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Institutionalized Policy to Deprive Appeal of Confiscated Mail Violates Constitution

A Massachusetts federal district court denied summary judgment to prison officials who confiscated a prisoner’s mail and took actions that deprived him of his right to appeal that confiscation. The civil actions complaint was filed by MCI-Walpole prisoner Michael Oarenti.

On November 14, 1983, mailroom guard Csaba Revasz confiscated three newspaper articles sent to Parenti that detailed the 1980 prison riot at the New Mexico Penitentiary. Revasz sent Parenti a handwritten note that said Revasz had “removed from (Parenti’s) letter a series of newspaper articles which were, due to the nature of the contents.” The note said they were turned over to property guard Jay Bluestien.
Parenti sent a letter to Walepole’s Superintendent, Joseph Ponte, to inform him of the confiscation, criticize the procedures utilized, and to request to know why the articles were confiscated so he could appeal that confiscation. A response by Ponte’s assistant, James Smith, advised that the materials had been picked up by Parenti’s visitor at the direction of Bluestien.

In his compliant, Parenti alleged his free speech and due process rights were violated. The court held he presented sufficient evidence for a reasonable jury to conclude the acts complained of were intentional, reflecting a customary, authorized procedure.

While prison officials can inspect and censor prisoner correspondence to (1) further a legitimate penological interest in security, internal order, and prisoner rehabilitation, and (2) the practices represent the least restrictive alternative to further that interest, the prisoner must be (1) notified of the rejection, (2) the author of the letter to the prisoner must be given a reasonable opportunity to protest that decision, and (3) complaints must be referred to a prison official other that the person originally disapproving it.

The Court found that Ponte had the responsibility to ensure compliance with these mail regulations. Although there was no evidence in the record of Ponte’s direct actions, there is evidence that he delegated an untrained assistant to handle prisoner mail. Thus, it could be concluded he knew or should have known that violations of prisoners’ rights would likely occur, and he did noting to prevent such violations.

It was further held that the weight of the evidence that arguably indicates a certain pervasive-perhaps institutionalized- indifference to the rights of prisoners at Walpole. Bluestien’s customary act of intentionally sending Parenti’s mail out of the prison before affording him the right to instruct Bluestien as to the manner in which the mail should be handled can be inferred as an effort to deprive Parenti of his right to appeal.

Thus, the defendants were not entitled to summary judgment and discovery was ordered to continue. See: Parenti v. Ponte, USDC, D. Mass., No. 84-1871-WF (Jan. 19, 1990).

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Related legal case

Parenti v. Ponte

MICHAEL PARENTI, Plaintiff, v. JOSEPH PONTE, ET AL, Defendants

C.A. No. 84-1871-WF


January 19, 1990, Decided





Plaintiff Michael Parenti, who was formerly incarcerated at MCI-Walpole, has brought this suit under 42 U.S.C. § 1983 against defendants Csaba Revasz, the Institutional Mail Officer at MCI-Walpole at the time of the alleged violation; Jay Bluestein, the Institutional Property Officer; and Joseph Ponte, MCI-Walpole's Superintendent. Plaintiff alleges that Revasz and Bluestein violated his First and Fourteenth Amendment rights, and that Ponte violated his Fourteenth Amendment rights, when three newspaper articles mailed to him from outside the prison were confiscated by prison officials and immediately allowed to be removed from the prison. 1


1 At the March 24, 1988 hearing on defendants' motion for summary judgment, plaintiff's counsel advised the court that plaintiff was not asserting a First Amendment claim against Ponte.

Defendants Ponte and Bluestein have moved for summary judgment. At a hearing on this motion held on March 24, 1988, this court denied Bluestein's motion with regard to the First Amendment claim against him. The court noted that Procunier v. Martinez, 416 U.S. 396 (1974) set forth [*2] clearly prisoners' First Amendment rights in material such as the mailings at issue here and the need for adequate procedures to ensure those rights. The court cited evidence in the record that defendant Bluestein knew that he was confiscating contraband mail and ruled that his qualified immunity claim should fail, and that he was not entitled to summary judgment on plaintiff's First Amendment claims. The court did not rule on the summary judgment motions with respect to plaintiff's Fourteenth Amendment claims.

Subsequent to the hearing, the parties submitted further briefing on whether the Parratt/Hudson doctrine applies to a denial of plaintiff's liberty interests without due process of law. See Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984). After reviewing these submissions, the court again heard argument on the summary judgment motions on February 24, 1989. As authorized at that hearing, plaintiff subsequently deposed Ponte's administrative assistant, James Smith. Additional submissions have been made as a result of that deposition.

The court has considered the deposition testimony and briefing submitted to the court since the February [*3] 24, 1989 hearing, as well as all the material and arguments submitted throughout the course of this litigation. For the reasons set forth below, the court concludes that Ponte and Bluestein's motions for summary judgment on the claims that they each violated plaintiff's Fourteenth Amendment due process rights must be denied.


Except where otherwise indicated, the following facts are undisputed.

On November 14, 1983, while plaintiff was incarcerated at MCI-Walpole, defendant Revasz confiscated from plaintiff's mail three newspaper articles that had been sent to plaintiff by a woman named Mara Taub. The articles apparently described the events surrounding the 1980 prison riot at the New Mexico Penitentiary. See Affidavit of Mara Taub, Attachment A to the Complaint. The same day, Revasz sent a handwritten note to plaintiff informing him that Revasz had "removed from [plaintiff's] letter a series of newspaper articles which are contraband, due to the nature of the contents." Attachment 8 to the Complaint. Revasz stated in the note that he had turned the articles over to "the property officer," defendant Bluestein. See id. Ms. Taub was not notified that the articles [*4] were confiscated.

On December 2, 1983, plaintiff sent a letter to defendant Ponte, Superintendent at MCI-Walpole, informing Ponte that the articles had been confiscated, and criticizing the procedures used in doing so. Specifically, plaintiff argued in his letter that he was entitled, pursuant to 103 C.M.R. §§ 481.100 and 481.17, to know why the articles were confiscated, to be notified that he could appeal the confiscation, and to be informed of the procedures for so doing.

In addition, plaintiff requested information concerning the content of the confiscated articles so that he could effectively appeal the decision to confiscate. James Smith, Ponte's administrative assistant, responded to plaintiff's letter on December 12, 1983. Smith informed plaintiff that the articles had been picked up by plaintiff's visitor on November 14, 1983, apparently at the direction of defendant Bluestein. See Attachment D to the Complaint. Plaintiff was never given written notice of his right to appeal, or provided with the information he requested in his December 2, 1983 letter.

Plaintiff's complaint sets forth four grounds for recovery. In Count I, plaintiff claims that defendants' confiscation [*5] of the articles violated his constitutional rights to free speech and due process, as those rights are secured by the First and Fourteenth Amendments, respectively. In Count II, plaintiff alleges that defendants' failure to provide him with an opportunity to appeal the decision to confiscate the articles constituted a denial of due process under the Fourteenth Amendment. Count III alleges that, in allowing the confiscated articles to be removed from the prison without prior notice to plaintiff, defendants deprived plaintiff of his right to appeal and/or return of the articles, in violation of his rights to free speech and due process. Finally, in Count IV, plaintiff claims that defendants violated his due process rights by failing to refer his complaint to an appellate authority, and by failing to provide him with the information he requested in order to contest the confiscation.

As mentioned above, defendants Ponte and Bluestein have moved for summary judgment on the claims against them. The court denied Bluestein's motion on the First Amendment claim at the March 24, 1988 hearing. The court now considers the motions for summary judgment on the Fourteenth Amendment due process claims [*6] asserted against defendants Ponte and Bluestein.


A. The Summary Judgment Standard

Fed. R. Civ. P. 56(c) provides that summary judgment shall be granted:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.

The function of summary judgment is "to pierce the formal allegations of facts in the pleadings . . . and to determine whether further exploration of facts is necessary." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (citations omitted), cert. denied, 425 U.S. 904 (1976). The court must examine the record "in the light most favorable to . . . the party opposing the motion." Poller v. Columbia Broadcasting System, 368 U.S. 464 (1962).

Although the moving party carries the burden of showing that he is entitled to summary judgment, Rule 56 sets forth a bifurcated standard under which the opposing party must establish the existence of a fact that is both "genuine" and "material." Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986). [*7] The substantive law of a case determines whether a fact is material. Id. at 248. As to genuineness of the factual dispute, the Supreme Court has stated that:

[t]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not significantly probative summary judgment may be granted.

Id. at 249-50 (citations omitted). See also Matsushita Electrical Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986) (opponent must "do more than simply show that there is some metaphysical doubt as to the material facts.").

B. The Elements of the Procedural Due Process Claim

In Parratt v. Taylor, 451 U.S. 527 (1981), the Supreme Court ruled that a plaintiff who suffered a loss of property through a random, unauthorized and negligent act could not bring a § 1983 action if state tort law provided an adequate post-deprivation remedy which satisfied the requirements of due process. In Hudson v. Palmer, 468 U.S. 517, 533 (1984), the Court extended the Parratt rule to intentional, but random and unauthorized acts which deprived a person of [*8] property, as long as there exists under state law an adequate post-deprivation remedy.

In Daniels v. Williams, 474 U.S. 327 (1986), the Court further extended the Parratt/Hudson doctrine and ruled that the due process clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property. Thus, a plaintiff who can only claim a negligent deprivation of liberty or property cannot, as a matter of law, sustain a claim alleging a violation of his due process rights.

In their submissions to this court, the parties have addressed the extent to which the Parratt/Hudson doctrine applies to the instant case. Plaintiff has argued that, since the Supreme Court has traditionally accorded more protection to liberty than to property interests, it would be improper to extend the doctrine to intentional deprivations of liberty interests, of which this is an alleged example. See, e.g., Addington v. Texas, 441 U.S. 418 (1979); Santiago v. Garcia, 821 F.2d 822 (1st Cir. 1987). Both defendants, however, have argued that the Parratt/Hudson doctrine applies both to negligent and to intentional but unauthorized deprivations [*9] of due process rights involving liberty as well as property interests, and that any objectionable action for which they are responsible should be characterized as negligent or, at most, intentional but unauthorized. In either case, defendants argue, the Parratt/Hudson doctrine would apply. See, e.g., Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984). Defendants contend that the plaintiff has an adequate post-deprivation remedy under the Massachusetts Tort Claims Act, the Massachusetts Civil Rights Act, the Massachusetts Declaratory Judgment Act, and common law tort actions. Thus, defendants argue, plaintiff's procedural due process claims against them must be dismissed.

This court has considered carefully whether the Parratt/Hudson doctrine applies equally to deprivations of liberty and to property interests. The court has concluded, however, that it is not necessary or appropriate to decide this issue at this time. 2 Despite the plaintiff and defendants' disagreement on the breadth or applicability of the Parratt/Hudson doctrine to deprivations of liberty interests, the parties all agree-- and the law is clear--that there are certain situations which fall outside [*10] the ambit of the doctrine. Specifically, the doctrine is inapplicable when there is an intentional and authorized deprivation of due process rights. See Logan v. Zimmerman Brush Co, 455 U.S. 422, 435-437 (1982); Lamoureux v. Haight, 648 F. Supp. 1169, 1174 (D. Mass. 1986). 3


2 This issue may be clarified by the Supreme Court this term. See, Burch v. Apalachee Community Mental Health Service, 840 F.2d 797 (11th Cir. 1988), cert. granted sub nom. Zinermon v. Burch, U.S. , 109 S.Ct. 1337 (1989).

3 The doctrine also does not apply when the alleged deprivation is of substantive rather than procedural due process. See Lamoureux v. Haight, 648 F. Supp. at 1175; Holland v. Breen, 623 F. Supp. 284, 288 (D. Mass. 1985).

Since there exists a genuine issue of material fact regarding whether the actions of Ponte and Bluestein were intentional and, if intentional, whether these actions reflected customary, authorized procedure, summary judgment must be denied.


In Procunier v. Martinez, the Supreme Court decided that the right to uncensored communication by mail, grounded in the First [*11] Amendment, is a "liberty interest" under the Fourteenth Amendment, even though that interest is qualified for inmates. 416 U.S. at 418. The Court held that prison officials may inspect and censor inmate correspondence as long as the regulations authorizing such practices (1) further a legitimate penological interest in security, internal order, and prisoner rehabilitation, and (2) represent the least restrictive alternative for achieving the state's legitimate interest. The Court also held that "the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards." Id. at 418. Specifically, the inmate must (1) be notified of the rejection of a letter written by or addressed to him; (2) the author of that letter must be given a reasonable opportunity to protest that decision; and (3) complaints must be referred to a prison official other than the person who originally disapproved the correspondence. Id. at 418-19.

These Procunier standards are incorporated in certain Massachusetts and Walpole regulations that were in effect at the time plaintiff's mail was censored. Pursuant to these regulations, when any mail addressed [*12] to an inmate is received at the institution but is not delivered to the inmate because it has been designated contraband, the inmate and the sender shall be promptly notified of the reason for refusing to deliver the mail, and of the fact that a written appeal may be submitted by the inmate or sender to the Deputy Superintendent for Operations. The Deputy Superintendent for Operations "shall within five (5) working days of the receipt of such an appeal, make a decision and notify the appellant or refer the appeal to the Superintendent . . . The Superintendent shall, within five (5) working days of the receipt of an appeal, make a decision and notify the appellant. . . . The appellate authority, who shall be appointed by the Superintendent, subject to the approval of the Commissioner or his designee, shall be an official other than the person who originally disallowed the mail." 103 WAL § 481.17. See also 103 C.M.R. § 481.17.

Moreover, according to the Department of Corrections and internal Walpole regulations, Ponte, the Superintendent at Walpole, was responsible for administering the process by which prisoners appealed the designation of material as contraband. See 103 C.M.R. [*13] §§ 403.09, 403.23, 481.07, 481.15, and 481.25; and 103 WAL §§ 403.15, 481.17; and Ponte Deposition, p. 36. In order for the Procunier standards to be properly effectuated at Walpole, therefore, two things had to occur: the regulations had to be in place, and the Superintendent had to ensure their proper usage. Failure to enforce the standards would not simply be a failure to enforce a state or prison regulation. See Davis v. Scherer, 468 U.S. 183 (1984). Rather, if the minimum standards mandated by Procunier were not met, it would amount to a constitutional violation.

On December 2, 1983, plaintiff sent a letter to Ponte, complaining of the censorship of his incoming mail and objecting to Revasz's failure to inform him of the nature of the censored articles and his right to file a written appeal of the confiscation to a designated appellate authority pursuant to 103 C.M.R. § 481.17. In response to this letter, Smith notified plaintiff that Revasz had deemed the articles to be contraband and had forwarded them to Bluestein. The articles had been sent out of the institution on November 14, 1983.

Exactly what role Ponte played in the deprivation of plaintiff's right to appeal [*14] the confiscation of his mail is unclear from the affidavits, depositions and briefs submitted to the court. 4 One version of the situation includes the following evidence.


4 Indeed, although Ponte has consistently denied violating Parenti's Fourteenth Amendment rights, his rationale has not been consistent. Ponte has argued that he authorized his Administrative Assistant to handle certain matters on his own, and that Ponte had neither actual knowledge nor reason to know of the alleged violation and could not be held responsible for his assistant's actions. Ponte next argued that he did not violate plaintiff's Fourteenth Amendment rights because Ponte could not be responsible for reviewing complaints that were short-circuited and never received his personal attention. In his most recent submission, Ponte concedes that for purposes of his summary judgment motion, any actions taken by Smith are attributable to Ponte.

Ponte admits that it was his responsibility to make sure that there was compliance with the effective regulations pertaining to inmate mail (Ponte Deposition, p. 36); that he routinely relegated the screening of his mail to his assistant and that he does not recall [*15] giving the assistant guidance regarding the channeling of mail (Ponte Deposition, pp. 111-13; Ponte Affidavit, par. 3); that he would consider an inmate's isolated complaint of interference with his property, such as the plaintiff's, to be an appropriate matter for his assistant to handle (Ponte Affidavit, par. 5); that he would consider plaintiff's complaint a minor, correctable matter (Ponte Deposition, pp. 105-07); and that he never gave his assistant explicit directions as to the manner of handling inmate complaints and did not require his assistant to report to him on a regular basis concerning such complaints. (Ponte Deposition, pp. 99, 101-02, 111-13).

Viewing this evidence and the other evidence presented in the light most favorable to Parenti, it would be permissible for a jury to infer that Ponte intentionally delegated the procedures regarding mail to his assistant, Smith. Even if Smith's response to plaintiff-- which did not provide for or acknowledge the appeal process-- was negligent or unintentional, Ponte's actions in delegating the responsibility were intentional. Additionally, despite the fact that very specific procedures were enacted to deal with complaints such [*16] as plaintiff's, Ponte did not advise his assistant about the mail regulations. Thus, it would be reasonable for a factfinder to conclude from this that Ponte had, by trusting his uninformed assistant to administer the mail appeal regulations, authorized a procedure from which he knew or should have known that violations of inmates' rights would be likely to occur, and yet he did nothing to prevent such violations.

This inference may be reinforced by evidence in the record regarding the actions of Bluestein, the Walpole Property Officer. Bluestein testified that it was his custom, while holding contraband already designated by the inmate for pick-up, to put any additional contraband material received with the previously designated contraband. Contrary to the requirement of the relevant property regulations, he customarily did this without first notifying the inmate of the existence of the new material and getting instructions from the inmate as to the manner of disposing of the items. 5 When the envelope containing the articles at issue in the instant case was given to him by Revasz, Bluestein did not inform plaintiff of the new contraband; he merely put it with plaintiff's other [*17] contraband. Bluestein Affidavit of February 3, 1988, pars. 7, 15; Bluestein Deposition, pp. 118-20.


5 According to the Walpole property regulations in effect at the time of the conduct in question, an inmate "will be notified that it is his responsibility to have the personal property, which was declared contraband removed from MCI Walpole . . . Within one week of receiving a list of contraband property, which is being temporarily stored by institution (sic), an inmate shall notify the Property Officer in writing on a form provided for such purpose, of his selection of manner to dispose of the items . . . Upon receiving written notification from an inmate, the Property Officer shall arrange for the disposal of the property and shall note on the inmate's inventory . . . the date and method by which the items were disposed . . ." 103 WAL 403.08. See also 103 CMR 403.13.

There is a synergy between this evidence and the evidence regarding Ponte's delegation of responsibility to his assistant without giving proper instructions to his assistant or overseeing his actions. It arguably indicates a certain pervasive-- perhaps institutionalized-- indifference to the rights of inmates [*18] at Walpole. Since a jury could reasonably construe Ponte's involvement in the deprivation of plaintiff's due process rights to have been intentional and, since effectuated by the Superintendent, authorized, summary judgment may not be granted. See, Berlanti v. Bodman, 780 F.2d 296, 301 (3rd Cir. 1985) (the fact that state officials have a custom or practice to violate procedure established by state law removes their conduct from the Parratt post-deprivation remedy exception for "random and unauthorized acts."); Gregory v. Town Pittsfield, 470 U.S. 1018, 1022 (O'Connor, J. for three Justices dissenting from denial of a petition for writ of certiorari) (Parratt inapplicable where deprivations reflected the town's policy despite state law to contrary).

Another version of the events leading to the alleged deprivation of plaintiff's due process rights has been proffered by Smith, who was Ponte's Acting Administrative Assistant at the time of the conduct in question. Smith testified that although he had no recollection of reviewing or responding to plaintiff's challenge to the confiscation of his mail, Smith's practice was to review inmate mail, forward it to Ponte, and [*19] await Ponte's directions as to the manner in which Ponte wished to respond to each letter. Smith Deposition, p. 26. More specifically, Smith testified:

Basically in the morning I picked the mail up and just opened the mail that was addressed to the superintendent, Mr. Ponte, and read it through, and then I would give it to him for his, you know, for his decision, what did he want to do with it. And he would respond to me with either a note or orally, whatever . . . I would respond to it, if he wanted the letter sent to a specific person, that's how it was routed . . .

Smith Deposition, pp. 26, 28. Smith did not believe it was his role, as Acting Administrative Assistant, to make decisions. Smith Deposition, pp. 20-21.

Smith did acknowledge that there were certain circumstances in which he would attempt to handle an inmate complaint without first referring the matter to Ponte. Those instances were limited to inmate letters raising "minute needs," such as when an inmate did not receive an incoming telephone call or was unable to make a telephone call (Smith Deposition, p. 25) or where an inmate was not allowed to receive a pair of sneakers brought to him by a visit. Smith Deposition, [*20] p. 56. In these instances, Smith would attempt to resolve the matter himself and, if he was unable to do so, would then refer the matter to Ponte. Smith Deposition, p. 25. Smith testified with respect to these "minute needs":

I'd like to emphasize here, anything with any bearing that had to have a decision made on, that was not my role. I mean, I want to make sure -- I was working directly for the superintendent . . . And I wanted his approval or denial or whatever on it. That's how I basically worked out of that office.

Smith Deposition, pp. 56-57. When asked directly whether there was ever an occasion where he took the initiative regarding an inmate's complaint concerning mail, Smith responded:

From day 1 when I started at Walpole, that was the big issue, any mail problems, you know, it's a federal offense, and you are not to tamper with it, and it goes right to the -- any problems -- it goes to the superintendent's office, and it's -- it would be his, you know, problem, to do whatever he wanted to do with it.

Smith Deposition, pp. 60-61. Finally, when asked if he would ever have taken it upon himself to make any decision on an inmate's complaint regarding mail, Smith responded [*21] "[n]o way." Smith Deposition, p. 61.

Viewing this evidence in the light most favorable to plaintiff, a reasonable factfinder could properly conclude that Smith had a custom and practice of sending to Ponte complaints concerning inmate mail; that Ponte did see plaintiff's letter regarding his mail; and that Ponte instructed Smith to respond to plaintiff. 6 If this permissible conclusion were indeed reached, Ponte's actions would have been intentional. Although there is no direct evidence in the record that Ponte's actions in this case, if he received Parenti's letter, reflected his general policy, the fact that he was the official with final authority over plaintiff's procedural rights might be enough to place his actions beyond the purview of the Parratt/Hudson doctrine concerning random, unauthorized acts. Even if this is not the case, Smith's recent deposition testimony raises enough questions about the mail procedures generally, and about Parenti's letter specifically, at least to prompt further inquiry on this point. Thus, plaintiff will be allowed, if he wishes, further discovery regarding the handling of contraband mail and possible appeals concerning such mail at Walpole [*22] during the relevant period.


6 Smith's letter to Parenti stated:

This is in response to your most recent correspondence dated December 2, 1983 regarding newspaper articles not allowed into the institution. The Mail Officer forwarded the newspapers, which were considered contraband, to the Property Officer. Sgt. Bluestein informs me that your visitor picked up all of your contraband property on November 14, 1983.

See Attachment D to the Complaint.

Finally, if a reasonable factfinder were to credit the entire body of evidence before the court and try to assess the evidence in the light most favorable to plaintiff, it appears permissible for a reasonable factfinder to conclude that, despite the Department of Corrections and Walpole mail regulations in effect, neither Ponte nor his assistant took responsibility for enforcing them. Rather, it appears reasonably possible that Ponte thought Smith handled the complaints and that Smith thought Ponte handled them. Thus, if Smith did not receive explicit instructions from Ponte to respond to plaintiff's letter by acknowledging and following the necessary procedures, then Smith might have inferred that no further action was necessary. [*23] This would explain Smith's cursory response to plaintiff, which simply fails to acknowledge the procedural violations attendant to the designation of the newspaper articles (which were included in mail sent to plaintiff) as contraband and their having been picked up before any notification occurred or any appeal was permitted.

If one thing is clear from these several scenarios, it is that there is materially conflicting evidence in the record. It would be inappropriate to permit Ponte to benefit from potential confusion generated by such conflict. Rather, having considered the many scenarios suggested by the evidence in the record, and examining the record in the light most favorable to plaintiff, this court concludes that summary judgment may not be granted. Assuming without deciding that the Parratt/Hudson doctrine applies to deprivations of liberty interests as well as property interests, the doctrine does not protect intentional, authorized deprivations of due process rights from § 1983 claims. Since a reasonable factfinder might conclude that Ponte's actions were intentional and authorized, Ponte's request for summary judgment on plaintiff's due process claim must be denied.


Bluestein contends that, as the Property Officer at Walpole, he had no responsibility for enforcing the mail procedures. A reasonable person in his position, he reasons, would not have known that he was violating plaintiff's due process right with respect to the mail procedures when he sent the contraband mail out of the prison. Bluestein asserts that he should be granted qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

As the court indicated at the July 1, 1986 and March 24, 1988 hearings on this matter, however, Bluestein does not have qualified immunity on the claims asserted against him. The rights recognized in Procunier were clearly established as of 1974, and were nearly a decade old by 1983, the time of the alleged violation of plaintiff's rights. See, e.g., McNamara v. Moody, 606 F.2d 621, 623 (5th Cir. 1979) ("The law in this areas has been well-settled since the Supreme Court's decision in Procunier v. Martinez . . ."), cert. denied, 447 U.S. 929 (1980). Even though Bluestein was not given primary responsibility for enforcing the mail regulations, a reasonable person in [*25] his position should have known of their existence and that sending contraband mail out of the prison might have infringed on plaintiff's rights. This conclusion is reinforced by the testimony of Smith, who-- like Bluestein-- did not have direct responsibility for enforcing the mail regulations: "From day I when I started at Walpole, that was the big issue, any mail problems, you know, it's a federal offense, and you are not to tamper with it." Smith Deposition, pp. 60-61.

In addition to the lack of a compelling qualified immunity defense, the existence of material disputed facts with regard to Bluestein's conduct precludes summary judgment. There is evidence in the record that Bluestein knew that certain regulations existed pertaining to inmate mail. Bluestein Deposition, p. 100. Although Bluestein did not play any role in the characterization of mail as contraband or denying plaintiff an opportunity to appeal the characterization, Bluestein received the material and placed it with other contraband already designated for pick-up by plaintiff. Bluestein Affidavit of February 5, 1988, pars. 10-12, 17-18. This was his customary method of discarding of new contraband. Id., par. 15. [*26] Although in his second affidavit dated February 5, 1988, Bluestein denies that he knew the contents of the envelope given to him by Revasz, the Mail Officer, he admitted in his first affidavit (submitted as Exhibit 4 to Plaintiff's Memorandum of April 8, 1986) that he knew that the envelope he received on November 14, 1983 from Revasz contained contraband mail sent to plaintiff. A reasonable inference from this evidence is that Bluestein was knowingly part of an intentional effort to send plaintiff's mail out of the prison before affording plaintiff the right to instruct Bluestein as to the manner of disposal. This was clearly in contravention of Bluestein's duties under the property regulations. It also, however, furthered the deprivation of plaintiff's due process rights with respect to his mail because once the mail was sent out of the prison, plaintiff's right to an effective appeal was destroyed. Bluestein's custom in discarding new contraband property prematurely might simply have been his own practice which in this case happened to facilitate the alleged violation already initiated by Revasz. Alternatively, however, it might have been part of a larger, institutionalized practice--alluded [*27] to above in the discussion of Ponte's conduct-- in which layers of intentional acts regularly worked together to deprive inmates of their due process rights. Thus, Bluestein's conduct would have been intentional and authorized. As there is evidence before the court from which a factfinder could properly so conclude, then plaintiff must be afforded the opportunity to have a trial of his Fourteenth Amendment due process claim against Bluestein. 7 Accordingly, summary judgment on this claim must be denied.


7 As decided previously, the trial must also address the First Amendment claim against Bluestein.


In view of the foregoing, defendants Ponte and Bluestein's motions for summary judgment are hereby DENIED. Any additional discovery shall be completed by April 21, 1990.