The opinion of the court was delivered by: Pisano, District Judge
THIS MATTER comes before the Court on the motion (Docket entry no. 89) of plaintiff, Richard Thompson, for partial summary judgment against the defendants, and defendants' cross-motion for summary judgment dismissing the Complaint against them. (Docket entry no. 55). Defendants' cross-motion also was submitted in opposition to plaintiff's motion for partial summary judgment.
These motions were held in abeyance to allow the deposition of plaintiff. The motions were renewed after the plaintiff's deposition took place in November 5, 2010. (See Docket entry nos. 94 and 96). This matter is being considered on the papers pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, plaintiff's motion for partial summary judgment is granted in part, and defendants' cross-motion is denied in part.
On or about April 20, 2009, plaintiff, Richard Thompson ("Thompson"), filed a civil rights Complaint, pursuant to 42 U.S.C. § 1983, against the following defendants: George Hayman, then Commissioner of the New Jersey Department of Corrections ("NJDOC"); Michelle R. Ricci, Administrator of the New Jersey State Prison ("NJSP"); and L. Jackson, M. Lincoln and Linda Ellison, correctional officers who were employed at the NJSP mail room. (Complaint, Caption, Docket entry no. 1). Defendants filed an Answer to the Complaint on October 23, 2009. (Docket entry no. 32). Following initial discovery, Thompson filed a motion for partial summary judgment on or about February 22, 2010. (Docket entry no. 48). Defendants filed a cross motion for summary judgment and in opposition to plaintiff's motion on April 15, 2010. (Docket entry no. 55). Both plaintiff's and defendants' motions were denied without prejudice by Order filed on September 29, 2010. (Docket entry no. 87). Thompson re- submitted his motion for partial summary judgment on October 13, 2010. (Docket entry no. 89). The motion was dismissed without prejudice to plaintiff re-filing same after discovery was complete. (Docket entry no. 91). By letter Order issued November 30, 2011, plaintiff's motion for partial summary judgment (Docket entry no. 89) was deemed re-filed. (Docket entry no. 94). By letter dated December 9, 2010, defendants re-submitted their opposition to plaintiff's motion and their cross-motion for summary judgment. (Docket entry no. 55).
Thompson is a federal prisoner serving a life sentence for murder.*fn1 He has been incarcerated at NJSP since January 12, 2007. Thompson claims that, from December 2007 through April 2008, his legal mail was opened and inspected outside of his presence on numerous occasions in violation of his First Amendment rights. In particular, Thompson alleges that the October 2007 NJSP Inmate's Handbook, which contained policies and procedures approved and implemented by defendants, Hayman, as NJDOC Commissioner, and Ricci, as NJSP Administrator, expressly authorized correctional officials to electronically and visually inspect all incoming legal mail outside of an inmate's presence before being delivered to the inmate addressee. (October 2007 NJSP Inmate's Handbook at pg. 45).
In his motion for partial summary judgment, Thompson attaches numerous forms indicating that his incoming legal mail was opened and examined outside his presence on the following dates: 12/15/07; 12/04/07; 12/05/07; 12/04/07; 01/26/08; 02/20/08; 03/28/08; 03/20/08; 03/09/08; and 06/10/09.*fn2 Thompson also attaches several administrative remedy forms to his Complaint. In each form, Thompson complains that his clearly marked legal mail was opened outside of his presence before being delivered to him. Responses to these grievances varied from a blanket denial that "mail room staff does not open and/or read clearly marked legal mail" to an admission that any mail so opened is done so "accidently" and not purposefully. In a letter dated March 27, 2008, the then-Acting Assistant Commissioner Lydell B. Sherrer wrote a response to Thompson's grievance stating that "mail room staff does not open and/or read clearly marked legal mail." He referred Thompson to Administrator Ricci for review and action on his grievances.
Thompson also provides a copy of an April 10, 2008 Memorandum from the NJSP Administrator Ricci, which amended the 2007 Inmate Handbook regarding the inspection of incoming legal correspondence. The amendment provides that any inspection of incoming legal mail shall be performed in the presence of the inmate addressee.
In their opposition to plaintiff's motion and their cross-motion for summary judgment, defendants attach the transcript of Thompson's February 24, 2010 deposition.*fn3 In their Statement of Undisputed Material Facts, defendants admit that plaintiff's incoming legal mail was opened and inspected outside of his presence from January 2007 through April 2008. Defendants also admit that Thompson signed remedy forms as to certain instances. However, defendants contend that Thompson can not show that defendant Hayman was aware of Thompson's complaints. Defendants also claim that Thompson's claims against Hayman and Ricci are impermissibly based on supervisor liability because Thompson admitted in his deposition that these defendants are liable to him as their names were on the cover of the Inmate Handbook.
(February 24, 2010 Deposition of Plaintiff at 18:15-19:10; 20:7-24).
Defendants further argue that the remaining defendant correctional officers can not be held liable because Thompson admits that he has no knowledge of who actually opened his mail; rather, he named those individuals as defendants who signed a receipt or worked in the mail room at the time his legal mail was opened. (February 24, 2010 Deposition of Plaintiff at 17:24-18:14).
A. The Summary Judgment ...