The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiff, a prison inmate, alleges that defendants violated his federal constitutional rights. Now before the court is a motion [#70] to dismiss the complaint in this action pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by defendant Angela Bartlett. For the reasons that follow, the application is denied.
Unless otherwise noted, the following are the facts of this case, taken from the Amended Complaint [#65] in this action. Plaintiff alleges that on May 11, 2004, while he was confined at Southport Correctional Facility ("Southport"), the Comptroller of the City of New York sent him a check in the amount of $650, apparently in settlement of a lawsuit of some type. Upon receiving the envelope containing the check, addressed to plaintiff, a member of Southport's mail room staff opened the envelope, removed the check, and deposited the check into plaintiff's inmate account. The mail room staff member then forwarded the check stub and a receipt to plaintiff. Apparently, once the funds were deposited into plaintiff's inmate account, officials at Southport applied all but $129.03 of the monies to pay off various debts owed by plaintiff, including money owed to the NYS Department of Taxation and Finance, postage advances, and court filing fees. (Pl. Motion to Supplement [#20], p. 4). This upset plaintiff, because he wanted to send the entire $650 to his family.
Plaintiff contends that the envelope containing the check was "legal mail," and therefore privileged mail, which should not have been opened outside of his presence. In this regard, plaintiff cites New York Department of Correctional Services ("DOCS") Directive 4421, entitled "Privileged Correspondence," which states, in relevant part, that "privileged correspondence" includes mail from the following: "Government/public officials. Any American federal, state, or local government official, department or agency; any official of a nation, state, or tribe of which the inmate is a citizen; or the correctional association of New York State." The Directive further states:
Confidentiality. Incoming privileged correspondence shall not be opened outside the presence of the inmate to whom it is addressed, and shall not be read without express written authorization from the facility superintendent.
Inspection . . . . All incoming privileged correspondence shall be opened and inspected, in the presence of the inmate to whom it is addressed, for the presence of cash, checks, money orders, and contraband and to verify, as unobtrusively as possible, that the correspondence does not contain material that is not entitled to the privilege. (Directive 4421 § B(1),(4)(b); see also, 7 NYCRR § 721.3 (detailing procedures for handling of inmate's privileged correspondence). Plaintiff filed an inmate grievance concerning the incident, which the Inmate Grievance Review Committee denied, responding as follows:
As per Mailroom SMC memo dated 5/14/04: The envelope in question was received from the New York City Comptroller. The envelope is a window envelope and the contents are clearly a check. The only thing enclosed in these envelopes are checks and they are part of a class action settlement.
They are opened, logged, and receipted in per Superintendent. The envelope and receipt are then sent to the inmate via Legal Officer. This is done to speed up the receipt and the mail is only handled once without having to be returned to the mail room. (Pl. Supp. Aff. [#13]). The Superintendent of Southport, Michael McGinnis ("McGinnis"), affirmed the Grievance Review Committee's determination, stating that the opening of the mail was "in accordance to Directive 4422 III, G2." (Def. First Production of Documents [#31], p. 5).*fn2
In this action, plaintiff contends that the incident at issue violated his First Amendment right to receive confidential legal mail. On that claim, plaintiff is suing DOCS "as a municipality," Michael McGinnis ("McGinnis"), the Superintendent of Southport, Angela Bartlett ("Bartlett"), Deputy Superintendent for Programs at Southport, Kathe Washburn ("W ashburn"), the Mail Room/Correspondence Supervisor at Southport, and Mike Ames ("Ames"), identified as the "Grievance/Mail Room Person" at Southport. Plaintiff alleges that McGinnis is personally liable for this claim because, as Superintendent, he implemented a a policy of illegally opening inmates' privileged mail. Plaintiff contends that Bartlett and W ashburn are liable on the claim because he complained to them about the situation, and they did nothing about it. Plaintiff contends that Ames is liable to him because he became aware of the allegedly illegal policy through his investigation of plaintiff's complaint, and failed to remedy the situation.
Subsequently, on or about May 24, 2004 ([#65] p. 11), plaintiff had officials at Southport issue a check in the amount of $120 from his inmate account, and send the payment to his family. However, some five months later, plaintiff's family apparently had not cashed the check, for reasons that are unclear. Someone at DOCS then stopped payment on the check. Plaintiff does not allege anything further about the funds involved, so it appears that, once payment on the check was stopped, the $120 was either placed back into his inmate account or was used to pay other outstanding debts. Nevertheless, plaintiff alleges that the stop payment order was retaliatory, and more specifically, that Bartlett stopped payment on the check in retaliation for plaintiff filing a lawsuit against her.
Plaintiff also contends that Bartlett and McGinnis "den[ied] [his] legal mail to go forward," and in that regard, he contends that Bartlett denied him "authorized advances" of postage. Specifically, the Amended Complaint indicates that on one occasion in April 2004, plaintiff attempted to mail unspecified legal mail from Southport, free of charge, and that Bartlett refused to approve an advance of postage unless plaintiff demonstrated that the mailing qualified for such postage under DOCS Directive 4421. (See, Amended Complaint, Exhibits 8-12). In that regard, it appears, from the documentation that plaintiff has submitted as part of his complaint, that Bartlett demanded that plaintiff demonstrate his entitlement to an advance of postage under Directive 4421, since he had already used up his allotment of free postage for that week, as well as a $20 advance. Plaintiff contends that Bartlett's actions were "unconstitutional," and that he was entitled to free postage pursuant to DOCS Directive 2788. (Id. Ex. 12). Apparently, he also maintains that McGinnis is liable because he approved of the alleged constitutional violation. (Amended Complaint [#65] p. 12) ("So did Sup't McGinnis.").
Finally, plaintiff alleges that Bartlett, McGinnis, W ashburn, and Ames conspired to violate his constitutional rights. (Amended Complaint [#65] p. 13) ("And together the above named defendants had an agreement between state actor and a private party to act in concert to inflict unconstitutional injury and put 'stop payment' which was an overt ...