                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 15a0296n.06

                                        No. 14-1974

                                                                                 FILED
                              UNITED STATES COURT OF APPEALS                 Apr 23, 2015
                                   FOR THE SIXTH CIRCUIT                DEBORAH S. HUNT, Clerk

AMIRA SALEM,                                          )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )      ON APPEAL FROM THE
                                                      )      UNITED STATES DISTRICT
MILLICENT WARREN; CINDY GREENLEAF;                    )      COURT FOR THE EASTERN
DEAN BATKINS; SANDY SAMUELS; MARY                     )      DISTRICT OF MICHIGAN
RANDALL; JOANNE COLTER; MIKE                          )
ANDREWS, all in their individual and official         )
capacities,                                           )
                                                      )      OPINION
       Defendants-Appellees.                          )




       BEFORE:         DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Amira Salem, a state prisoner, sued several

prison staff, including the warden, for allegedly opening or delaying her mail in violation of

Michigan Department of Corrections policy and her constitutional rights. The district court

dismissed her claims upon a motion for summary judgment. We agree with the district court that

Salem has not produced evidence supporting the individual liability of the defendants, and we

therefore affirm.

                                              I.

       Since 2005, Salem has been serving time at the Women’s Huron Valley Correctional

Facility (“WHV”) in Ypsilanti, Michigan. Normally, when an inmate receives mail at WHV, the
No. 14-1974
Amira Salem v. Millicent Warren, et al.
mailroom staff feed the letter through an automatic opening machine and check the contents for

contraband. The letter is then passed on to the inmate. But throughout Salem’s time in WHV a

Department of Corrections policy directive allowed inmates to request “special handling” of their

incoming legal mail, which she did in August of 2005. The record does not make clear what

“special handling” fully entailed from 2005 onwards, but both parties agree that it included an

inmate’s right to be present when prison staff opened legal correspondence.1

         On May 13, 2010, Salem filed suit in federal district court under 42 U.S.C. § 1983,

alleging that WHV staff violated her rights under the First and Fourteenth Amendments. In her

first count, Salem claimed that prison employees improperly opened her legal mail when she was

not present, despite her written request for special handling, and she recited particular incidents

of opened letters dating back to 2007. In her second count, she alleged that WHV staff denied

her access to court by delaying receipt of her legal mail, again citing several putative violations

beginning in at least 2008.            As to both counts, Salem sought injunctive, declaratory, and

monetary relief against two groups of defendants in both their official and individual capacities.

The first group, which we refer to as the “supervisory defendants,” included the warden,

Millicent Warren, a former mailroom supervisor, Cindy Greenleaf, and the then-supervisor of the

mailroom, Dean Batkins. The second group, the “staff defendants,” included Sandy Samuels,

Mary Randall, Joanne Colter, and Mike Andrews, all of whom worked in the WHV mailroom.




         1
            The record does not contain a copy of the policy directive as it existed from 2005 to 2009, but the record
does include an updated policy directive that took effect on September 14, 2009. That version reads: “Incoming
legal mail for a prisoner who has requested special handling of legal mail . . . shall be opened and inspected for . . .
contraband in the prisoner’s presence. The content of the mail shall not be read or skimmed.” A separate section of
the same version defines “legal mail” as “[o]nly mail from an attorney or law firm, a legitimate legal service
organization, a non-prisoner paralegal working on behalf of an attorney, law firm, or legal service organization, the
Department of Attorney General, a prosecuting attorney’s office, a court, a clerk of the court, or a Friend of the
Court. . . .” To receive special handling, an approved sender must be “clearly identified on the face of the
envelope . . . . It is not sufficient for the envelope to be simply marked ‘legal mail.’”

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Amira Salem v. Millicent Warren, et al.
       The defendants answered collectively, and discovery proceeded for two years under the

direction of a magistrate judge, after which Salem moved for summary judgment on liability The

magistrate recommended denying her motion, and the district court adopted that

recommendation after Salem failed to object. The court then set a trial date of February 4, 2014.

But at the end of January of that year the parties agreed to delay trial, apparently at the court’s

urging. Immediately thereafter the defendants moved for leave to file a motion for summary

judgment, and, after Salem did not respond, the district court granted that motion.            The

defendants then moved for summary judgment on both the opened mail and delayed mail claims.

       The district court ruled for the defendants on all issues and dismissed the case. It first

disposed of all official capacity claims as barred by sovereign immunity. As to both individual

capacity claims against the supervisor defendants, the district court found no evidence suggesting

anything beyond vicarious liability. As to the mail-opening claim against the staff defendants,

the district court found no evidence that the four employees named as defendants were in any

way responsible for opening her mail. And as to the delayed-mail claim against the staff

defendants, the court found nothing in the record to support Salem’s claim that the delays

prejudiced any litigation in which she was involved.

       Salem timely appealed.      Before this court, she contests only the grant of summary

judgment to the defendants and only as to the claims for damages against the defendants in their

individual capacities.

                                                II.

       We review the grant of summary judgment de novo. Sutherland v. DCC Litig. Facility,

Inc. (In re Dow Corning Corp.), 778 F.3d 545, 548 (6th Cir. 2015). We will affirm only if the

record shows no genuine dispute over any material fact and that the non-moving party is entitled



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Amira Salem v. Millicent Warren, et al.
to judgment as a matter of law. Fed. R. Civ. P. 56(a). We must grant Salem all favorable

inferences reasonably supported by the record. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587–88 (1986). But, once the defendants moved for summary judgment, it

became her burden to produce evidence on each essential element of her claims. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322–23, 325 (1986). And she must produce enough evidence to

allow a reasonable jury to find in her favor by a preponderance of the evidence. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

                                                 III.

       The Supreme Court has long blessed the practice of opening an inmate’s legal mail, in

her presence, so that prison officials may ensure the letter does not contain contraband. Wolff v.

McDonnell, 418 U.S. 539, 576–77 (1974). But we have repeatedly required that prison officials

carry out these policies in a “uniform and evenly applied”—and not “arbitrary or capricious”—

manner. Lavado v. Keohane, 992 F.2d 601, 607, 609–10 (6th Cir. 1993). Even opening a

handful of privileged letters, we have said, violates an inmate’s clearly established constitutional

right under the First Amendment. Merriweather v. Zamora, 569 F.3d 307, 317 (6th Cir. 2009)

(citing Sallier v. Brooks, 343 F.3d 868, 879–80 (6th Cir. 2003); Lavado, 992 F.2d at 609). And

we have also suggested that hindering the timely sending and receiving of an inmate’s legal mail

may also violate her right of access to courts under the Fourteenth Amendment, though we have

had fewer opportunities to sketch the full contours of that right. See Boswell v. Mayer, 169 F.3d

384, 387–88 (6th Cir. 1999) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)).

                                                 A.

       We turn first to the staff defendants. Viewing the record most favorably to Salem, there

is evidence that her mail was repeatedly opened in a manner that might be deemed arbitrary or



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No. 14-1974
Amira Salem v. Millicent Warren, et al.
capricious. But in this appeal Salem has preserved only her individual liability claims, and we

must affirm dismissal of those claims for the staff defendants because Salem has not produced

any evidence suggesting who should be held liable.

       Though Salem extensively recounted at her deposition each piece of legal mail that she

received already opened, she also repeatedly admitted that she did not—and could not—know

which mailroom staff, if any, opened the letters. This is not a case where each of the defendants

admits to opening a privileged letter, see, e.g., Al-Amin v. Smith, 511 F.3d 1317, 1320–22, 1322

n.7 (11th Cir. 2008), nor does Salem attempt to point us to any other evidence of the defendants’

personal involvement. The record establishes at most that each of the staff defendants worked in

the WHV mailroom. But it also establishes that the named staff defendants were not the only

employees who worked there, so a reasonable jury could not conclude, by a preponderance of the

evidence, that any one of these defendants violated Salem’s rights. Cf. Terrance v. Northville

Reg’l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002) (noting that a plaintiff must show

“what each defendant did to violate the asserted right”). A mailroom employee, by virtue of her

position alone, does not become the insurer of an inmate’s constitutional rights. Summary

judgment on her mail-opening claim was therefore proper. For the same reasons, Salem’s

delayed mail claim against the staff defendants also fails.

       Instead of attempting to meet her burden of production, Salem claims, as she did before

the district court, that the defendants bore the burden of producing evidence to show their

innocence. She relies on our opinion in Merriweather to support this argument, but her reading

of that case overlooks a crucial difference in procedural posture. It is true that in Merriweather

we denied qualified immunity, on a similar claim, to one mailroom employee who did not

produce an affidavit supporting his innocence. See 569 F.3d at 318–19. But that case came to us



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Amira Salem v. Millicent Warren, et al.
as an interlocutory appeal after the denial of qualified immunity to those defendants. Id. at 312.

As such, we were constrained by our jurisdictional limits not to question the district court’s

determination of the remaining factual disputes. See Austin v. Redford Twp. Police Dep’t, 690

F.3d 490, 495 (6th Cir. 2012) (“A defendant raising a qualified immunity defense may not appeal

a district court’s summary judgment order insofar as that order determines whether or not the

pretrial record sets forth a ‘genuine’ issue of fact for trial.”) (internal quotation marks omitted).

“In that situation, the district court’s determination that the summary judgment record raises a

genuine issue of fact concerning the officials’ involvement is not an immediately appealable

final decision and this Court lacks jurisdiction.” Thompson v. Grida, 656 F.3d 365, 367 (6th Cir.

2011). But, in the procedural posture of Salem’s appeal, “[t]he court’s duty to view the facts in

the light most favorable to the nonmovant does not require or permit the court to accept mere

allegations that are not supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d

901, 906 (6th Cir. 2009).

                                                 B.

       Next we consider Salem’s claims against the supervisor defendants. Here too we affirm

summary judgment. The Supreme Court has made it clear that a § 1983 plaintiff may not rely on

vicarious liability to recover against a supervisor; instead, “each Government official, his or her

title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S.

662, 677 (2009). As a result, Salem must produce some evidence that the supervisor defendants

“either encouraged the specific incident[s] of misconduct or in some other way directly

participated in [them].” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal quotation

marks omitted).




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No. 14-1974
Amira Salem v. Millicent Warren, et al.
       Salem has not met her burden. Her brief asserts that the supervisor defendants had notice

of her opened or delayed mail through an internal prison grievance process, but she does not

direct our attention to parts of the record that substantiate this claim. See Citizens Awareness

Network, Inc. v. Nuclear Regulatory Comm’n, 59 F.3d 284, 293–94 (1st Cir. 1995) (“It is not

sufficient for a party to mention a possible argument in the most skeletal way, leaving the court

to . . . put flesh on its bones.”) (internal quotation marks omitted). And to the extent that her

brief describes the actions of the supervisors, or at least the warden, those actions appear to have

been meant to remedy any violations.

       Salem does point to other parts of the record that she claims support the personal liability

of the supervisor defendants, but these are unavailing. The first citation is to the defendants’

response to a request for admission, in which they denied the statement that “legal mail requires

special handling pursuant to [Department of Corrections] policy.” The second citation is to the

defendants’ response to an interrogatory, in which they state that “[a]ll legal mail is handled in

accordance with policy.” There is, admittedly, some tension between these responses, and the

first seems to be wrong given what we know of the special handling policy. But these responses

simply do not suggest that the supervisor defendants knowingly encouraged or participated in the

opening or delay of Salem’s legal mail at the times alleged in the complaint. The supervisor

defendants, like the staff defendants, therefore deserve summary judgment as well.

                                                IV.

       We affirm the judgment of the district court.




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