Moore v. Schuetzle, A4-01-038.
| Decision Date | 02 February 2005 |
| Docket Number | No. A4-01-038.,A4-01-038. |
| Citation | 354 F.Supp.2d 1065 |
| Parties | Anthony James MOORE, Plaintiff, v. Timothy SCHUETZLE, Elaine Little, Robert Coad, Denise Senger, Kathleen Bachmeier, Cordell Stromme, Mirna Stromme, Dr. Jeff Hostetter, and Dr. John Hagan, in their individual and official capacities, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Anthony James Moore, Bismarck, ND, pro se.
Lance Daryl Schreiner, Tracy Vigness Kolb, Zuger, Kirmis & Smith, Bismarck, ND, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF
Before the Court are (1) Plaintiff Anthony James Moore's Motion for Summary Judgment filed on November 2, 2004; (2) Defendants Dr. Jeff Hostetter and Dr. John Hagan's Motion for Summary Judgment filed on December 16, 2004; and (3) Defendants Timothy Schuetzle, Elaine Little, Robert Coad, Denise Senger, Kathleen Bachmeier, Cordell Stromme, and Mirna Stromme's Motion for Summary Judgment filed on December 16, 2004. Also before the Court is Plaintiff Anthony James Moore's Motion for Injunctive Relief filed on December 28, 2004. For the reasons set forth below the Defendants' motions for summary judgment are granted, the Plaintiff's motion for summary judgment is denied, and the Plaintiff's motion for injunctive relief is denied as moot.
The plaintiff, Anthony James Moore, is an inmate at the North Dakota State Penitentiary ("NDSP") in Bismarck, North Dakota. On April 13, 2004, Moore filed a pro se complaint asserting the Defendants had violated his civil rights pursuant to 42 U.S.C. § 1983. Since the filing of his initial complaint, Moore has filed a plethora of motions and requests. A second amended complaint was filed on May 18, 2004. On December 2, 2004, Moore filed a third amended complaint alleging that his legal mail had been opened outside of his presence on four separate occasions and that officers and employees of the NDSP had been deliberately indifferent to his serious medical needs.
Moore alleges that officials at the NDSP opened his legal mail on four separate occasions: December 31, 2002; March 22, 2003; December 24, 2003;1 and May 10, 2004.
On December 31, 2002, Moore filed a Step One Grievance claiming that his legal mail had been opened outside his presence. See Docket No. 144, Exhibit 3-B. In his grievance, Moore asserts that he "received legal mail opened December 30, 2002." Id. Chief of Security Cordell Stromme responded to the grievance by stating:
The Letter was opened by the Parole Dept. where it was sent by mistake. The letter came in on a weekend and was sorted by staff other than the regular mail staff. Letters do stick together sometimes. Anyway the mistake was made — the letter was sent to Mr. Moore — with a note apologizing for the mistake and explaining what happened. I do not see that any further action needs to be taken in this situation.
Id. On January 7, 2003, Moore filed an identical second Step One grievance, and it was rejected the same day. Id. On January 9, 2003, Moore filed a Step Two grievance. Id. On January 13, 2003, Warden Scheutzle responded, "I agree with the Step 1 response from COS Stromme." Id. On January 15, 2002, Moore filed an appeal to the Director of the Department of Corrections, Elaine Little. On February 11, 2003,2 Director Little responded as follows:
No one was being deliberately indifferent to you when this piece of mail was opened. You received an explanation and we will not reduce your sentence because mail was mistakenly opened. Your appeal is denied.
Id. The record does not identity from whom this piece of mail was sent.
On March 24, 2003, Moore filed a Step One grievance asserting that he "received legal mail opened March 22, 2003." See Docket No. 144, Exhibit 3-C. The letter in question was sent from the Fargo Police Department. On April 10, 2003, Administrative Services Manager Denise Senger responded to the grievance:
Due to the amount of mail we receive daily, some mistakes are periodically made. I can assure you that it was not intentionally done.
Id. That same day, Moore filed a Step Two grievance. On April 14, 2003, Warden Schuetzle responded as follows:
Apparently, your legal mail was inadvertently opened by staff when it came in on a weekend. This is not acceptable. We have changed our practice of sorting and screening mail that arrives on a weekend to prevent the chances this happens again in the future. There will be no award of PBSR, or any other sentence reduction as requested.
Id. The next day, April 15, 2003, Moore filed an appeal to Director Little. On April 29, 2003, Director Little responded, in part:
You have now appealed to me stating that this is an ongoing problem.
The Prisons Department policy requires that legal mail be opened in the presence of the inmate. I do not agree with you that this letter was opened on purpose. I am confident that staff did not read your mail. The Warden has taken appropriate action. Your request for a sentence reduction or the re-starting of your PBSR is denied.
On January 6, 2004, Moore filed a Step One grievance stating:
Id. On January 7, 2004, Barb Gross returned the grievance to Moore because he had exceeded his allowance of one grievance per week.3 The letter at issue was from the North Dakota Department of Corrections and Rehabilitation. On January 8, 2003, Moore filed a Step Two grievance. Warden Schuetzle responded the same day:
Anthony — This letter is not considered legal mail. See Handbook, page 40, 3rd paragraph. The envelope does not identify the name and official status of the sender — It is in a DOCR envelope. Your grievance is denied.
Id. Moore then appealed to Director Little. On January 27, 2004, Director Little responded, in part:
Technically, Warden Schuetzle is correct. However, for as long as I can remember, mail from the N.D. Department of Corrections and Rehabilitation has been treated as legal mail when it is addressed to an inmate in one of our facilities, without a return address indicating the specific name of the sender. I do not know exactly what occurred on 12/24/03, but it is possible that a staff member other than the Administrative Services mail clerk who normally receives our mail, processed the letter and inadvertently opened it.
I have directed my staff to include my name in the return address area of the envelope.
On May 17, 2004, Moore filed a Step One grievance indicating:
On May 10, 2004, I received legal mail opened outside of my presence. Officer [illegible] can verify that the envelope was opened when he passed out mail. Attached to this grievance is the envelope as proof, which is clearly stamped legal mail, on the envelope. Attempts made to solve the problem. I have submitted numerous grievances about my legal mail being opened outside of my presence. Remedy requested is an 10 year sentence reduction or one hundred thousand dollars in damages and punitive damages.
Id. The letter was from The Innocence Project of Minnesota, and the envelope was stamped "Legal Mail" in bold black letters. On May 18, 2004, Denise Senger responded by stating:
The letter was opened, but not read, based on a previously conveyed misunderstanding that the Innocence Project of Minnesota was not in fact a legal advocacy group.
Id. On May 19, 2004, Moore filed a Step Two grievance. Warden Schuetzle responded the same day stating:
An Attorney from the AG's Office informed staff that the "Innocence Project" was not considered legal mail by our policies. A second attorney has since changed that opinion. Staff have now been made aware to treat mail coming from the Innocence Project as legal mail. At the time of this letter arriving here, it was not considered "legal mail."
Id. On May 25, 2004, Moore appealed to Director Little. On June 7, 2004, Director Little responded by noting that the error concerning the status of the Innocence Project had been corrected. Id.
The NDSP policy regarding an inmate's mail defined privileged correspondence as:
Mail between an inmate and officials in the Department of Corrections & Rehabilitation, appointed or elected officials, Civil Liberties Union, courts, attorneys, law enforcement officials, or child support enforcement units.
See Docket No 144, Exhibit 3-A. The policy also provides that privileged correspondence is to be forwarded, unopened, to the inmate. Id. The mail is then opened in the inmate's presence to check for contraband. Id. The policy further provides:
1. Incoming or outgoing privileged correspondence shall be treated as privileged only if the name, official status and full legitimate address of the recipient appears on the envelope.
2. Incoming or outgoing privileged correspondence may beheld for a reasonable period of time, not to exceed 48 hours, to allow verification of the privileged status of the addressee.
3. Incoming privileged correspondence shall be opened in the presence of the inmate. Outgoing privileged correspondence when suspected of containing contraband may be opened in presence of the inmate upon authorization of the Warden or designee.
On April 18, 2002, Moore complained of abdominal, upper gastrointestinal problems. He was seen by Dr. G.D. Ebel who...
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