Jones v. Holladay et al

Filing 26

RECOMMENDED DISPOSITION recommending that 14 Defendants' motion for summary judgment be granted and that Plaintiff's claims be dismissed without prejudice; and recommending that 22 Plaintiff's motion to amend be denied as moot. Objections to R&R due no later than 14 days from the date of this Recommendation. Signed by Magistrate Judge Beth Deere on 3/5/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION D A V I D LEE JONES A D C # 94099 V. D O C HOLLADAY, et al. C A S E NO. 4:09CV00876 JLH/BD DEFENDANTS P L A IN T IF F

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following recommended disposition has been sent to United States District C o u rt Chief Judge J. Leon Holmes. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date of this Recommendation. A copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to a p p e a l questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

B ackground: P la in tif f , an inmate at the Varner Unit of the Arkansas Department of Correction,

f ile d this action pro se under 42 U.S.C. § 1983. (Docket entry #2) In his Complaint, P la in tif f alleges that while he was detained at the Pulaski County Regional Detention F a c ility ("PCRDF"), certain photographs were confiscated from his mail and destroyed w ith o u t his prior knowledge or consent. Plaintiff claims that his due process and first a m e n d m e n t rights were violated as a results of the Defendants' conduct. Defendants now h a v e filed a motion for summary judgment.1 (#14) In the motion, the Defendants argue that: (1) Plaintiff has an adequate postd e p riv a tio n remedy in state court; (2) Plaintiff does not have a constitutionally protected in te re s t in the possession of the photographs because they were contraband; (3) the P C R D F photograph policy at issue is reasonably related to valid penological interests; and (4 ) the Defendants are entitled to qualified immunity. Plaintiff has responded to the Defendants' motion (#23 and #25) and has filed a m o tio n to amend his Complaint.2 (#22) Based upon the evidence presented, the Court
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Defendants originally filed this motion as a motion to dismiss or, in the a lte rn a tiv e , a motion for summary judgment. (#14) Defendants, however, attached the a f f id a v it of Randy Morgan to their statement of undisputed facts. Accordingly, because th e Defendants asked the Court to consider evidence outside the pleadings, the Court n o tif ie d the parties that it would consider the motion as one for summary judgment. (#17) In his responses to the motion for summary judgment, Plaintiff argues that the p h o to g ra p h policy at issue was never written and that it is a "word of mouth" policy. Although the Defendants contend that the new policy was made part of the new Inmate H a n d b o o k , they do not argue that the memorandum containing the new policy was 2
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recommends that the Defendants' motion for summary judgment (#14) be GRANTED a n d that Plaintiff's claims be DISMISSED with prejudice.3 In addition, the Court re c o m m e n d s that Plaintiff's motion to amend (#22) his Complaint be DENIED as moot. III. D is c u s s io n : A. S ta n d a rd

S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. L ib e r ty Lobby, Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully c a rrie d its burden under Rule 56(c), the nonmoving party has an affirmative burden to go

d is trib u te d to every inmate. Defendant Morgan explains that the new photograph policy w a s read out loud to all inmates on April 28, 2009. (#16-2 at p.3) Accordingly, this d is p u te does not create a dispute of material fact. Plaintiff also argues that the new policy has been enforced in a discriminatory m a n n e r. To the extent that Plaintiff claims that Defendants have violated the Equal P ro te c tio n Clause of the United States Constitution, this claim fails. An inmate bringing a n equal protection claim must show intentional or purposeful discrimination. Klinger v. D e p t. of Corr., 31 F.3d 727, 733 (8th Cir. 1994). "The heart of an equal protection claim is that similarly situated classes of inmates are treated differently, and that this difference in treatment bears no rational relation to any legitimate penal interest." Weiler v. Purkett, 1 3 7 F.3d 1047, 1051 (8th Cir. 1998) (citing Timm v. Gunter, 917 F.3d 1093, 1103 (8th C ir. 1990)). An equal protection analysis begins with whether the inmate has shown that h e has been treated differently from others who are similarly situated. Rouse v. Benson, 1 9 3 F.3d 936, 942 (8th Cir. 1999). Here, Plaintiff failed to provide any facts to support s u c h a claim. Because Plaintiff has failed to state either a due process or first amendment c la im , the Court will not address the Defendants' qualified immunity argument in this R e c o m m e n d a tio n . 3
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beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific f a c ts showing that there is a genuine issue for trial." FED. R. CIV. P . 56(e); Mosley v. City o f Northwoods, 415 F.3d 908, 910-11 (8th Cir. 2005) (internal citation omitted) ("The n o n m o v in g party may not rest on mere allegations or denials, but must demonstrate on the re c o rd the existence of specific facts which create a genuine issue for trial.") If the o p p o sin g party fails to carry that burden or fails to establish the existence of an essential e le m e n t of its case on which that party will bear the burden of proof at trial, summary ju d g m e n t should be granted. See Celotex, 477 U.S. at 322. "Although it is to be c o n s tru e d liberally, a pro se complaint must contain specific facts supporting its c o n c lu s io n s ." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). B. D u e Process

H e re , it is undisputed that in April 2009, the PCRDF implemented a new p h o to g ra p h policy. Under the new policy, inmates were no longer be permitted to receive p h o to g ra p h s in the mail. All inmates were notified of this policy and were advised to n o tif y their family and friends that any photographs sent to inmates would be considered c o n tra b a n d and would be confiscated and destroyed. In his Complaint, Plaintiff claims that in June 2009, while he was detained at the P C R D F , his mother sent him a letter containing several photographs of his father and his n ie c e s . Plaintiff claims that these photographs were destroyed without his prior k n o w le d g e or consent, and that, as a result, his due process rights were violated.

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A prisoner's claim regarding the loss of personal property does not state a c o n s titu tio n a l claim for relief. In Hudson v. Palmer, 468 U.S. 517, 536, 104 S.Ct. 3194 (1 9 8 4 ), the United States Supreme Court held that when a state actor deprives an in d iv id u a l of personal property, there is no relief available under § 1983 if state law p ro v id e s adequate post-deprivation remedies. In Butler v. Smith, 208 F.3d 217 (8th Cir. 2 0 0 0 ) (unpublished table decision), the Eighth Circuit Court of Appeals determined that a c o u n ty prisoner who alleged he was wrongly charged for meals while housed at a county ja il had an adequate post-deprivation remedy in state court and, thus, could not seek relief u n d e r § 1983. Specifically, the Eighth Circuit noted that one available remedy was a c o m m o n -la w conversion action for the wrongful possession or disposition of another's p ro p e rty. Butler, 208 F.3d at *1 (citing McQuillan v. Mercedes-Benz Credit Corp., 331 A rk . 242, 961 S.W.2d 729, 732 (1998)). See also McDowell v. Jones, 990 F.2d 433, 434 (8 th Cir. 1993) (holding that a Missouri prisoner could not raise a § 1983 claim based u p o n the seizure and destruction of his property because the prisoner "could have pursued a state deprivation remedy for the conversion of his property.") For the same reasons, P la in tif f 's claim fails. H e re , as in Butler, Plaintiff has an adequate post-deprivation remedy available in s ta te court. Although in his responses to the motion Plaintiff claims that he is indigent a n d , therefore, unable to afford to bring a claim for conversion in state court, his financial

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status does not render this post-deprivation remedy inadequate.4 Plaintiff may attempt to p ro c e e d in forma pauperis in state court or bring an action in small claims court in order to reduce the cost of bringing another lawsuit. Further, in their motion, the Defendants also argue that Plaintiff's claim fails b e c a u s e the confiscation of his photographs did not implicate due process. The D e f e n d a n ts contend that, because the photographs were confiscated as contraband, P la in tif f did not have a constitutionally protected interested in them. The Eighth Circuit Court of Appeals has held that, although prisoners retain p ro te c tio n s against the deprivation of property without due process of law, the protection is "subject to reasonable limitation or retraction in light of the legitimate security c o n c e rn s of the institution." See Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (in te rn a l quotations omitted). Accordingly, the confiscation and destruction of c o n tra b a n d does not implicate the due process clause of the United States Constitution. See Johnson v. Harmon, 2005 WL 1772752 (E.D. Ark. 2005) (unpublished opinion) (h o ld in g that because money seized in inmate plaintiff's cell was contraband, he had no p ro te c te d property right or interest in it).

In his second response to the motion for summary judgment, Plaintiff argues that " n o circuit court will hear the State of Arkansas as a Defendant." (#25 at p.3) A c o n v e rs io n action, however, would be brought against those responsible for taking P la in tif f 's personal property, not against the State of Arkansas. 6

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Here, following the implementation of the new policy at the PCRDF, all p h o to g ra p h s were considered contraband. Based upon Defendant Morgan's affidavit, all in m a te s were notified of the new photograph policy and were provided time to notify th e ir families and friends of the change. (#16-2 at p.3) Although Plaintiff claims that the p o lic y was never written, he does not state that he was unaware of the new policy or that h e was unaware that photographs were going to be considered contraband under the new p o lic y. Thus, Plaintiff has not established a constitutional interest in the property, and his c la im fails as a matter of law. C. F irs t Amendment

R e a d in g his Complaint liberally, Plaintiff also claims that his first amendment rig h ts were violated when Defendants confiscated and destroyed the photographs. It is u n d is p u te d that inmates have a constitutional right to receive mail. Weiler v. Purkett, 137 F .3 d 1047, 1050 (8th Cir. 1998). Accordingly, when a prison regulation infringes on that rig h t, the regulation must be reasonably related to legitimate penological interests to be v a lid . Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254 (1987). In determining whether a particular restriction is valid, courts should consider: (1) whether there is a rational connection between the prison policy or regulation and a " le g itim a te governmental interest"; (2) whether "there are alternative means of exercising th e right" notwithstanding the policy or regulation; (3) what effect accommodating the e x e rc ise of the right would have on guards, other prisoners, and prison resources

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generally; and (4) whether there are ready, easy-to-implement alternatives that would a c c o m m o d a te the prisoner's rights. Id. at 89-91. Here, the Defendants attach Defendant Morgan's affidavit to their statement of u n d is p u te d facts. (#16-2) According to Defendant Morgan's affidavit, on April 28, 2 0 0 9 , he notified all inmates at PCRDF that they would no longer be allowed to receive p h o to g ra p h s in the mail. (#16-2 at p.3) Although inmates were previously permitted to k e e p three personal photographs in their possession, Defendant Morgan advised inmates to notify their friends and family that under the new policy these items would be c o n s id e re d contraband and destroyed. (#16-2 at p.3) A c c o rd in g to Defendant Morgan, the policy was implemented for a number of re a s o n s , including the administrative burden of attempting to ascertain the number of p h o to g ra p h s an inmate possessed when new photographs arrived in the mail, the threat of f ire from keeping an excessive number of photographs in cells, and an increased difficulty in conducting cell searches. (#16-2 at p.2) In addition, Defendant Morgan explained that th e continual violations of the previous policy threatened the security of the PCRDF b e c a u s e deputies were spending an inordinate amount of time enforcing the photograph p o lic y. (#16-2 at p.2) Plaintiff has failed to present any evidence contradicting D e f e n d a n t Morgan's testimony. In analyzing the factors outlined in Turner, the Court first must determine whether th e re is a valid, rational connection between the regulation at issue and a legitimate

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government interest. The policy Plaintiff challenges was implemented to maintain order, s e c u rity, and safety at the PCRDF. By decreasing the time PCRDF deputies expend e n f o rc in g the previous photograph policy, they are better able to direct their focus to e n s u rin g safety and order in the facility. Moreover, the new policy reduces the amount of p e rs o n a l property retained in cells, both making them easier to search and reducing the th re a t of fire. Based upon the undisputed evidence presented, the Court concludes that th e PCRDF policy at issue is reasonably related to legitimate penological interests id e n tif ie d by Defendant Morgan. Under Turner, the Court also must consider whether the inmate has an alternative m e a n s of exercising his first amendment rights. Here, the policy at issue restricts the type o f mail inmates may receive. The policy at issue does not affect the actual c o m m u n ic a tio n between inmates and their family members or friends. Under the new p o lic y, if a piece of mail is opened that contains photographs, only the photographs are c o n f isc a te d . The letter itself is delivered to the inmate. (#16-2 at p.3) Accordingly, in m a te s may continue to communicate with others through written correspondence. Further, the policy does not in any manner interfere with an inmate's ability to c o m m u n ic a te with family or friends through telephone calls or personal visits. As a re s u lt, although inmates may no longer be permitted to possess photographs of their f a m ily members or friends, their actual communication with these individuals is not a f f e c te d by the new policy.

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The third factor that the Court must consider is the impact that accommodating the in m a te would have on others. In this case, the new policy was enacted, in part, to reduce th e amount of personal property retained by inmates. This, in turn, allows guards to p ro v id e better security and conduct more effective cell searches. Accordingly, the new p o lic y benefits both the guards and other prisoners by enabling the PCRDF to be run in a m o re secure fashion. F in a lly, the Court must consider whether there are any ready alternative that exist th a t would better accommodate the inmate's rights. Here, the Court cannot say that there is any such alternative. The PCRDF attempted to better accommodate the inmates' desire to possess personal photographs in the past. However, the previous photograph policy p ro v e d to be both burdensome to enforce and unsuccessful in achieving its purpose of lim itin g the number of photographs possessed by inmates. As a result, although Plaintiff m a y not be pleased with the fact that he cannot keep photographs in his cell, he may c o n tin u e to communicate with his family and friends through both written correspondence a n d by telephone, as well as enjoy personal visits. As a result, the legitimate penological interests advanced by the Defendants in the im p le m e n ta tio n of the new photograph policy at the PCRDF outweigh Plaintiff's interest in possessing personal photographs. Accordingly, the policy does not violate Plaintiff's f irs t amendment rights.

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D.

M o tio n to Amend his Complaint

In his motion to amend his Complaint, Plaintiff requests that he be permitted to id e n tif y one of the Doe Defendants named in his Complaint. Because Plaintiff has failed to state an actionable claim under 42 U.S.C. § 1983, the Court recommends that P la in tif f 's motion (#22) be DENIED as moot. IV . C o n c lu s io n : T h e Court recommends that Defendants' motion for summary judgment (#14) be G R A N T E D and that Plaintiff's claims be DISMISSED without prejudice. In addition, th e Court recommends that Plaintiff's motion to amend (#22) be DENIED as moot. D A T E D this 5th day of March , 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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