Duff v. Townsend et al (INMATE 2)

Filing 20

MEMORANDUM OPINION granting the 10 13 Motions for Summary Judgment; entering Judgment in favor of Defendants and against Plaintiff; taxing costs against Plaintiff for which execution may issue. Signed by Honorable Judge Charles S. Coody on 7/11/2011. (br, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
____________________________
ANTONIO RODREGIS DUFF,
#186 551
Plaintiff,
v.

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*
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OFFICER A. TOWNSEND, et al.,
Defendants.
____________________________

2:09-CV-878-CSC
(WO)

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MEMORANDUM OPINION
Plaintiff, an inmate proceeding pro se, brings this damages action under 42 U.S.C. §
1983. Plaintiff complains that Defendants Althea Townsend and Nurse Nettie Burks violated
his constitutional rights by confiscating documents necessary to a pending civil suit and
failed to return this legal material.
In accordance with the orders of the court, Defendants filed answers, special reports,
and supporting evidentiary material in response to the allegations contained in the complaint.
(Doc. Nos. 9, 10, 12, 13.) The court then informed Plaintiff that Defendants’ special reports
may, at any time, be treated as a motion for summary judgment, and the court explained to
Plaintiff the proper manner in which to respond to a motion for summary judgment. Plaintiff
filed a response to the special reports filed by Defendants. (Doc. No. 17.) This case is now
pending on Defendants’ motions for summary judgment. Upon consideration of the motions,
the evidentiary materials filed in support thereof, and Plaintiff’s opposition to these motions,

the court concludes that Defendants’ motions for summary judgment are due to be granted.
I. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute] as to any material fact and that the moving party is entitled to judgment as
a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir.
2007) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(a) (“The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”).1 The party moving
for summary judgment “always bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of the [record, including pleadings,
discovery materials and affidavits], which it believes demonstrate the absence of a genuine
issue [- now dispute -] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant may meet this burden by presenting evidence indicating there is no dispute of
material fact or by showing that the nonmoving party has failed to present evidence in
support of some element of its case on which it bears the ultimate burden of proof. Id. at
322-324.

1

Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and
deciding summary-judgment motions.” Fed.R.Civ.P. 56 Advisory Committee Notes. Under this revision,
“[s]ubdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c),
changing only one word – genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus
of a summary-judgment determination.“ Id. “‘Shall’ is also restored to express the direction to grant
summary judgment.” Id. Thus, although Rule 56 underwent stylistic changes, its substance remains the
same and, therefore, all cases citing the prior versions of the rule remain equally applicable to the current
rule.

Defendants have met their evidentiary burden and demonstrated the absence of any
genuine dispute of material fact. Thus, the burden shifts to Plaintiff to establish, with
appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324;
Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact by [citing to materials in the record
including affidavits, relevant documents or other materials] the court may ... grant summary
judgment if the motion and supporting materials -- including the facts considered undisputed
-- show that the movant is entitled to it.”) A genuine dispute of material fact exists when the
nonmoving party produces evidence that would allow a reasonable fact-finder to return a
verdict in its favor. Greenberg, 498 F.3d at 1263.
In civil actions filed by inmates, federal courts
must distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, our inferences must accord
deference to the views of prison authorities. Unless a prisoner can point to
sufficient evidence regarding such issues of judgment to allow him to prevail
on the merits, he cannot prevail at the summary judgment stage.
Beard v. Banks, 548 U.S. 521, 530, 126 S.Ct. 2572, 2578, 165 L.Ed.2d 697 (2006) (internal
citation omitted). Consequently, to survive Defendants’ properly supported motions for
summary judgment, Plaintiff is required to produce “sufficient [favorable] evidence” which
would be admissible at trial supporting his claims of constitutional violations. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Rule 56(e), Federal Rules of Civil Procedure.
“If the evidence [on which the nonmoving party relies] is merely colorable ... or is not

significantly probative ... summary judgment may be granted.” Id. at 249-250. “A mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must
be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson
v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).” Walker v.
Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990). Conclusory allegations based on
subjective beliefs are likewise insufficient to create a genuine issue of material fact and,
therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge
Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001); Holifield v. Reno, 115 F.3d
1555, 1564 n.6 (11th Cir. 1997) (plaintiff’s “conclusory assertions ..., in the absence of
[admissible] supporting evidence, are insufficient to withstand summary judgment.”); Harris
v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where
inmate produces nothing beyond “his own conclusory allegations” challenging actions of the
defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“mere verification of
party’s own conclusory allegations is not sufficient to oppose summary judgment....”).
Hence, when a plaintiff fails to set forth specific facts supported by requisite evidence
sufficient to establish the existence of an element essential to his case and on which the
plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in
favor of the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.”); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987)
(If on any part of the prima facie case the plaintiff presents insufficient evidence to require

submission of the case to the trier of fact, granting of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami,
Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the
Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) (“Only
factual disputes that are material under the substantive law governing the case will preclude
entry of summary judgment.”). “The mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue affecting the outcome
of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
(citation omitted). To demonstrate a genuine dispute of material fact, the party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts.... Where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the
evidence before the court which is admissible on its face or which can be reduced to
admissible form indicates that there is no genuine dispute of material fact and that the party
moving for summary judgment is entitled to it as a matter of law, summary judgment is
proper. Celotex, 477 U.S. at 323-324 (Summary judgment is appropriate where pleadings,
evidentiary materials and affidavits before the court show there is no genuine dispute as to
a requisite material fact); Waddell, 276 F.3d at 1279 (To establish a genuine dispute of

material fact, the nonmoving party must produce evidence such that a reasonable trier of fact
could return a verdict in his favor).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a
pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906
F.2d 667, 670 (11th Cir. 1990). Thus, Plaintiff’s pro se status alone does not mandate this
court’s disregard of elementary principles of production and proof in a civil case. In this
case, Plaintiff fails to demonstrate a requisite genuine dispute of material fact in order to
preclude summary judgment. Matsushita, 475 U.S. at 587.
II. DISCUSSION
Plaintiff alleges that on September 10, 2009 Defendant Townsend confiscated legal
material relevant to a civil suit he was litigating. Defendant Townsend took the material
from Plaintiff when he refused to explain to her the relevance of the documents. The legal
material was subsequently turned over to Nurse Burks. Even though Plaintiff did inform
Defendant Burks of the nature of the documents taken by Defendant Townsend, he
complains that neither Defendant returned his legal material to him. Plaintiff claims that
Defendants’ conduct violated his due process rights. The court further understands Plaintiff
to complain that Defendants’ actions unconstitutionally denied him access to the courts.
(Doc. No. 1.)

A. Access to Courts
Defendant Townsend observed Plaintiff carrying what appeared to her to be blank
body charts. She confiscated the body charts and determined that they were not blank but
were body charts of other inmates. The officer directed Plaintiff to provide anything that
demonstrated he had the right to possess the body charts. Plaintiff failed to do so and
Defendant Townsend gave the body charts to Nurse Burks who found the documents
illegible. Plaintiff subsequently asked Defendant Burks to return the body charts to him.
Because the body charts had been taken from Plaintiff by a correctional officer Nurse Burks
was not in a position to return the material to Plaintiff. Nurse Burks, however, returned the
documents to Defendant Townsend. Defendant Townsend states that she then returned the
documents to Plaintiff. (Doc No. 10, Burks Affidavit, Doc. No. 13, Exh. A.)
The law is well settled that prison inmates are entitled to “a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts.”
Bounds v. Smith, 430 U.S. 817, 825 (1977). In Lewis v. Casey, 518 U.S. 343 (1996), the
Supreme Court clarified and limited the right to assistance created in Bounds. Specifically,
the Court mandated that “an inmate alleging a violation of Bounds must show actual injury”
arising directly from the alleged inadequacies in the law library, legal assistance program or
correctional policy. Lewis, 518 U.S. at 349. In identifying the specific right protected by
Bounds, the Court explained that “Bounds established no ... right [to a law library or to legal
assistance]. The right that Bounds acknowledged was the (already well-established) right of
access to the courts . . . [P]rison law libraries and legal assistance programs are not ends in

themselves, but only the means for ensuring ‘a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the courts.’ ” Id. at 350-351
(emphasis in original) (citations omitted). The Court further determined Bounds did not
require “that the State . . . enable the prisoner to discover grievances, and to litigate
effectively once in court . . . To demand the conferral of such sophisticated legal capabilities
upon a mostly uneducated and indeed largely illiterate prison population is [not something]
. . . the Constitution requires.” Id. at 354 (emphasis in original).
The Court likewise rejected the argument that the mere claim of a systemic defect,
without a showing of actual injury, presented a claim sufficient to confer standing. Lewis,
518 U.S. at 349. Moreover, Lewis emphasizes that a Bounds violation is related to the lack
of an inmate’s capability to present claims. Id. at 356. “Bounds, which as we have said
guarantees no particular methodology but rather the conferral of a capability -- the capability
of bringing contemplated challenges to sentences or conditions of confinement before the
courts. When any inmate . . . shows that an actionable claim of this nature which he desired
to bring has been lost or rejected, or that the presentation of such a claim is currently being
prevented, because this capability of filing suit has not been provided, he demonstrates” the
requisite actual injury. Id.

Finally, the Court discerned that the injury requirement is

satisfied only when an inmate has been denied “a reasonably adequate opportunity to file
nonfrivolous legal claims challenging [his] convictions or conditions of confinement . . . [I]t
is that capability, rather than the capability of turning pages in a law library, that is the
touchstone.” Id. at 356-357. “[T]he Constitution does not require that prisoners . . . be able

to conduct generalized research, but only that they be able to present their grievances to the
courts - a more limited capability that can be produced by a much more limited degree of
legal assistance.” Id. at 360. The Court admonished that federal courts should allow prison
officials to determine the best method of ensuring that inmates are provided a reasonably
adequate opportunity to present their nonfrivolous claims of constitutional violations to the
courts. Id. at 356. A federal district court must “‘scrupulously respect[] the limits on [its]
role,’ by ‘not . . . thrust[ing] itself into prison administration’ and instead permitting ‘[p]rison
administrators [to] exercis[e] wide discretion within the bounds of constitutional
requirements.’ [Bounds, 430] U.S. at 832-833, 97 S.Ct. at 1500.” Id. at 363.
An inmate’s allegation that prison officials confiscated and/or destroyed legal
materials states a cognizable cause of action for violation of the right of access to the courts.
See Bass v. Singletary, 143 F.2d 1442, 1445-46 (11th Cir. 1998). A violation of the First
Amendment right of access to the courts, however, is only established where a litigant shows
that he was actually injured by the alleged denial of access. As noted, the actual injury
requirement is a constitutional prerequisite to suit. Lewis, 518 U.S. at 351.
Plaintiff disputes that Defendant Townsend returned his legal material to him and
argues that because Defendant Burks had the legal documents in her possession at the time
he asked her to give them back to him, her failure to do so violated his constitutional rights.
(Doc. No. 17.)

Plaintiff has not, however, presented evidence, or even alleged, that

Defendants’ actions caused him the type of actual injury contemplated in Lewis, supra, so
as to establish a constitutional violation as a result of their confiscation of his legal material.

Bass, 143 F.2d at 1446. He has utterly and completely failed to come forward with any
probative evidence that the seizure of his legal property deprived him of the capability of
pursing non-frivolous legal claims before federal or state courts. Lewis, 518 U.S. at 352-57.
Plaintiff, therefore, has failed to establish the requisite injury. Id. Accordingly, Defendants
are entitled to summary judgment on Plaintiff’s access to courts claim. Chandler v. Baird,
926 F.2d 1057 (11th Cir. 1991).
B. Due Process
Plaintiff complain that Defendants’ allegedly improper confiscation of his property
violated his right to due process. Insofar as Plaintiff’s complaint about the allegedly improper
confiscation of his legal material is concerned, the court finds that he is not entitled to relief.
"If the [Plaintiff’s legal property] was not returned because of
[Defendants’] negligence, there has been no unconstitutional
deprivation of property. See Daniels v. Williams, 474 U.S. 327,
106 S.Ct. 662, 88 L.Ed.2d 662 (negligent loss of property does
not rise to the level of a constitutional violation.) If
[Defendants] intentionally refused to return the [property],
plaintiff has not alleged a constitutional violation. In Hudson v.
Palmer the Court ruled that an 'unauthorized intentional
deprivation of property by a state employee does not constitute
a violation of the Due Process Clause . . . if a meaningful postdeprivation remedy for the loss is available.' 104 S.Ct. at 3202,
82 L.Ed.2d at 407. It is essential to [the instant] complaint that
it allege that [Defendants] acted without authorization. If
[Defendants] w[ere] acting pursuant to authorization, [their]
actions would be within the outer perimeter of [their] duties and
would not have violated any clearly established constitutional
right and therefore [they] would be immune from suit. See
Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 169192, 40 L.Ed.2d 90 (1974); Flinn v. Gordon, 775 F.2d 1551, 1553
(11th Cir.1985). Only if the complaint is construed as alleging
that [Defendants] w[ere] acting in bad faith outside the scope of
[their] duties can it evade the doctrine of official immunity.

Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11th Cir. 1986). See also Holloway v.
Walker, 790 F.2d 1170, 1173-74 (5th Cir. 1986) (finding no breach of federally guaranteed
constitutional rights, even where a high level state employee intentionally engages in tortuous
conduct, as long as the state system as a whole provides due process of law); Myers v.
Klevenhagen, 97 F.3d 91, 94-95 (5th Cir. 1996) (“the Parratt [v. Taylor, 451 U.S. 527
(1981)]/Hudson [v. Palmer, 468 U.S. 517 (1984)] doctrine protects the state from liability
for failing to provide a pre-deprivation process in situations where it cannot anticipate the
random and unauthorized actions of its officers.” The complainant bears the burden of
establishing that the state's post-deprivation remedy is inadequate).
The State of Alabama, through its Board of Adjustment, provides a meaningful postdeprivation remedy for Plaintiff to seek redress for the loss of his property. Ala. Code § 419-60 et seq. (1982). In light of this adequate state remedy, Plaintiff's allegation that
Defendants violated his due process rights by improperly confiscating and retaining his
personal legal property, whether such was the result of negligence or an intentional act, fails
to state a claim upon which relief can be granted. Defendants are, therefore, entitled to
summary judgment on Plaintiff’s due process claim.
C. 28 U.S.C. § 1915(g)
Defendants make the alternative argument that Plaintiff’s complaint is subject to
dismissal under the provisions of 28 U.S.C. § 1915(g). They contend that under the
provisions of 28 U.S.C. § 1915 a prisoner may only file three meritless suits while
proceeding in forma pauperis after which the inmate must pay the full filing fee at the time

he initiates any further lawsuits.

Defendants reference three cases previously filed by

Plaintiff which they appear to argue qualify as “strikes” for purposes of 28 U.S.C. §
1915(g).2 (Doc. Nos. 10, 13.)
Pursuant to the directives of 28 U.S.C. § 1915(g), a prisoner is not allowed to bring
a civil action or proceed on appeal in forma pauperis if he "has, on 3 or more occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury." Not all unsuccessful cases filed by prisoners qualify as strikes under
28 U.S.C. § 1915(g). Upon careful review of Plaintiff’s previous cases identified by
Defendants which they claim disqualify him from proceeding in forma pauperis in not only
this case but any future cases, the court finds that those cases do not qualify as strikes for
purposes of applying the bar of § 1915(g). See e.g., Morefield v. Brewton, 2008 WL 5209984
at *2 (S.D. Ga. Dec. 11, 2008) (not reported in F. Supp.2d) (denying a motion to dismiss
based on three strikes, distinguishing Allen v. Clark, 266 Fed.Appx. 815 (11th Cir. 2008), and
finding the dismissal of an appeal for want of prosecution due to failure to pay a filing fee
did not constitute a strike). The court, therefore, declines the alternative argument to dismiss
the instant complaint under 28 U.S.C. § 1915(g).

2

The cases identified by Defendants which they claim qualify as “strikes” under 28 U.S.C. §
1915(g) include Duff v. Prison Health Services, Inc., 2:05-CV-627-MEF (M.D. Ala. 2007), Duff v.
Prison Health Services, Inc., 2:05-CV-2048-LSC (N.D. Ala. 2005), and Duff v. Jones, et al., 2:06CV451-RDP (N.D. Ala.2006). Defendants cite a fourth case but note that at the time of filing their
dispositive motion said case was still pending. Available at https://pcl.uscourts.gov.

III. CONCLUSION
In light of the foregoing, it is ORDERED that:
1. Defendants’ motions for summary judgment (Doc. Nos. 10, 13) are GRANTED;
2. Judgment is ENTERED in favor of Defendants and against Plaintiff; and
3. Costs are TAXED against Plaintiff for which execution may issue.
A separate Order follows
Done this 11th day of July, 2011.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE