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THOMPSON v. JOHNSON

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 8, 1976

LEROY THOMPSON
v.
ROBERT L. JOHNSON (Supt.), et al.

The opinion of the court was delivered by: LUONGO

LUONGO, J.

 This matter is before me on the application of Leroy Thompson to hold Ronald Marks, Julius Cuyler and Charles Batdorf in contempt of a Consent Order entered December 3, 1974, and seeking an award of damages against each. Hearing was held on the application on May 19, 1975. *fn1" From pleadings and proof, I make the following

 FINDINGS OF FACT

 1. Plaintiff, Leroy Thompson, was an inmate at the State Correctional Institution at Graterford (hereinafter Graterford) from July 13, 1973 until March 11, 1975, on which date he was transferred to the State Correctional Institution at Dallas (hereinafter Dallas). Thompson was returned to Graterford on April 18, 1975, and remained there until the date of the hearing.

 2. On July 11, 1974, Thompson filed suit claiming, inter alia, interference with his mail. Pursuant to the recommendation of Magistrate Richard A. Powers, III, leave was granted to Thompson to proceed in forma pauperis, limited to the single claim of mail interference. Under Local Rule 9 1/2, student counsel, under the supervision of a practicing attorney, were appointed to represent Thompson.

 3. Bureau of Correction Administrative Directive No. 803, effective September 1, 1972 and revised March 12, 1973, provides in part:

 

"III. PRIVILEGED CORRESPONDENCE

 

A. Residents shall be permitted to send sealed letters to the following persons or organizations:

 

1. Elected federal, state or local officials

 

2. Appointed federal, state or local officials

 

3. Staff members of these agencies

 

4. Lawyers

 

5. News Media

 

B. Mail to these persons shall not be opened or censored. Mail from these persons shall be delivered to the housing unit officer, opened by the addressee in his presence and checked for contraband as a precaution in the case the mail is not from whom it is purported to be.

 

* * *"

 4. On December 3, 1974, prior to any trial on the merits of plaintiff's claim, the parties agreed to the entry of a Consent Order which provided:

 

"The parties to the above captioned action having agreed, in full satisfaction of the complaint herein, regarding mail interference, that the Superintendent of the State Correctional Institution at Graterford will insure that incoming 'privileged' correspondence, as defined in Bureau of Corrections Administrative Directive No. 803, addressed to plaintiff, shall be opened only by plaintiff, in the presence of his housing unit officer, in accordance with Section III. B of such directive and shall not be interfered with in any other way.

 

Now, this 3rd day of December, 1974, it is so Ordered."

 5. Robert L. Johnson, the named Superintendent-defendant, was Superintendent at Graterford until July 1, 1974.

 6. Ronald Marks became Acting Superintendent at Graterford July 1, 1974, and he served in that capacity until December 21, 1974. On or about December 3, 1974, Ronald Marks had actual knowledge of the Consent Order of December 3, 1974.

 7. Charles Batdorf was at all times material to these proceedings, the mail room supervisor at Graterford. On or about December 3, 1974, Charles Batdorf had actual knowledge of the Consent Order.

 8. Julius Cuyler became Superintendent of Graterford on December 26, 1974, and continued to serve in that capacity at the time of the hearing. Cuyler did not have actual knowledge of the Consent Order until some time in early May, 1975.

 9. After the Consent Order of December 3, 1974 was entered, Marks informed Batdorf of the Order and instructed him to take care to follow it. Marks placed a copy of the Consent Order in the Institution's Court Order file. Marks did not directly inform Cuyler of the existence of the Consent Order when Cuyler succeeded him on December 26, 1974.

 10. On February 19, 1975, Superintendent Cuyler received a communication from Thompson making a "formal complaint" that he had received privileged mail, a letter from the United States Department of the Treasury containing a savings bond, in an opened condition. This was Thompson's first complaint, after entry of the Consent Order, that his privileged mail was being opened.

 11. Upon receipt of the complaint, Cuyler caused his administrative assistant, Robert Wolfe, and the mail room supervisor, Batdorf, to investigate the complaint.

 12. Batdorf and Wolfe, in memoranda dated February 21, 1975 and February 26, 1975, respectively, reported that privileged mail as defined in Bureau of Corrections Administrative Directive No. 803, did not include bonds or checks from the Treasury Department.

 13. At the time of the entry of the Consent Order and at all times thereafter, Ronald Marks interpreted Administrative Directive No. 803 to include, as privileged mail, only mail from elected officials and high appointed officials and members of their staffs.

 14. Prior to March 24, 1975, Cuyler and Batdorf interpreted Administrative Directive No. 803 to include as privileged mail, only mail from elected officials and high appointed officials and members of their staffs.

 15. The interpretation by Marks, Batdorf and Cuyler was a reasonable and good faith interpretation of Administrative Directive 803 prior to March 24, 1975.

 16. On March 24, 1975, Ruth Simon, Assistant Attorney General for Eastern Pennsylvania, advised Cuyler that all mail from governmental agencies fell within Directive 803's definition of privileged correspondence.

 17. After being so informed, Superintendent Cuyler promptly notified the major of the guards, the business manager, the two deputy superintendents, Wolfe, Batdorf, and other prison staff members of the expanded interpretation that privileged mail included all mail from governmental agencies.

 18. Prior to March 24, 1975, the inmates' mail was sorted in such a manner that the privileged mail was separated from the non-privileged mail prior to any further sorting. All non-privileged mail was then opened and inspected for contraband. Privileged mail was broken down by block and inmate number and was placed in an envelope and delivered to the block with the non-privileged mail where it was to be opened by the inmate in the presence of an officer.

 19. After March 24, 1975, a new system of mail opening and distribution was adopted and was still in effect at the time of the hearing. Under the new system, all inmate mail is first sorted by inmate number, and then further sorted according to the cell block in which the inmate is housed. Inmate mail is handled three times before any mail is opened, greatly reducing the probabilities of the accidental opening of privileged mail. Since the new system has been in effect, the number of pieces of privileged mail opened not in the presence of the inmate addressee has been de minimis.

 20. Both prior to and after March 24, 1975, mail room employees were instructed to write "Opened by Mistake" and to initial the envelopes of any privileged mail which they accidentally opened in the mail room. None of the privileged mail Thompson claims to have received in an opened condition bears such notation. A letter from Temple University Law Center (P-15) was delivered to plaintiff at Dallas with the notation on the envelope (apparently written by someone at Dallas):

 

"Note: This envelope arrived at the Dallas Mail Room by van. This envelope was opened at the Graterford Mail Room and not the Dallas Mail Room."

 21. Superintendent Cuyler did not become aware of the existence of the Consent Order until the early part of May 1975. There were no violations of the Consent Order between the date on which he learned of its existence and the date of hearing.

 22. On May 8, 1975, Superintendent Cuyler sent the following memorandum to all affected personnel at Graterford:

 

"Effective Monday, May 12, 1975, the mail room personnel will log all legal mail for inmates in a logbook. This legal mail will not be opened. The mail room personnel will call the respective block and have the inmate sent to the mail room with a pass to pick up his legal mail. This inmate must have an ID card or be positively identified. The inmate will sign the logbook as a receipt of the legal mail being unopened and received. The inmate will open this mail in the presence of the mail room officer for inspection."

 23. Incoming mail at Graterford from December 3, 1974 until April 30, 1975 averaged between 2,300 and 2,700 letters each delivery day. From the inception of the logbook for legal mail until the date of the hearing, an average of 100 pieces of legal mail were received each day of delivery. 24. After the date of the Consent Order, the following pieces of mail were delivered to Thompson in an allegedly opened condition: Exhibit No. Date Received Return Address on Envelope P-6 Dec. 5, 1974 U.S. Postal Service Postal Inspector in Charge Philadelphia, Pennsylvania Official Business P-7 Jan. 16, 1975 Internal Revenue Service Official Business P-8 Jan. 28, 1975 Office of the Clerk United States District Court Philadelphia, Pa. 19107 Official Business P-9 Feb. 6, 1975 Department of the Treasury Bureau of the Public Debt Parkersburg, West Virginia 26101 Official Business P-10 Feb. 26, 1975 Commonwealth of Pennsylvania Department of Education Box 911, Harrisburg, Pa. 17126 P-11 Feb. 26, 1975 Office of the Clerk United States District Court Philadelphia, Pa. 19107 Official Business P-12 Feb. 28, 1975 Office of the Clerk United States District Court Philadelphia, Pa. 19107 Official Business P-13 March 6, 1975 Department of the Treasury Bureau of the Public Debt P.O. Box 509 Parkersburg, W. Va. 26101 Official Business P-14 March 6, 1975 Office of the Clerk United States District Court Philadelphia, Pa. 19107 Official Business P-15 March 11, 1975 Temple University Philadelphia, Pennsylvania 19122 Joseph Tilghman 614 Temple Law Center Phila., Pa. 19122 P-16 April 28, 1975 Department of the Treasury Bureau of the Public Debt P.O. Box 509 Parkersburg, W. Va. 26101 Official Business

19760408

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