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WEBSTER v. MANN

January 2, 1996

JOHN W. WEBSTER, Plaintiff,
v.
CONNIE MANN, Defendant.



The opinion of the court was delivered by: HECKMAN

 Carol E. Heckman

 United States Magistrate Judge

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment, in accordance with 28 U.S.C. § 636(c). Pending for decision is defendant's motion for summary judgment (Item 51), and plaintiff's cross-motion for summary judgment (Item 58). For the following reasons, defendant's motion is granted, and plaintiff's cross-motion is denied.

 BACKGROUND

 Plaintiff filed a civil rights complaint under 42 U.S.C. § 1983 on March 14, 1990. In his complaint plaintiff alleged that Thomas Coughlin, Dennis Sherman, Walter Kelly, T.L. McIntyre, and Connie Mann had violated his First and Fourteenth Amendment rights by reading and confiscating his personal mail.

 It also alleged that his due process rights were violated because the prison officials had not complied with the New York State Department of Correctional Services ("NYSDOCS" Directive 4422.

 By an order dated June 26, 1991, the Hon. Richard J. Arcara granted defendants Coughlin and Kelly's summary judgment motion dismissing them from the case (Item 35). Thereafter, defendants Sherman and McIntyre were dismissed from the case for lack of personal involvement (Item 44). Connie Mann is the only remaining defendant in the case.

 The following facts are not disputed. On or about May 12, 1989, defendant Mann, Senior Mail and Supply Clerk at Attica Correctional Facility ("Attica"), opened a letter addressed to plaintiff from Robin Silvernail. The letter was opened to inspect for any contraband pursuant to Directive 4422, section III.G. When she opened the letter, a pamphlet from the New York State Department of Motor Vehicles ("DMV") regarding non-drivers identification cards fell out. Her curiosity being aroused, defendant Mann scanned the contents of the letter. It also contained hand-written instructions on creating false identification, an impressed seal of the State of New York, and a photocopy of the DMV pamphlet. These materials have been filed under seal as Item No. 55.

 These documents were confiscated by defendant and given to her supervisor. The documents were then turned over to the state police. The police obtained a search warrant to inspect Ms. Silvernail's residence (Item 1, Ex. A). Evidence of criminal activity was seized during the search, and Ms. Silvernail was indicated and pled to criminal possession of a forged instrument. No criminal action was taken against plaintiff, nor was he disciplined by prison officials in any way.

 Defendant now moves for summary judgment dismissing the complaint in its entirety on the grounds that plaintiff's First Amendment rights were not violated and that she complied with the Directive 4422, or alternatively, that she is not liable because of qualified immunity. Plaintiff cross-moves for summary judgment.

 DISCUSSION

 Summary Judgment

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable ...


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