in outgoing mail not specifically intended for the addressee identified on the exterior of the envelope . . .," prohibited by Directive 4422(III)(B)(19) (id.). This portion of Directive 4422 addresses the practice of "kiting," which involves unauthorized correspondence between inmates (Item 33, Murray Aft., PP 13-15). Defendants have articulated several legitimate penological objectives for prevention of unauthorized inmate communications, such as protecting against the exchange of contraband or weapons, protecting the identity of confidential informants, and discouraging inmates from attempting to influence witnesses called to testify at disciplinary hearings (id.).
Accordingly, I find that Wende personnel had good cause, in the interest of prison order and security, and in the interest of ensuring compliance with legitimate prison regulations and directives regarding unauthorized inmate correspondence, to inspect and open plaintiff's letter addressed to his wife. This interference with plaintiff's non-privileged outgoing mail was within constitutional bounds. See Billups v. New York State, supra, 885 F. Supp. at 41 (opening of legal mail, returned for improper addressing, outside of inmate's presence did not violate his constitutional rights); France v. Coughlin, supra, 1987 U.S. Dist. LEXIS 3479, at *7, 1987 WL 10724, at *3 (inspection and opening of outgoing non-legal mail outside of inmate's presence "was within constitutional bounds").
In addition, there is nothing in the record to suggest that this single incident of opening plaintiff's nonprivileged mail outside of his presence caused him to suffer any damage. Cf. Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d Cir. 1975), cert. denied, 424 U.S. 973, 47 L. Ed. 2d 743, 96 S. Ct. 1476 (1976);
Walton v. Waldron, 886 F. Supp. 981, 986 (N.D.N.Y. 1995)(mail obstruction claim requires showing of harm).
Accordingly, defendants have met their burden of establishing that there are no genuine issues of material fact in dispute as to whether their conduct violated plaintiff's first amendment rights, and plaintiff "has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Defendants are therefore entitled to summary judgment dismissing the complaint as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed.R.Civ.P. 56(c).
II. Qualified Immunity.
Defendants are also entitled to summary judgment on the ground of qualified immunity. The doctrine of qualified immunity protects government officials from liability for money damages in actions arising out of performance of their discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As a general rule, government officials are immune from liability for money damages under 42 U.S.C. § 1983 unless they violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Id; Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir. 1995).
In determining whether a right is "clearly established," the court considers: (1) whether the right was defined with "reasonable specificity" at the time of the alleged conduct, (2) whether the decisional law of the Supreme Court and the Second Circuit support the existence of the right, and (3) whether a reasonable defendant official would have understood his acts were unlawful. Allen, supra; Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993); Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991), cert. denied, 503 U.S. 962, 118 L. Ed. 2d 211, 112 S. Ct. 1565 (1992)). Even when such rights are clearly established, qualified immunity will protect a government official "if it was objectively reasonable for [the official] to believe that his acts did not violate those rights." Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987). "The objective reasonableness test is met--and the defendant is entitled to immunity--if 'officers of reasonable competence could disagree' on the legality of the defendant's actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
Thus, a defendant is entitled to summary judgment on qualified immunity grounds when, "looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff," Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 189 (D.C.Cir. 1986), quoted in Robison, supra, 821 F.2d at 921, the court determines that no reasonable jury could conclude that it was objectively unreasonable for the defendant to believe that his or her conduct or actions did not violate an established federally protected right. Lennon, supra, 66 F.3d at 420. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Id.
In this case, as discussed above, at the time of the events complained of the law in the Second Circuit "was, and remains, that prison officials may permissibly inspect or read outgoing mail, especially non-legal mail, if there is 'good cause.'" France v. Coughlin, supra, 1987 U.S. Dist. LEXIS 3479, at *7, 1987 WL 10724, at *3 (quoting Heimerle v. Attorney General, supra, 753 F.2d at 13 n. 5); see also Golden v. Coombe, supra, 508 F. Supp. at 158-60. Here, "good cause" was established when the letter was reclassified as "incoming" mail because of insufficient postage, in accordance with DOCS directives. Thus, at the time the mail incident complained of occurred, defendants at the very least could reasonably have believed that the inspection and opening of plaintiff's letter was well within constitutional bounds because of the established rationale for the action.
Accordingly, no reasonable trier of fact could find that it was objectively unreasonable for the defendants to believe that their actions violated plaintiff's first amendment rights. Defendants are therefore entitled to summary judgment dismissing the complaint on the ground of qualified immunity.
For the foregoing reasons, plaintiff's motion for summary judgment (Item 38) is DENIED. Defendants' motion for summary judgment (Item 28) is GRANTED, and the complaint is dismissed. The Clerk of the Court is directed to enter judgment in favor of defendants.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
August 18, 1997