Opinion
4:01cv76-WS.
March 25, 2004
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the court is the magistrate judge's third report and recommendation docketed February 17, 2004. See Doc. 104. The magistrate judge recommends that the defendant's motion for summary judgment be granted in part and denied in part. Both parties have filed objections (docs. 108 109) to the report and recommendation.
Upon careful review of the record, this court has determined that the magistrate judge's report and recommendation should be adopted.
In Count I, the plaintiff — a parole-ineligible inmate serving a life sentence — challenges rules and policies of the Department of Corrections (the "Department") that not only require an inmate charged with a disciplinary infraction to be automatically placed in administrative confinement but also limit the type of staff assistance which is provided to inmates in such disciplinary confinement. The magistrate judge concluded, and this court agrees, that the plaintiff's evidence is insufficient to support the claim alleged in Count I.
In Count II, the plaintiff challenges the Department's policy of returning to the sender disapproved items of incoming mail within twenty-four (24) hours of receipt. He claims that the Department's policy deprives him of a liberty interest in receiving nonlegal mail from family and friends without due process of law. He seeks injunctive relief ordering the Department to change its policy to require mailroom staff to hold disapproved mail pending completion of the grievance process. The defendant contends that the plaintiff lacks standing to litigate this claim. The magistrate judge, and this court, disagree.
The plaintiff challenged this policy administratively both when he filed a grievance concerning the return of blank envelopes and when he filed an administrative petition to have disapproved incoming mail held pending review of any grievance filed with regard to that mail. The Department denied his grievance and his petition on the merits.
While conceding that the plaintiff has been affected by the policy in the past, the defendant contends that the plaintiff lacks standing to challenge the mail policy because he allegedly had no due process rights in the specific incoming items — blank envelopes, pre-paid blank postcards, an unauthorized letter from a former inmate, and pages torn from a magazine — that were previously disapproved and returned to the various senders. The defendant also contends that the possibility of future injury to the plaintiff is too remote to support his challenge to the mail return policy. The plaintiff's situation, however, is not analogous to that of ordinary citizens who seek to contest governmental conduct that might ensue. Here, the plaintiff is confined for life and will remain subject to the Department's mail return policy for life. Every item of his incoming mail will be inspected by the Department; and, should some mail room employee disapprove of any item in the plaintiff's incoming mail, such mail will be returned to the sender before the plaintiff has the opportunity to challenge the decision. Under these circumstances, the court finds that the plaintiff has standing to challenge the mail return policy.
Accordingly, it is ORDERED:
1. The magistrate judge's third report and recommendation is ADOPTED and incorporated by reference into this order.
2. The defendant's motion for summary judgment (doc. 17) is GRANTED as to Count I.
3. The defendant's motion for summary judgment (doc. 17) is DENIED as to Count II.
4. The clerk shall return the file to the magistrate judge for further proceedings as to Count II.
DONE AND ORDERED.