United States District Court, W.D. Wisconsin
REO L. COVINGTON, Plaintiff,
SERGEANT STEINERT and MARIE SVEC, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
Pro se plaintiff Reo Covington is proceeding on claims that prison staff at Waupun Correctional Institution violated his First Amendment rights when: (1) Sergeant Steinert, a correctional officer, and Marie Svec, a social worker, opened, read and confiscated a letter from his mother; and (2) Svec recommended that Covington stay in a maximum security prison in retaliation for grievances he filed against her. Now before the court is defendants’ motion for summary judgment on both claims (dkt. #25), as well as defendants’ motion for leave to make an exhaustion argument (dkt. #36), and plaintiff’s motion for assistance in recruiting counsel (dkt. #70). For the reasons explained below, both of defendants’ motions will be granted and judgment will be entered for defendants. Because plaintiff’s claims will be dismissed on the merits, his motion for assistance in recruiting counsel will be denied.
I. Mail Incident.
On September 25, 2012, Covington was housed in the behavioral health unit at WCI, which is designated for inmates with known mental health issues. Defendant Steinert worked in the unit as a relief sergeant and defendant Svec worked as a social worker. According to Covington, early in the day on September 25, he asked Steinert and Svec for a stamped envelope. They denied his request, stating that because he was not indigent he was not entitled to free postage.
Later that day, Covington received two pieces of mail: an order from Dane County Circuit Court and a letter from his mother. Pursuant to DAI Policy #309.04.01, the letter from his mother had been opened and visually inspected for contraband in the mailroom before being delivered to Covington. The officer making the delivery, however, did not know the contents of the letter.
The parties dispute what happened next, though ultimately, these disputes are immaterial for purposes of summary judgment. According to defendants, Covington refused to look at the envelope or even get up from his seat. He told Steinert that he did not want the letter and wanted it returned to sender. Because Covington would not accept the letter, Steinert kept the letter and continued mail delivery to the other inmates. Later, according to Steinert, he decided to review the letter out of concern as to Covington’s reasons for wanting a letter from his mother.
Covington’s version of events is slightly different. Covington states that he actually accepted the envelope from his mother, but apparently without opening and reading it, wrote “return to sender” on it and placed it in the cell bars for outgoing mail pick-up. As explained in his declaration, Covington did this because he had previously established a coded distress signal with his mother. If she received an envelope from him marked “return to sender, ” she would call the institution to check on his safety and, if not satisfied, she would come to see him as soon as possible, preferably in the next 24 hours. Although Covington and his mother had apparently never attempted to use this coded distress signal in the past, Covington chose this instance to do so because he wanted help with funds to respond to the order from the Dane County Circuit Court.
Covington states further that Steinert picked up the letter and asked whether it was going out, to which Covington replied, “yes, please put it in the mailbox.” According to Covington, Steinert later told him that he had reviewed the contents of the letter out of concern that Covington might be attempting to avoid paying for postage by sending a letter out in the same envelope with the writing “return to sender” on it. Regardless, inmates cannot return mail by using a “return to sender” designation under DOC policy.
There are several reasons for this policy. First, DOC wants to ensure that inmates are not attempting to send contraband or improperly contact someone by using “return to sender.” Second, DOC does want to ensure that inmates are not attempting to avoid purchasing postage by sending out correspondence with “return to sender.” Third, United States Postal Service policy states that once a piece of mail has been opened, it cannot be “returned to sender” without affixing new postage to the envelope.
At some point after Covington either refused the letter or attempted to send it back to his mother, there is no dispute that Steinert read the letter and learned that there had been a death in Covington’s family. Because of Covington’s status on the behavioral health unit at the time and the contents of the letter, Steinert reported the information and delivered the letter to defendant Marie Svec, Covington’s social worker, who also reviewed the letter and was concerned for Covington.
Svec then contacted Covington and tried to discuss the letter with him. The parties again dispute what specifically happened during the meeting between Svec and Covington. According to defendants, Covington refused to discuss the letter with Svec and said he did not care about his family because he thought they did not care about him. Covington also refused to take the letter from Svec and said he wanted to “return it to sender.” Svec told him that he could not refuse the letter by “return to sender.” She offered to dispose of the letter by shredding it, which she did. Svec also told Covington that if he changed his mind and wanted to talk about the matter later, she would be available. (Defs.’ PFOF ¶¶ 38, 40.)
Under Covington’s version of events, when he arrived in Svec’s office, she told him that one of his cousins had died. When he asked how she knew that and why he had not been notified, she showed him the letter from his mother. Covington then asked why she had the letter and asked for it back. Svec responded that Steinert had given her the letter out of concern. Svec then told him to calm down and asked him if he wanted to talk about his cousin’s death and refused to give him the letter. Refusing to talk about the letter or his cousin, Covington went back to his cell.
Again, according to Covington, it was not until a couple of days later that Svec told him that she had shredded the letter. (Pl.’s Decl. ¶¶ 10-12.) Covington also denies giving Svec permission to do so. (Id. ¶¶ 14-17).
On October 19, 2012, Covington filed a grievance complaining that Steinert and Svec had opened and read his mail. The behavioral health program supervisor at the time, Paul Ludvigson, was contacted by the institution complaint examiner to assist in responding to the grievance. Ludvigson concluded that Steinert and Svec had reviewed ...