintiff filed an appeal of Grievance No. 765597 to the Facility

Manager, (Doc. 1-1 at 20, appeal), who, on November 29, 2018, upheld the initial response,

as follows:

| have reviewed the above-noted grievance, the Grievance Officer's response

and your subsequent appeal of said grievance. My decision is as follows:

Ms. Malet was assigned as grievance officer and has appropriately addressed

all of your grievance concerns regarding the handling of your mail at SCI-

Dallas.

Your mail is being processed in accordance with DOC Inmate Mail and

Incoming Publications policy, DC-ADM 803 which states all incoming, non-

privileged inmate correspondence must be addressed and sent to the

Department’s contracted central incoming inmate mail processing center. In

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addition, it states, the contracted mail processing center shall retain the

following records related to the processing of inmate incoming mail in

accordance with the following periods: scanned electronic copies of the

incoming correspondence will be securely maintained for 45 days and then

securely destroyed unless otherwise directed by the Department.

| find your grievance to be unfounded, therefore, | uphold the initial response.

Your requested monetary relief is denied.

(Doc. 1-1 at 22, Facility Manager's Appeal Response).

Plaintiff filed an appeal to final review on December 5, 2018. (Doc. 1-1 at 23, Inmate

Appeal to Final Review). On December 26, 2018, Plaintiff's appeal was denied, based on

the following:

You claim in your grievance that on 10/10/18, you received black and white

photos, that you never agreed to have your family send pictures to Florida,

and you didn’t give the DOC permission to store your family’s addresses for

seven years in its database. You seek $10,000 from each of the prison

Officials of the PA DOC, DOC Secretary Wetzel and Gov. Wolf for violating

your rights. An investigation was conducted into your allegations. The record

reflects that Mailroom Supervisor Malet adequately addressed your issue.

The record reflects that the new mail procedure was directed and approved

by Secretary Wetzel on 8/29/18. The record reflects that because staff did

not have access to colored printers, photos were printed in black and white so

there was not a delay in your receiving your photos. The record reflects that

mailroom staff are reprinting the photos that you received in black and white.

Although this new process is not what you are used to, there are no policy

violations. Staff are doing the best they can to ensure that you continue to

get your mail. You have failed to provide any evidence that you have been

harmed in any way. Therefore, your requested relief is denied.

(Doc. 1-1 at 25, Final Appeal Decision).

On April 23, 2019, Plaintiff filed the instant action, challenging the alleged “ongoing

practice, pattern, custom, policy, of the named Defendants, destroying, coping (sic), storing

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the Plaintiff's incoming non-privileged mail, along with the Plaintiff's family members’

information being stored in a computer database of a third party, [Smart Communications},

which violates the Plaintiff's First [1s] Amendment Rights against Free Speech, Censorship

and Plaintiffs Fourteenth [14t"] Amendment Right against Due Process.” (Doc. 1 at 28).

For relief, Plaintiff seeks compensatory and punitive damages, as well as declaratory and

injunctive relief. (/d.).

ill. © STANDARD

A. — Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Defendants move for the dismissal of Plaintiffs complaint pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure for failure to state a claim. (Doc. 18 at 3-4.) Federal

notice and pleading rules require the complaint to provide the defendant notice of the claim

and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 232

(3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a

plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is

entitled to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil

Procedure 12(b)(6) for its “failure to state a claim upon which relief can be

granted.” See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court accepts as true all

factual allegations in the complaint and all reasonable inferences that can be drawn from

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them, viewed in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009); In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To

prevent dismissal, all civil complaints must set out “sufficient factual matter” to show that

their claims are facially plausible. See /qbal, 556 U.S. at 678; Fowler v. UPMC Shadyside,

578 F.3d 203, 210 (3d Cir. 2009). The plausibility standard requires more than a mere

possibility that the defendant is liable for the alleged misconduct: “[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.” See

Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a district court

must take when reviewing a 12(b)(6) motion: (1) identify the elements that a plaintiff must

plead to state a claim; (2) identify any conclusory allegations contained in the complaint that

are “not entitled” to the assumption of truth; and (3) determine whether any “well-pleaded

factual allegations” contained in the complaint “plausibly give rise to an entitlement to relief.”

See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and

quotation marks omitted). The Third Circuit has specified that in ruling on a Rule 12(b)(6)

motion to dismiss for failure to state a claim, “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.” See

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Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.

White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful that a document

filed pro se is “to be liberally construed.” See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

A pro se complaint, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can be dismissed for failure to state a claim

only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his

claim that would entitle him to relief. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Section 1983 Standard

Section 1983 is the vehicle by which private citizens may seek redress for violations

of federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The

statute states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City

of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536

U.S. 273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must

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allege that: (1) the conduct complained of was committed by persons acting under color of

state law; and (2) the conduct violated a right, privilege, or immunity secured by the

Constitution or laws of the United States. See Harvey v. Plains Twp. Police Dep't, 421 F.3d

185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

IV. DISCUSSION

In their motion to dismiss, Defendants argue that (1) the court should dismiss Smith's

First Amendment freedom of expression claim because processing mail by a third-party

does not restrict his freedom of expression; (2) they are entitled to qualified immunity on

Smith's First Amendment confidentiality claim because it was not clearly established that

the moving defendants could not contract with a third-party to process incoming non-

privileged inmate mail; and (3) the court should dismiss any possible Fourteenth

Amendment claim (relating to any loss of property) because Pennsylvania law provides

Smith with an adequate state remedy. (Doc. 18 at 2-3.) The court will address each

argument in turn.

A. —Smith’s First Amendment Claim

Smith alleges that the DOC’s mail policy in which it uses Smart Communications to

process, copy/scan, occasionally destroy, and transmit prisoner mail violates his First

Amendment Freedom of Expression and right to confidentiality. (Doc. 1.)

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“In a prison context, an inmate does not retain those First Amendment rights that are

inconsistent with his status as a prisoner or with the legitimate penological objectives of the

corrections system.” Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 129 (1977)

(citation and internal quotation marks omitted). Prisoners have a First Amendment right to

use the mail. See Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006) (explaining that state

prisoners do not lose First Amendment right to use mail simply because they are

incarcerated); see also Bieregu v. Reno, 59 F.3d 1445, 1551 (3d Cir. 1995) (“Clearly then,

prisoners do not forfeit their First Amendment rights to use of the mails.”), overruled on

other grounds by Lewis v. Casey, 518 U.S. 343 (1996).

To determine whether the Departments’ mail policy violates Smith’s First

Amendment rights, the Court must analyze whether the mail policy “is reasonably related to

legitimate penological interests.”’ Turner v. Safley, 482 U.S. 78, 89 (1987). This analysis

“presupposes ‘that the plaintiff inmate has demonstrated that a constitutionally protected

1 The Court expressly rejected an “inflexible strict scrutiny analysis” for these types of prison

regulations because it would seriously hamper [prison officials’] ability to anticipate security

problems and to adopt innovative solutions to the intractable problems of prison administration.

The rule would also distort the decision-making process, for every administrative judgment would

be subject to the possibility that some court somewhere would conclude that it had a less restrictive

way of solving the problem at hand. Courts inevitably would become the primary arbiters of what

constitutes the best solution to every administrative problem, thereby unnecessarily perpetuat[ing]

the involvement of the federal courts in affairs of prison administration. Turner, 482 U.S. at 89

(citation and internal quotation marks omitted).

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interest is at stake’.”2 Jones, 461 F.3d at 358 (quoting DeHart v. Horn, 227 F.3d 47, 51 (3d

Cir. 2000) (en banc)). Under Turner, the court examines four factors “in determining the

reasonableness of the regulation at issue”: (1) whether there is “a valid, rational connection

between the prison regulation and the legitimate governmental interest put forward to justify

it[;]” (2) “whether there are alternative means of exercising the right that remain open to

prison inmates [;]” (3) “the impact accommodation of the asserted constitutional right will

have on guards and other inmates, and on the allocation of prison resources generally [;]”

and (4) “the absence of ready alternatives.” 482 U.S. at 90-91.

Concerning the first factor here, the court recognizes that “preventing the

introduction of contraband into the prison is ... a legitimate penological interest.” Guyer v.

Beard, 907 F.2d 1424, 1428-29 (3d Cir. 1990) (citation omitted). Nonetheless, “‘a

regulation cannot be sustained where the logical connection between the regulation and the

2 With regard to this constitutionally protected interest, the court acknowledges that:

[a] state pattern and practice, or, as is the case here, explicit policy, of

opening legal mail outside the presence of the addressee inmate

interferes with protected communications, strips those protected

communications of their confidentiality, and accordingly impinges

upon the inmate's right to freedom of speech. The practice 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. This is so

because the only way to ensure that mail is not read when opened ... is

to require that it be done in the presence of the inmate to whom it is

addressed. [Bieregu, 59 F.3d at 1456 (quoting Wolffv. McDonnell, 418

U.S. 539, 575 (1974)), overruled on other grounds by Lewis v. Casey,

518 U.S. 343 (1996) ].

Jones, 461 F.3d at 359.

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asserted goal is so remote as to render the policy arbitrary or irrational’ or to demonstrate

that it ‘represents an exaggerated response to [the asserted] objectives’.” Jones, 461 F.3d

at 360 (quoting Turner, 482 U.S. at 89-90). “Thus, ‘a rational nexus between a regulation

and a legitimate penological interest is essential to its validity’.” Id. (quoting DeHart, 227

F.3d at 53).

The moving defendants acknowledge that while Smith “bears the ultimate burden of

showing that the Department’s new mail policy is unconstitutional, it is the Department

Officials’ burden to demonstrate that a rational connection exists between the policy and a

legitimate penological interest.” (Doc. 18 at 7, citing Monroe, 536 F.3d at 207). Also, while

the court must “accord substantial deference to their professional judgment, the defendant

administrators’ evidence must amount to more than a conclusory assertion.” Monroe, 536

F.3d at 207 (internal citation and quotation marks omitted).

Moreover,

[w}hile the connection [between the prohibition/regulation and the interests to

be advanced] may be a matter of common sense in certain instances, such

that a ruling on this issue based only on the pleadings may be appropriate,

there may be situations in which the connection is not so apparent and does

require factual development. Whether the requisite connection may be found

solely on the basis of “common sense” will depend on the nature of the right,

the nature of the interest asserted, the nature of the prohibition, and the

obviousness of its connection to the proffered interest. The showing required

will vary depending on how close the court perceives the connection to be.

Wolf v. Ashcroft, 297 F.3d 305, 308-09 (3d Cir. 2002) (footnote omitted).

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Defendants contend that the Department and other states have observed instances

where drugs enter prisons by being soaked into the mail sent to inmates. (Doc. 18 at 8).

Thus, they argue that there is a “valid, rational connection between prohibiting inmates form

accessing original mail and stopping unlawful drugs from entering prison.” (/d.) Plaintiff

does not refute this.

This Court concludes that the Department has a legitimate governmental interest in

preventing contraband or narcotics from entering the state prisons. Nonetheless, the

particular issue in this case is that the Department is preventing inmates from possessing

the original document and Smart Communications (or prison officials) are destroying those

original documents after a certain period has passed. While the goal to prevent drugs from

entering the prison is understandable, this goal is not necessarily related to an original piece

of mail. Now, Defendants’ contention goes beyond that, because they point out that the

drastic change in the mail policy was required because the drugs were actually soaked into

the mail coming to the inmates. Thus, allowing inmates or prison employees to physically

touch the mail was actually exposing them to the drugs.

Defendants support these statements through three press releases, two issued by

the Department (on August 29, 2018 and October 19, 2018) and one by Governor Tom Wolf

(on September 5, 2018). (See Doc. 18-1, 18-3, 18-4). The court takes judicial notice of

these documents as matters of public record. See, e.g., JNL Mgmt., LLC v. Hackensack

Univ. Med. Ctr., Civ. A. No. 18-5221 (ES) (SCM), 2019 WL 1951123, at *4 (D.N.J. May 2,

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2019) ("[T]he Department of Justice’s Press Release is also a matter of public record

because it is a record of a government agency.” (citing Schmidt v. Skolas, 770 F.3d 241,

250 (3d Cir. 2014)). The August 29, 2018 and September 5, 2018 press releases provide

information about the Department's staff members becoming sickened by unknown

substances over a period of a few weeks. (See Doc. 18-1, 18-3). The October 19, 2018

press release provides a “progress update” on the “new protocols and policies announced in

September to protect staff, visitors and inmates at Pennsylvania's 25 state correctional

facilities after an unprecedented number of inmate and staff exposures to unknown

substances.” (Doc. 18-4). In this document, the Department also importantly indicates that

“[t]hose who seek to get drugs into prisons have become more creative and the new drugs,

K2 or synthetic cannabinoids, are odorless, colorless and more potent than seen before,

and make up 40 percent of drugs introduced into the state prison system.” /d.

The Court finds that the instant situation is one in which common sense shows a

connection between the Department seeking to stop the entry of drugs into the prisons and

using a system by which the original documents (which could have drugs on them) were

sent for processing to another location other than the prison. As such, there is valid,

rational connection between the Department's mail policy and the legitimate governmental

interest put forward by the Defendants.

Regarding the second factor, the Court agrees with Defendants that Smith has an

alternative means to receive his non-privileged mail. Per the policy, Smith receives a copy

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of the original mailing without its content being censored. (See Doc. 18-2, DC-ADM 803 §

1B.5 (“Facility staff will print and deliver paper copies of the incoming inmate

correspondence to the inmate recipients.”)). Additionally, Plaintiff can communicate via

electronic mail with family members if he possesses a tablet. (Doc. 18 at 9). While the

court appreciates Smith’s desire to have an original copy of a letter, photo, or card, and the

Court is not downplaying the significance of the sentiment and attachment to those original

documents, nevertheless, “[allternatives ... need not be ideal ...; they need only be

available.” Overton v. Bazzetta, 539 U.S. 126, 135 (2003).

Additionally, there is nothing about the current mail policy that prevents Smith from

meaningfully corresponding with whomever he chooses, including his family. Pursuant to

the current mail policy, Smith’s family can meaningfully correspond with him if they choose

to do so.

As for the third factor, “[w]hen accommodation of an asserted right will have a

significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly

deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90. Here,

providing Smith what he wants, namely a return to the policy that existed prior to the

Department contracting with Smart Communication, puts the Department (and its 25

prisons) back to where it was prior to the modified mail policy. As demonstrated by the

October 19, 2018 press release, the effects of the changes (which included changes

beyond simply changing the mail policy) on the inmate population and the staff were

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significant. (See Doc. 18-4 at 2, indicating that, inter alia, since policy changed (1) “[s]taff

sent to the emergency room for drug exposure dropped from 48 visits in August to 8 in

September|,]’ (2) “[d]rug finds dropped by 46 percent to the lowest level in more than a

year|,]” (3) “[pJositive drug tests from random inmate drug testing dropped in half to the

lowest level in more than a year,” (4) “[bJoth inmate-on-inmate and inmate-on-staff assaults

declined[,]” and (5) “[t]he number of inmate misconducts written for drug-related activity

were cut in half’). It is reasonable to conclude based on this information that returning to the

prior policy could harm the inmates and staff members at the 25 state prisons.

Regarding the final factor, Smith does not offer any other alternatives to the

Department's policy in his complaint. As indicated earlier, Smith’s only alternative appears

to be going back to the way staff members processed mail before the new policy took effect.

As the moving Defendants point out in their brief, “there are no ready alternatives that

accommodate the inmate's rights at a de minimis cost to the Department ..., nor does Smith

propose any.” (Doc. 18 at 11). Consequently, there is nothing in the record to dispute that

“[t]he new inmate mail policy is the most efficient and cost-effective means to deal with this

new and dangerous healthy and safety problem facing the state prison system.” (/d.)

Accordingly, Smith has not stated a plausible claim under the First Amendment regarding

the Departments’ mail policy.

Even if Smith had alleged a plausible claim for a constitutional violation, the court

agrees with the Defendants that they would be entitled to qualified immunity. State officials

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have qualified immunity from claims for monetary relief if their conduct “does not violate a

clearly established statutory or constitutional right of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “The doctrine is designed to

‘give[] government officials breathing room to make reasonable but mistaken judgments by

protect[ing] all but the plainly incompetent or those who knowingly violate the law’.” Bryan v.

United States of Am., 913 F.3d 356, 362 (3d Cir. 2019) (quoting City and Cty. of San

Francisco, Cal. v. Sheehan, 135 S. Ct. 1765, 1774 (2015)); see also Pearson, 555 U.S. at

231 (“The protection of qualified immunity applies regardless of whether the government

Official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions

of law and fact.” (citation and internal quotation marks omitted)). To determine whether an

officer's conduct is entitled to qualified immunity, courts ask two questions, “[o]ne is whether

the defendant's conduct violated a statutory or constitutional right. The other is whether the

right at issue was clearly established when the conduct took place. [Courts] have discretion

to address either inquiry first.” Sauers v. Borough of Nesquehoning, 905 F.3d 711, 716 (3d

Cir. 2018). During this analysis, the Court views the facts as most favorable to the non-

moving party and “courts must take care not to define a case's ‘context’ in a manner that

imports genuinely disputed factual propositions.”

As to the question of whether the right at issue was clearly established when the

Defendants’ conduct took place, courts should not “define clearly established law at a high

level of generality.” Id. at 716. Courts are not required to identify “a case directly on point

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for a right to be clearly established, [however,] existing precedent must have placed the

statutory or constitutional question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551

(2017) (citation and internal quotation marks omitted). Lastly, as an affirmative defense,

“the burden of establishing qualified immunity falls to the official claiming it as a defense.”

Burns v. Pa. Dep't of Corr., 642 F.3d 163, 176 (3d Cir. 2011) (citing Harlow v. Fitzgerald,

457 U.S. 800, 819 (1982)).

Here, the Court agrees with the Defendants that they did not violate clearly

established law when the Department contracted with Smart Communications to process

and copy incoming non-privileged mail. Smith does not identify, and this Court cannot

locate, any precedent that would have placed the moving Defendants on notice that their

conduct was constitutionally prohibited. Thus, Defendants are entitled to qualified

immunity for Smith’s First Amendment claims under section 1983.

B. Smith’s Fourteenth Amendment Claim

To the extent that Smith is asserting a due process claim under the Fourteenth

Amendment, he is entitled to due process of law before the government can deprive him of

his ‘life, liberty, or property.” U.S. Const. amend. XIV, § 1, cl. 3. Nonetheless, an individual

Limited precedent, in fact, seems to indicate the opposite. In Virginia, the District Court

upheld copying incoming mail, and in Indiana the District Court struck down the policy requiring

incoming mail to be on lined paper and suggested that copying mail was an obvious alternative.

(Doc. 18-9, Bratcher v. Clarke, 1:17-cv-474 2018 WL 4658685 (E.D. Va. September 26, 2018));

(Doc. 18-8, Sweeny v. Commissioner, Indiana DOC, 2018 WL 4566710 (S.D. Ind. September 24,

2018)). 00.

may not assert a claim under section 1983 for even an intentional deprivation of the

individual's property by a state employee, “if a meaningful post deprivation remedy for the

loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Smith cannot assert a

plausible due process claim here because Pennsylvania law provides him with an adequate

state remedy. See Shakur v. Coelho, 421 F. App’x 132, 135 (3d Cir. 2011) (per curiam)

(explaining that Pennsylvania Tort Claims Act, 42 Pa. C.S. §§ 8541-8546, provides an

adequate remedy for willful deprivation of property claim).4 In addition, “[t]he Pennsylvania

Department of Corrections ... grievance procedure provides an adequate post-deprivation

remedy,” and this procedure “forecloses [Smith's] due process claim.” Cruz v. SCI-SMR

Dietary Servs., 566 F. App’x 158, 160 (3d Cir. 2014) (per curiam) (citing Tillman v. Lebanon

Cty. Corr. Fac., 221 F.3d 410, 422 (3d Cir. 2000)).

V. CONCLUSION

For the foregoing reasons, Smith has not stated a plausible claim against any of the

named Defendants, and the Defendants have qualified immunity with respect to the

Plaintiff's First Amendment claims. The Court will grant Defendants’ motion to dismiss.

An appropriate Order follows. LAY

Date: August , 2020 fo (cd Ad hi, Uf’

Robert D~Mariani

United States District Judge

6 fefro

4 Additionally, Plaintiff presents no evidence that any Defendants were personally involved in

any alleged property destruction. See Rode Dellareiprete, 845 F.2d 1195, 1207 (3d Cir. 1988).