Knox v. Deputy John Doe

Filing 62

MEMORANDUM OPINION AND ORDER declining to adopt 57 Report and Recommendations; Motion 36 is DENIED; and Defendant Deputy Mike Livermore's Motion for Summary Judgment 41 is DENIED as to Mr. Knox's claim against Deputy Livermore in his individual capacity for unconstitutional deprivation of his right of access to the Courts, and GRANTED as to all of Mr. Knox's other claims, which are DISMISSED WITH PREJUDICE; see order for specifics. Signed by Honorable Timothy L. Brooks on September 23, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

PLAINTIFF

CHRISTOPHER GEORGE KNOX
CASE NO. 5:15-CV-5035

V.

DEFENDANT

DEPUTY MIKE LIVERMORE

MEMORANDUM OPINION AND ORDER

Currently before the Court is the Report and Recommendation ("R & R") (Doc. 57)
by the Honorable Erin L. Setser, United States Magistrate Judge for the Western District
of Arkansas, recommending that this Court deny Plaintiff Christopher George Knox's
Motion for Summary Judgment (Doc. 36), grant Defendant Deputy Mike Livermore's
Motion for Summary Judgment (Doc. 41), and dismiss Mr. Knox's case with prejudice.
Mr. Knox has filed Objections (Doc. 61) to the R & R, prompting this Court to conduct a
de nova review of the record in this case.

Having completed its review of Mr. Knox's

Objections and the record, the Court now sustains one of Mr. Knox's Objections, declines
to adopt the R & R, denies Mr. Knox's Motion, and grants in part and denies in part Deputy
Livermore's Motion, as described in further detail below.
I. BACKGROUND

On January 7, 2015, Mr. Knox filed a civil rights lawsuit in federal court against the
Washington County Sheriff's Office and others, complaining about the conditions of his
confinement as an inmate at the Washington County Detention Center ("WCDC").

See

Knox v. Bradley eta/., Case No. 5:15-cv-5006, (Doc. 1), (W.D. Ark. Jan. 7, 2015). That
case is still pending. On January 25, 2015, a "shakedown" was conducted at the WCDC,

1

during which inmates' cells were searched for contraband while the inmates were
removed from the area.

During that shakedown, Deputy Livermore threw away some

envelopes he found in Mr. Knox's cell that he says he believed had been hoarded in
excess of what inmates were permitted to keep.

After returning to his cell, Mr. Knox

discovered that two pages of personal notes that he had compiled to aid himself in
litigating his case had been thrown out with the excess envelopes; the notes had been
stored inside one of those envelopes. After unsuccessfully going through the Detention
Center's internal grievance process to try and retrieve his notes, Mr. Knox filed the instant
lawsuit, claiming that the removal and destruction of his notes violated his constitutional
rights.
Mr. Knox and Deputy Livermore filed cross-motions for summary judgment in late
2015, and after initial briefing, a hearing, and further supplemental briefing were all
conducted, Magistrate Judge Setser submitted her R & R on these motions in June of
2016.

In her R & R, Judge Setser found that: (1) the search of Mr. Knox's cell did not

violate his Fourth Amendment rights because prisoners have no legitimate expectation of
privacy in their cells, see Hudson

v.

Palmer, 468 U.S. 517, 529-30 (1984 ); (2) Mr. Knox's

Sixth Amendment right to counsel was not infringed, as that Amendment applies only to
criminal-not civil-matters, see Wolff

v.

McDonnell, 418 U.S. 539, 576 (1974); (3) Mr.

Knox's First Amendment right to send and receive legal mail, see Hudson, 468 U.S. at
547, was not infringed because no legal mail was actually impeded and there was no
evidence that Deputy Livermore actually read Mr. Knox's notes outside Mr. Knox's
presence, see Wolff, 418 U.S. at 577; (4) Mr. Knox was not unconstitutionally deprived of
his property because the state of Arkansas provides an adequate post-deprivation

2

remedy, Hudson, 468 U.S. at 536, in the form of an action for conversion, see, e.g., Elliott
v.

Hurst, 307 Ark. 134 (1991); and (5) Mr. Knox was not deprived of his constitutional right

of access to the courts, because his ability to litigate his conditions-of-confinement case
was not prejudiced by the loss of his notes, and because there was no evidence that
Deputy Livermore intended to restrict Mr. Knox's access to the courts. Since the R & R
found no constitutional violation had occurred, it found further that Deputy Livermore
could not be liable, officially or personally, for the loss or destruction of Mr. Knox's legal
notes. Accordingly, the R & R recommended denying Mr. Knox's Motion for Summary
Judgment, granting Deputy Livermore's Motion for Summary Judgment, and dismissing
Mr. Knox's case with prejudice.
Mr. Knox filed objections to the R & Rin a document containing sixteen numbered
paragraphs. (Doc. 61). Four of these paragraphs do not contain any true objections, but
rather simply recount procedural history, recite applicable legal standards, offer prayers
for relief, et cetera.

See id. at 1f1l 1, 4, 15-16.

The other twelve paragraphs contain

objections that can be categorically summarized as follows: (1) Mr. Knox believes Deputy
Livermore might have read Mr. Knox's legal mail outside of Mr. Knox's presence and
intentionally destroyed it, see id. at 1f1l 3, 5-9, 12; (2) the WCDC has an official policy
permitting its employees to search inmates' legal mail for contraband outside those
inmates' presence, see id. at 1f 11; (3) Deputy Livermore's testimony in his affidavit lacks
credibility because it conflicts with certain responses he previously gave to Mr. Knox's
interrogatories, see id. at 1f1f 2-3, 5, 8, 14; (4) before issuing her R& R, Magistrate Judge
Setser made statements at the hearing that were favorable or sympathetic to Mr. Knox,
see id. at 1f1f 8, 13; and (5) Mr. Knox does not have an adequate post-deprivation remedy

3

for the loss of his legal notes, see id. at� 10. Thusly sequenced, this Opinion and Order
will discuss each of these five categorical objections in Section Ill after reciting the
appropriate legal standard in Section II.
II. LEGAL STAND ARD

As mentioned above, this Court's review of Magistrate Judge Setser's R & R is de
novo. See Branch v. Martin, 886 F.2d 1043, 1045-46 (8th Cir. 1989). A party moving for

summary judgment must establish both the absence of a genuine dispute of material fact
and its entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'/ Bank of
Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir. 1999). The

same standard applies where, as here, the parties have filed cross-motions for summary
judgment.

When there exists no genuine issue as to any material fact, "summary

judgment is a useful tool whereby needless trials may be avoided, and it should not be
withheld in an appropriate case."

United States v. Porter, 581 F.2d 698, 703 (8th Cir.

1978). Each motion should be reviewed in its own right, however, with each non-moving
party "entitled to the benefit of all inferences favorable to them which might reasonably
be drawn from the record,'' with respect to the particular motion being opposed by that
party. Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); see also
Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). In ruling on a motion

for summary judgment, the Court "should not weigh the evidence, make credibility
determinations, or attempt to determine the truth of the matter,'' but rather should simply
determine "whether a reasonable jury could return a verdict for the nonmoving party

4

based on the evidence." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir.
1996).
Ill. DISCUSSION
The Court begins its discussion of Mr. Knox's Objections by observing that none
of them appear to contest the R & R's finding that Mr. Knox's Sixth Amendment rights
were not violated. Additionally, Mr. Knox does not appear to contest the R & R's finding
that his Fourth Amendment rights were not violated, except insofar as he contends that
his legal mail was read without a warrant. See Doc. 61, � 6. As explained in the following
paragraph, there is no genuine dispute that Deputy Livermore did not read Mr. Knox's
legal mail. The Court agrees with the R & R's findings on Mr. Knox's claims under the
Fourth and Sixth Amendments, as well with the R & R's reasons for those findings, and
does not believe any further elaboration on those points is necessary here. Therefore, to
the extent that Mr. Knox is claiming that his rights were violated under the Fourth or Six
Amendments, those claims will be dismissed with prejudice.
Taking up Mr. Knox's first objection that Deputy Livermore might have read Mr.
Knox's legal mail outside of Mr. Knox's presence and intentionally destroyed it: the
pertinent question for the Court is whether there is evidence in the record-not mere
speculation-that this happened, and this Court is unable to find any.

The Court has

viewed the video recording of Deputy Livermore's search through Mr. Knox's belongings
(Doc. 47); although there are moments when Deputy Livermore can clearly be seen
handling one or more manila envelopes belonging to Mr. Knox, the Court did not see any
instances when Deputy Livermore appeared to be reading the contents of any documents
enclosed therein. Deputy Livermore, on the other hand, has provided evidence-in the

5

form of testimony through his affidavit-that he did not read Mr. Knox's legal documents.
(Doc. 55-2, ,m 5, 8). The evidence in the record does not permit any genuine dispute as
to this material fact, and therefore summary judgment in favor of Deputy Livermore is
appropriate on Mr. Knox's claim that his legal documents were read outside his presence
in violation of the First Amendment. And since there is no genuine dispute that Deputy
Livermore did not read Mr. Knox's legal mail, Mr. Knox's second objection concerning
whether Deputy Livermore read his legal mail pursuant to a WCDC official policy is moot.
Mr. Knox's third and fourth objections are also easily overruled. Mr. Knox argues
that the Magistrate Judge should have disregarded Deputy Livermore's testimony in his
affidavit because it lacked credibility. However, as noted above, the legal standard that
applies to summary judgment motions prohibits such credibility determinations. See, e.g.,
White

v.

Farrier,

849 F.2d 322, 326 (8th Cir. 1988) ("In rejecting Dr. Loeffelholz' opinion,

the magistrate made a credibility determination that is inappropriate in ruling on a motion
for summary judgment."). And although Mr. Knox argues that the Magistrate Judge's
R & R

is inconsistent with previous statements she made during the hearing that were

more favorable to Mr. Knox's position, this is ultimately irrelevant; it is perfectly normal for
different rulings in the same case to favor different parties, depending on the different

issues at play, and it is perfectly reasonable for a judge's perspective on a particular issue
or case to evolve as that judge becomes more informed by the law and the facts. At any
rate, the Court has carefully listened to the audio recording of the hearing, and did not
hear any rulings or orders therein that are inconsistent with the R & R.
A more difficult issue is posed by Mr. Knox's fifth and final objection-that he lacks
an adequate post-deprivation remedy for the taking and destruction of his legal notes. It

6

is true, as the R & R observed, that the United States Supreme Court has held that "an
unauthorized ... deprivation of property by a state employee does not constitute a
violation of ...the Fourteenth Amendment if a meaningful postdeprivation remedy for the
loss is available. Hudson
"

v.

Palmer,

468

U.S. 517,

533 (1984)

(emphasis added). And

the R & R is likewise correct that the state of Arkansas recognizes a cause of action for
conversion where "any distinct act of dominion [is] wrongfully exerted over property in
denial of, or inconsistent with, the owner's right. Elliott
"

v.

Hurst,

307 Ark.134, 138 (1991).

But note this Court's emphasis on the word "meaningful" above. In Arkansas, "[t]he
proper measure of damages for conversion of property is the market value of the property
at the time and place of the conversion."

Id. at

140.

Based on the evidence currently

before it, this Court cannot imagine that the "market value" of Mr. Knox's legal notes would
have been anything more than nominal, so the proper inquiry here is whether a recovery
of

$1.00

would be a "meaningful" post-deprivation remedy for the harm that Mr. Knox

suffered by the destruction of his legal notes. Naturally, the answer to that inquiry turns
on how much-and what type of-harm Mr. Knox suffered from this deprivation. This
Court does not understand the essence of Mr. Knox's alleged harm here to be the mere
conversion of notebook paper and scribblings; rather, he is alleging that the destruction
of his legal notes for his prior lawsuit has impeded his access to the courts.1
Inmates have a constitutional right of access to the courts that guarantees their
ability to file lawsuits challenging the conditions of their confinement. See Lewis

v.

Casey,

1 With that said, to whatever extent Mr. Knox is also asserting a run-of-the-mill claim under

the Fourteenth Amendment for unlawful deprivation of personal property, that claim will
be dismissed with prejudice because an action for conversion is an adequate post­
deprivation remedy.
7

518 U.S. 343, 355 (1996).

However, an inmate alleging that his right of access to the

courts has been violated "must show actual injury." Lewis, 518 U.S. at 349. And the right
of access "does not extend to the right to 'discover grievances' or to 'litigate effectively
once in court.'"

Cody

v.

Weber, 256 F.3d 764, 767-68 (8th Cir. 2001) (quoting Lewis,

518 U.S. at 354-55). But while it is one thing for a court to invoke this limitation on the
right of access in the face of an inmate's claim that his prison's law library should be more
voluminous, see, e.g., Lewis, 518 U.S. at 354, it is a very different matter when the harm
being alleged is the active and intentional interference with an inmate's attempts to file or
prepare legal documents, see id. at 350. "The taking of legal papers will often (though
perhaps not always) interfere with an inmate's right of access to the courts." Goff
113 F.3d 887, 892 (8th Cir. 1997).

v.

Nix,

Put another way, "the destruction or withholding of

inmates' legal papers burdens a constitutional right, and can only be justified if it is
reasonably related to a legitimate penological interest." Goff, 113 F.3d at 892. This must
be so, for it would be a very bizarre and dead-letter constitutional rule that forbids prison
officials from opening inmates' legal mail outside their presence, Cody

v.

Weber, 256 F.3d

at 768 ("mail from an attorney to an inmate client cannot be opened for inspection outside
the inmate's presence"), while permitting prison officials to intentionally destroy inmates'
legal documents for no good reason so long as the prison officials take care not to read
them first.
Viewing the record in the light most favorable to Mr. Knox for purposes of Deputy
Livermore's summary-judgment motion, the record shows a genuine dispute of material
fact as to whether Mr. Knox suffered actual injury as a result of the destruction of his legal
papers by Deputy Livermore.

Specifically, Mr. Knox has testified his "case file" was

8

destroyed-including the only copy in existence of his notes on the facts which gave rise
to his prior conditions-of-confinement lawsuit-while Deputy Livermore has provided no
evidence that this deprivation was reasonably related to any legitimate penological
interest.

Certainly the WCDC has a legitimate interest in conducting unannounced

shakedowns of an inmate's cell, outside of that inmate's presence, in order to search for
contraband.

But Deputy Livermore has not even attempted to articulate any legitimate

penological interest that he or the WCDC had in destroying Mr. Knox's legal papers during
the shakedown; instead, Deputy Livermore has simply claimed that he did not realize he
was throwing away legal papers at the time he did so. (Doc. 55-2, 1f 8). On this issue,
too, of whether Deputy Livermore intentionally destroyed Mr. Knox's legal papers, the
Court finds a genuine dispute of material fact-no matter whether the record is viewed in
the light most favorable to Mr. Knox or to Deputy Livermore (bearing in mind that both
parties filed motions for summary judgment). Deputy Livermore has provided evidence
that he did not act intentionally, through testimony in his affidavit as to his state of mind.

Id.

But Mr. Knox has provided evidence that Deputy Livermore did act intentionally,

through testimony at the hearing that his legal papers had been stored inside a large
manila envelope that was clearly marked as legal mail-a circumstance from which a
fact-finder could very reasonably infer intent to destroy legal documents on the part of
Deputy Livermore.2

2

In order to prevail on his claim in this particular case, Mr. Knox must show that Deputy

Livermore acted with the intention of impeding his access to the courts. But the Court is
not certain whether that would necessarily be the rule in a// right-of-access cases.

It is

certainly the rule that intent must be proven when such claims are brought under the First
Amendment, see, e.g., Scheeler

v.

City of St. Cloud, Minn., 402 F.3d 826, 830 (8th Cir.

2005), and as a general matter mere negligence is not enough for recovery under the
Due Process Clause of the Fourteenth Amendment, see Daniels
9

v.

Williams, 474 U.S.

The Court turns then to the issue of whether Mr. Knox may proceed to trial on this
claim against Deputy Livermore in his individual or official capacities. Deputy Livermore
argues that he is entitled to qualified immunity from Mr. Knox's claim against him in his
individual capacity.

To determine whether Deputy Livermore is entitled to qualified

immunity, this Court must conduct a two-step inquiry: (1) whether the facts, viewed in the
light most favorable to Mr. Knox, show that Deputy Livermore deprived him of a
constitutional right, and (2) whether that right was clearly established at the time of the
deprivation. Jones

v.

McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). The Court has just

explained in the preceding paragraph that the record sets forth a genuine factual dispute
as to whether Deputy Livermore intentionally destroyed Mr. Knox's legal documents with
no legitimate penological interest in doing so. And as should be clear from this Court's
citation to Eighth Circuit case law above, the right of inmates not to have their legal papers
intentionally destroyed absent a legitimate penological reason for doing so was clearly
established long before the incident giving rise to this lawsuit occurred, going at least as
far back to Chief Judge Richard Arnold's explicit articulation of it in Goff v. Nix, 113 F.3d
887, 892 (8th Cir. 1997). Therefore, Deputy Livermore is not entitled to qualified immunity
unless and until this material factual dispute is resolved in his favor at trial. Cf. Franklin

327, 328 (1986). But the right of access to the Courts, while existentially well-settled, has
a very "unsettled" textual basis in the Constitution; "[d]ecisions of [the United States
Supreme Court] have grounded the right of access to courts in the Article VI Privileges
and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due
Process Clause, and the Fourteenth Amendment Equal Protection and Due Process
Clauses."

Christopher

omitted).

And the specific contours of a constitutional right may be shaped by the

v.

Harbury, 536 U.S. 403, 415 & n.12 (2002) (internal citations

particular constitutional clause under which it arises. See Daniels, 474 U.S. at 329-30.
However, the Court is satisfied that the facts surrounding Mr. Knox's particular right-of­
access claim only implicate his rights under the First Amendment Petition Clause and the
Fourteenth Amendment Due Process Clause.
10

v.

Young, 790 F.3d 865, 867 (8th Cir. 2015) ("[A] district court's summary judgment order

denying qualified immunity may not be appealed insofar as it determines whether or not
the pretrial record sets forth a genuine issue of fact for trial." (internal quotation marks
and alterations omitted)).
Deputy Livermore also argues that he cannot be held liable in his official capacity.
Or to put the matter more plainly, he argues that Washington County cannot be liable for
his actions here, because he was not acting pursuant to any unconstitutional official policy
or custom of WCDC. See Bd. of Cnty. Comm'rs of Bryan Cnty., Okla.

v.

Brown, 520 U.S.

397, 403 (1997) ("[The United States Supreme Court has] required a plaintiff seeking to
impose liability on a municipality under [42 U.S.C.] § 1983 to identify a municipal 'policy'
or 'custom' that caused the plaintiff's injury.").
Livermore.

On this, the Court agrees with Deputy

The WCDC Detainee Handbook explicitly permits inmates to possess

"[r]equired legal material," (Doc. 43-3), and Mr. Knox has not provided any evidence that
there is "a continuing, widespread, persistent pattern" at WCDC of destroying or
withholding inmates' legal material, intentionally or otherwise, absent a legitimate
penological interest in doing so. Jenkins
Cir.

2009).

v.

Cnty. of Hennepin, 557 F.3d 628, 634 (8th

Because there is no genuine factual dispute that WCDC has no

unconstitutional official policy or custom on this matter, Deputy Livermore is entitled to
summary judgment on Mr. Knox's official-capacity claim against him.
IV. CONCLUSION
IT

IS

THEREFORE

ORDERED

that

Plaintiff

Christopher

George

Knox's

Objections (Doc. 61) are OVERRULED IN PART AND SUSTAINED IN PART, and the
Court DECLINES TO ADOPT the Report and Recommendation (Doc. 57) as follows:

11

•

Mr. Knox's Motion for Summary Judgment (Doc. 36) is DENIED; and

•

Defendant Deputy Mike Livermore's Motion for Summary Judgment (Doc.

41) is

DENIED as to Mr. Knox's claim against Deputy Livermore in his individual capacity

for unconstitutional deprivation of his right of access to the Courts, and
as to all of Mr. Knox's other claims, which are

GRANTED

DISMISSED WITH PREJUDICE.

With regard to Mr. Knox's remaining right-of-access claim against Deputy Livermore in
his individual capacity, a trial date and related deadlines will be set by separate scheduling
order.

IT IS SO ORDERED on this

J
13q.

day of Septem

KS
S DISTRICT JUDGE

12