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UNITED STATES EX REL. DEAN v. JOHNSON

September 11, 1974

UNITED STATES OF AMERICA ex rel. C. EDWARD DEAN
v.
ROBERT L. JOHNSON, Superintendent, State Correctional Institution at Graterford, Pennsylvania


James H. Gorbey, District Judge


The opinion of the court was delivered by: GORBEY

MEMORANDUM

 Defendant has filed a motion for summary judgment on the grounds that: (1) plaintiff has failed to allege any facts showing that the defendant has violated any of the plaintiff's constitutional rights; and (2) plaintiff has failed to state a claim upon which relief can be granted under the Civil Rights Act (42 U.S.C. § 1983).

 Plaintiff is an inmate of the State Correctional Institution at Graterford, Pennsylvania, and has filed a complaint in which he requests damages and injunctive relief under 42 U.S.C.A. § 1983; 28 U.S.C. §§ 1331 and 1343; and the First, Fourth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution.

 Plaintiff alleges that defendant has denied him the right to use stationery of his own choosing in his correspondence with family, friends, attorneys and government officials, and also that his personal correspondence is read by prison employees.

 Although this is a pro se complaint, there must be an allegation of facts as well as conclusions ( Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967)) indicating the specific conduct of defendant, a state official, which violates some constitutional right of the plaintiff.

 Assuming that, as superintendent of the State Correctional Institute, defendant is responsible for denying plaintiff the use of stationery of his own choice the denial does not result in a violation of any constitutional right. In Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 1060, 92 L. Ed. 1356 (1948), the Court stated:

 
"Lawful incarceration brings about the necessary withdrawal or limitations of many privileges and rights, a retraction justified by the considerations underlying our penal system."

 Obviously, if the limitation as to type of stationery would result in a curtailment of the prisoner's right to communicate with the courts, public officials, attorneys, as well as friends and family, it could not be justified by "considerations underlying our penal system." No such limitation is here alleged.

  In Gaito v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970), the plaintiff complained that he was compelled to use pink paper on which to file his legal papers, whereas prisoners in other state institutions used either green or yellow paper. The court stated:

 
"We fail to see any constitutional right violated by this procedure." Supra, page 849.

 The conclusion is irresistible that no constitutional right is infringed where the material used for communication is that supplied by the institution rather than that chosen by the prisoner.

 Turning next to the allegation that his personal correspondence is read by prison employees, and assuming the truth of such allegation, if it be a wrong, it is not a wrong of federal constitutional magnitude, therefore not cognizable under the Civil Rights Act. The cases have made a distinction on the basis of correspondence to family or friends as distinguished from that with courts, attorneys or public officials. In Frye v. Henderson, 474 F.2d 1263 at 1264 (5th Cir. 1973), the court stated:

 
"'The control of prison mail is a matter of prison administration.' Brown v. Wainwright, 5th Cir. 1969, 419 F.2d 1308; O'Brien v. Blackwell, 5th Cir. 1970, 421 F.2d 844. And as the district court held, '[the] mere censorship of a prisoner's mail, considered often by the courts, is but a proper adjunct to prison discipline, so ...

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