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Pair v. Rose

United States District Court, D. Maryland

March 2, 2015

PERCY-EDWARD PAIR, JR. #213090 Plaintiff,
MARY JANE ROSE, Mailroom Manager, LT. L. K. HARBAUGH, Intel Officer, Defendants.


WILLIAM D. QUARLES, Jr., District Judge.

Pending is a Motion to Dismiss, or in the Alternative, a Motion for Summary Judgment filed by counsel for the Defendants, Mary Jane Rose, a mailroom manager at North Branch Correctional Institution ("NBCI"), and Lieutenant L. K. Harbaugh, a NBCI intelligence officer. (ECF 12). Percy-Edward Pair, Jr., pro se, who is an inmate at North Branch Correctional Institution, has filed a response in opposition. (ECF 14, 15).[1] Pair also filed a Cross-Motion for Summary Judgment with his declaration. (ECF 16).

Upon review of the papers and exhibits, the Court finds an oral hearing is unnecessary. See Local Rule 105.6 (D. Md. 2014). For reasons stated below, the Defendants' Motion (ECF 12), treated as a Motion for Summary Judgment, will be granted. The Plaintiff's Cross-Motion for Summary Judgment (ECF 16) will be denied.


I. Plaintiff's Claims

Pair brings this action pursuant to 42 U.S.C. ยง 1983 against the Defendants in their individual capacities, claiming that they violated his rights under the First, Sixth, and Fourteenth Amendments, and his right to due process. (ECF 3, p. 8). Specifically, Pair claims the Defendants conspired to obstruct his mail by intercepting and opening his outgoing mail "without there being clear and convincing evidence to warrant inspection." (ECF 3, p. 6). He alleges that all of his outgoing mail is forwarded by Mail Room Manager Mary Jane Rose ("Rose") to Lt. Harbaugh ("Harbaugh") for "unwarranted inspection." Id. Pair asserts that the Defendants obstructed his mail with the intent to prevent him from petitioning the government for redress of grievances, retaining a private investigator and counsel, reporting abusive and criminal activities; and exhausting his administrative remedies before the Commission of Correction and the Inmate Grievance Office ("IGO"). (ECF 1, p. 1, 3).

Pair states in his declaration that on September 29, 2011, February 29, 2012, July 18, 2012, and September 14, 2012, he sent mail concerning his "deliberate indifference claim" under ARP-NBCI-2022-11, to the IGO, but his mail never left the institution despite receiving confirmation otherwise from the mailroom. (ECF 1, ECF 16-3).[2] Pair has submitted the affidavit of fellow inmate Delmont Player who attests to volunteering to send materials to the IGO under his name for Pair. (ECF 3, ECF 14-2, ECF 16-3). Pair alleges the NBCI mailroom "has a long history of hindering prisoners from exhausting their administrative remedies with the Inmate Grievance Office and DOC headquarters, " stating that in 2011 an Administrative Law Judge recommended an investigation of mail handling practices after inmate Jean Germain proved he had mailed an ARP to the IGO which did not reach its destination. Id. [3]

Pair also alleges that on or about August 15, 2013, he was prevented from hiring Sharon Wiedenfield, a private investigator, because the mailroom manager forwarded his letter intended for the private investigator to the intelligence office for an unwarranted inspection. (ECF 3, p. 3; ECF 14, p. 32). The intelligence officer forwarded the letter to the Internal Investigation Unit ("IIU") without notifying Pair. Id. Pair explains that he intended to hire a private investigator to obtain retired correctional officer Lieutenant Damon T. Thomas's address in order to serve him with a summons. (ECF 3, p. 6).

Pair seeks a declaratory judgment and injunctive relief to order the Defendants to cease opening, delaying and or discarding his outgoing mail and correspondence, and preventing him for exhausting his administrative remedies. He also requests compensatory damages and punitive damages. (ECF 3, p. 8).

II. The Defendants' Response

Division of Correction ("DOC") mail policy is set forth in DOC directive DCD 250-1, which permits inmates to send and receive mail, reading materials, and publications. (ECF 12, Ex. 1). It reads in pertinent part:

Outgoing mail will not be opened unless there exists clear and convincing evidence to warrant inspection. In this event, the reasons and inspection will be documented. The Managing Officer or designees shall make the decision to open and inspect outgoing mail and shall ensure that the reasons for and results of the inspection are documented. The Managing Officer or designees shall withhold outgoing mail only when it is found to contain contraband, is evidence of a violation of a rule and/or regulation, or is the basis for requesting an investigation by the Division of Correction Internal Investigation Unit or any law enforcement agency.

Id. at 2.

Incoming and outgoing mail, reading materials or publications, except packages, are not held for more than 24 hours, excluding weekends and holidays, except in cases where contraband is found. Id. at 4. In cases in which outgoing mail is held for more than 24 hours, the inmate is provided a written statement that describes the materials withheld and sets forth the justification or reason(s) for the action. The written statement is served on the inmate within 48 hours after the decision to withhold materials is made. The decision may be appealed. Id. at 4.

Defendants have also submitted declarations in support of their Motion for Summary Judgment. Lieutenant Harbaugh ("Harbaugh") explains in his declaration that incoming non-legal mail may be opened and read without a mail cover. (ECF 12, Ex. 2). Outgoing mail may be read when the inmate has a "mail cover"[4] instructing the mailroom to set the inmate's letters aside. When there is a mail cover, an intelligence officer will read the mail. If mail is withheld, a ...

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