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LEMON v. ZELKER

May 31, 1972

Robert LeMON, Plaintiff,
v.
John L. ZELKER, Superintendent of Green Haven Correctional Facility, Stormville, New York, et al., Defendants


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

Memorandum Opinion And Order

MOTLEY, District Judge.

 Plaintiff, an inmate of Green Haven Correctional Facility, brings this civil rights action challenging certain conditions of his confinement. His complaint alleges essentially five types of unconstitutional conduct by defendants: 1) the opening and inspection of his legal correspondence, 2) threatening plaintiff with transfer to another correctional facility during the pendency of this suit, 3) not mailing certain legal correspondence to the Judicial Conference of the United States, 4) preventing plaintiff from communicating by mail with his sister, Mrs. Susan Allen and, 5) preventing plaintiff from communicating by mail with a daughter who is living with his common-law wife. Defendants now move for summary judgment on all of these causes of action pursuant to Rule 56, Fed. R. Civ. P.

 Summary judgment can be granted for defendants on plaintiff's first two allegations listed above. Richard L. Middlebrook, head correctional clerk at Green Haven, admits in his affidavit that plaintiff's legal correspondence is inspected, though denying the use of so subtle a means of doing so as "steaming" it open. Under the law in this Circuit "prison officials may open and read all outgoing and incoming correspondence to and from prisoners." Sostre v. McGinnis, 442 F.2d 178, 201 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740 (1972). Defendants are thus entitled to summary judgment on this charge.

 Assistant Attorney General A. Seth Greenwald affirms that "[plaintiff] has not been or threatened with a transfer to another correctional facility due to any of his past activities." Plaintiff does not controvert this assertion in his reply affidavit. Since plaintiff is not being threatened with transfer for engaging in constitutionally protected activities, defendants are entitled to summary judgment on this charge also.

 The next two claims -- preventing correspondence with the Judicial Conference and with plaintiff's sister -- involve disputed issues of fact, with defendants contending that they have not intercepted such written communications and plaintiff insisting they have. In this posture, these contentions cannot be resolved by summary judgment.

 As to plaintiff's fifth contention -- that he is prevented from communicating with a daughter who lives with his common-law wife -- we grant summary judgment for plaintiff on the undisputed facts now before us. Though Rule 56 does not specifically empower the court to grant summary judgment for the non-moving party, it has been consistently held that it may do so. See e.g. Time, Inc. v. Bernard Geis Associates, 293 F. Supp. 130 (S.D.N.Y. 1968); Briscoe v. Compagnie Nationale Air France, 290 F. Supp. 863 (S.D.N.Y. 1968).

 Plaintiff has asked prison authorities for permission to correspond with a daughter born during his common-law marriage. His probation report mentions two sons born to him during a prior, legal, marriage, but, while it reflects the fact that he lived with a common-law wife, it does not specify if any children were born of this union. Therefore, "[in] compliance with the normal procedure of business", prison officials "wrote to plaintiff's common-law wife requesting her permission to allow plaintiff to correspond with these children and to send photostatic copies of birth certificates to ascertain that these were her children" (Middlebrook affidavit, p. 2). *fn1" She did not reply, and for that reason plaintiff's daughter was not approved as a correspondent. *fn2"

 Defendants have attached to their moving affidavits a copy of the regulations they presumably relied on for this decision. Department of Correctional Services Administrative Bulletin # 20 (January 31, 1972) Rule 2 states:

 
"Correspondence with specific persons will be subject to identification by you of the individual by name and address, purpose of the correspondence, and verification from the individual that he or she desires to correspond with you.
 
* * *
 
"Special permission must be obtained by you from the Superintendent for correspondence with unrelated minors as parental or guardian permission is necessary. . . ." (para. 3)

 Page four of that administrative bulletin contains the following:

 
" Reference Rule 2: Upon an inmate's application to correspond with a person, a form letter should be sent to the person to determine relationships or associations with the inmate, whether the person desires to correspond with the inmate, and to ...

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