Cunningham v. Blades et al

Filing 131

MEMORANDUM DECISION AND ORDER granting 119 Motion for Summary Judgment; granting 124 Motion to Strike. Plaintiffs entire case is DISMISSED with prejudice. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

LOUIS EUGENE CUNNINGHAM,
Case No. 1:05-CV-00515-REB
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
SERGEANT FLETCHER,
Defendant.

Pending before the Court is Defendant Sergeant Fletcher’s Motion for Summary
Judgment, seeking dismissal of Plaintiff’s First Amendment claim that his right to receive
legal mail was violated, and Defendant’s Motion to Strike Portions of Plaintiff’s
Affidavit. (Dkt. 119, 124.) Both parties have consented to the jurisdiction of a United
States Magistrate Judge to enter final orders in this case. (Dkt. 90.) See 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73.
On December 11, 2012, the Court heard oral argument on the pending motions.
The Court permitted Plaintiff to file a supplement to clarify his position (Dkt. 128), and
Defendant was permitted to file a reply. (Dkt. 129.) Having reviewed the record and the
arguments of the parties, the Court enters the following Order granting Defendant’s
Motion for Summary Judgment and dismissing Plaintiff’s Complaint with prejudice.
MEMORANDUM DECISION AND ORDER - 1

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
1.

Standard of Law
Summary judgment is appropriate where a party can show that, as to any claim or

defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of the
summary judgment rule “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. Material facts are those “that might affect the
outcome of the suit.” Id. at 248. “Disputes over irrelevant or unnecessary facts will not
preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).
The moving party is entitled to summary judgment if that party shows that each
material fact cannot be disputed. To show that the material facts are not in dispute, a party
may cite to particular parts of the record, or show that the adverse party is unable to
produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A) & (B). The
MEMORANDUM DECISION AND ORDER - 2

Court must consider “the cited materials,” but it may also consider “other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
If the moving party meets its initial responsibility, then the burden shifts to the
opposing party to establish that a genuine dispute as to any material fact actually does
exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
existence of a scintilla of evidence in support of the non-moving party’s position is
insufficient. Rather, “there must be evidence on which the jury could reasonably find for
the [non-moving party].” Liberty Lobby, 477 U.S. at 252.
Material used to support or dispute a fact must be of the type that can be
“presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
Affidavits or declarations submitted in support of or in opposition to a motion “must be
made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4). If a party “fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact,” the Court may consider that fact to be
undisputed. Fed. R. Civ. P. 56(e)(2). The Court may grant summary judgment for the
moving party “if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. Although all reasonable inferences which can be drawn
from the evidence must be drawn in a light most favorable to the non-moving party, T.W.
MEMORANDUM DECISION AND ORDER - 3

Elec. Serv., Inc., 809 F.2d at 630-31, the Court is not required to adopt unreasonable
inferences from circumstantial evidence, McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th
Cir. 1988).
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To have
a claim under § 1983, a plaintiff must show the existence of four elements: “(1) a
violation of rights protected by the Constitution or created by federal statute (2)
proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).1 Section 1983 is “‘not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

Inmates retain the First Amendment right to send and receive mail. See
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). However, prison officials may review
and place reasonable limitations on inmate mail. See Witherow v. Paff, 52 F.3d 264 (9th
Cir. 1995). For example, prison officials may inspect all incoming and outgoing mail for
reasons of institutional order and security. Wolff v. McDonnell, 418 U.S. 539, 576 (1974).
“[M]aintaining institutional security and preserving internal order and discipline

1

42 U.S.C. § 1983, provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State, . . . subjects or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
MEMORANDUM DECISION AND ORDER - 4

are essential goals that may require limitation or retraction of the retained constitutional
rights of both convicted prisoners and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520,
546 (1979). Therefore, “[w]hen an institutional restriction infringes a specific
constitutional guarantee, such as the First Amendment, the practice must be evaluated in
the light of the central objective of prison administration, safeguarding institutional
security.” Id. at 547.
Allegations that mail delivery was delayed for an inordinate amount of time are
sufficient to state a claim for violation of the First Amendment. Antonelli v. Sheahan, 81
F.3d 1422, 1432 (7th Cir. 1996). A temporary delay in the delivery of mail resulting from
a prison's security inspection does not violate a prisoner's First Amendment rights.
Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999).
Even if a prison official delayed an inmate’s mail for an inordinate amount of time,
a constitutional tort requires that the plaintiff show that the state actor deliberately,
intentionally, or recklessly caused the deprivation. See Redman v. County of San Diego,
942 F.2d 1435, 1445 n.13 (9th Cir. 1991) (“deliberate indifference” is conduct intended to
harm, or conduct that “was so reckless as to be tantamount to a desire to inflict harm.”).
Gross negligence and ordinary negligence are not actionable under § 1983, because such
actions are not an abuse of governmental power but merely a “failure to measure up to the
conduct of a reasonable person.” Daniels v. Williams, 474 U.S. 327 (1986).

MEMORANDUM DECISION AND ORDER - 5

2.

Material Facts
Pursuant to the Initial Review Order issued in this case, Plaintiff was permitted to

proceed on a claim that his First Amendment rights were violated in August 2005 when
Defendants allegedly intercepted clearly-marked legal mail, containing confidential
attorney-client privileged communications and a $5,000 attorney’s fees retainer refund
check from an attorney hired in Plaintiff’s state criminal case. (Dkt. 8.) Plaintiff alleged
that he needed the refunded retainer money to hire a new attorney, but he could not do so,
because he did not receive a replacement check until December 2005.
Plaintiff originally sued Warden Randy Blades, Assistant Warden Attencio,
Lieutenant Bromley, Sergeant Fletcher, and Captain Cluney. (Dkt. 3.) After the Initial
Review Order, Plaintiff filed a First Amended Complaint, narrowing his claim to one
against Sergeant Fletcher.2 (Dkt. 10.) Plaintiff is not proceeding in forma pauperis (Dkt.
2) and was responsible for his own service of process upon Defendants, and, although his
case was earlier dismissed for lack of timely service, the United States Court of Appeals
for the Ninth Circuit deemed Plaintiff’s efforts to serve Defendant Fletcher through the
Idaho Attorney General’s Office sufficient to accomplish service of process. (Dkt. 74.)
Plaintiff and Defendant Sergeant Fletcher put forward different factual versions of
what happened when Plaintiff’s criminal defense attorney, Matthew Campbell, ended his

2

Plaintiff later attempted to withdraw his amended complaint, and proceed instead on the original
complaint, but was not permitted to do so by Judge Fred L. Van Sickle. (Dkt. 16, 23.) Even if the
amendment had been allowed, Plaintiff has no facts supporting the culpability of any Idaho Department
of Correction official or employee regarding the handling of Plaintiff’s mail, as explained in this Order.
MEMORANDUM DECISION AND ORDER - 6

representation of Plaintiff and tried to refund Plaintiff’s $5,000 retainer. Defendant relies
on Mr. Campbell’s description of what he did to return the retainer to Plaintiff. Plaintiff
relies on speculation and supposition about what was done.
There is no dispute that, when Mr. Campbell returned Plaintiff’s retainer money,
he first sent a trust account check, which was never cashed or deposited, and then later on
a cashier’s check or money order, which eventually was deposited into Plaintiff’s prison
trust account. What is disputed is when the particular checks were sent, to whom they
were sent, and what role Defendant played in handling the checks.
Plaintiff alleges that: (1) prior to August 11, 2005, Mr. Campbell mailed, to
Plaintiff in prison, a retainer refund check for $5,000 contained in Mr. Campbell’s law
firm envelope; (2) Defendant Fletcher stole the check from the prison mail room; (3) on
August 11, 2005, Plaintiff wrote to Warden Randy Blades complaining that he had been
expecting a attorney’s refund check that had not been received (Dkt. 122-3, p. 9); and (4)
“[i]t wasn’t until the first check was taken by the defendant that a second check was
requested and, because of the missing first check, the plaintiff then requested Campbell to
send the second check to [plaintiff’s] daughter in California.” (Plaintiff’s Disputed Facts,
Dkt. 121-2, p. 2.) However, Plaintiff has no first-hand knowledge of such alleged facts.
His supplement, filed on December 19, 2012, adds nothing to Plaintiff’s existing facts or
arguments. (Dkt. 128.)
Mr. Campbell, however, does have first-hand knowledge of what occurred–at least
at his end of things–with the two different checks. Mr. Campbell states that: (1) Plaintiff
MEMORANDUM DECISION AND ORDER - 7

first wrote a letter to Mr. Campbell asking that the retainer refund check be sent to
Plaintiff’s daughter, Catherine Thain; (2) at Plaintiff’s direction, Mr. Campbell sent the
“first” check (drawn on the law firm’s trust account) to Catherine Thain, at 30908
Wellington Circle, Temecula, CA 92591 (Dkt. 119-5); (3) ISCI employees called Mr.
Campbell’s office about this first check and the source of the funds, but Mr. Campbell
instructed his office staff not to answer the questions (Dkt. 119-5, pp. 48-50); (4) when
Mr. Campbell later became aware that the first check had never been negotiated, his
office obtained a cashier’s check or money order in the amount of $4,945.00 (after
deducting $50.00 for his services, and an additional $5.00 for the cashier’s check or
money order);(5) Mr. Campbell then mailed this replacement payment directly to the
Plaintiff at the prison; and (6) the check or money order was deposited in Plaintiff’s trust
account on December 2, 2005. (Dkt. 122-4, p. 12.)3
Plaintiff assumes that a check had been sent by Mr. Campbell’s office to the

3

Defendant relies on letters between Mr. Campbell and Plaintiff and emails between Mr.
Campbell and Defendant’s counsel. Even after the hearsay nature of these statements was raised at the
oral argument, Plaintiff has not challenged the authenticity of these writings, and he has not alleged or
shown that Defendant would be unable to produce Mr. Campbell at a deposition or at trial to verify the
authenticity of the writings. Therefore, the Court will rely on the letters and email correspondence when
determining the Motion for Summary Judgment. In determining admissibility for summary judgment
purposes, it is the content of the evidence rather than its form that must be considered. Fraser v. Goodale,
342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an
admissible form at trial, those contents may be considered on summary judgment even if the evidence
itself is hearsay. Id. (affirming consideration of hearsay contents of plaintiff’s diary on summary
judgment because at trial, plaintiff’s testimony of contents would not be hearsay). Additionally, Plaintiff
has not challenged the authenticity of this evidence pursuant to F.R.C.P. 56(c)(2). The Court in its
discretion will consider the Defendant’s assertions of fact pertaining to Mr. Campbell’s version of events
as undisputed for purposes of the summary judgment motion, pursuant to F.R.C.P. 56(e)(2).

MEMORANDUM DECISION AND ORDER - 8

prison, before Campbell sent the check to Ms. Thain. Nothing in the record to support
that contention. Further, there is no reasonable inference to suggest that the check that
Campbell did send to Ms. Thain was then sent by Ms. Thain to the prison in an envelope
bearing the attorney’s law firm name. To the contrary, the only reasonable inference is
that the original trust account check that was sent to Ms. Thain, in an envelope addressed
to Ms. Thain (and not to Plaintiff), was later sent to Plaintiff at the prison in a separate
envelope that did not contain a lawyer’s return address, or designate the communication
as “legal mail.”
Under Rule 56, a party cannot merely “dispute” a material fact. Rather, he must
come forward with sufficient evidence upon which a jury could find in his favor. Here,
Plaintiff has no personal knowledge to support his version of the facts. Moreover, Mr.
Campbell, who does have knowledge of what his office did and did not send out, makes
no mention of any check having been prepared prior to the check sent to Ms. Thain.
Rather, he describes a single check from his trust account, sent to Ms. Thain, which was
then followed (after learning that the first check was never deposited) by a cashier’s
check or money order sent directly to Defendant at the prison.
Therefore, for purposes of summary judgment, because Defendant came forward
with evidence from Mr. Campbell, the burden of proving existence of another check
shifted to Plaintiff, but he has not met that burden. Hence, summary judgment based on
Defendant’s asserted facts is not precluded by Plaintiff’s bare argument that there is a
genuine dispute on the material fact of where, how, and to whom the first check from Mr.
MEMORANDUM DECISION AND ORDER - 9

Campbell was sent.
3.

Defendant’s Motion to Strike
As noted above, Plaintiff has made several factual assertions that are not based

upon personal knowledge. Defendant has moved to strike these and other statements of
Plaintiff and his witness, Robert Hollifield.
Under Federal Rule of Civil Procedure 56(c)(2), a party “may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” An affidavit is an acceptable form in which to present evidence
in the summary judgment context. However, “[a]n affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
Defendant argues that Plaintiff has submitted an Affidavit that contains argument
rather than testimony based on personal knowledge. Defendant states that Plaintiff has no
personal knowledge that Defendant attempted to steal the check at issue or failed to
forward it to the Office of Offender Accounts, or that the check was “missing” for two
weeks. The Court agrees. The record contains insufficient evidence to support these
contentions. The record does reflect that the first check was never cashed. Because the
Affidavit lacks sufficient foundational facts supporting an allegation of theft and retention
of the check by Sergeant Fletcher and an allegation that the check was “missing,” those
portions of the Affidavit will be stricken.
MEMORANDUM DECISION AND ORDER - 10

Defendant also asks the Court to strike the Declaration of Inmate Robert
Hollifield, who states that all types of employee misconduct goes on at the prison, and
that Defendant stole money and property from inmates and improperly charged Hollifield
for insuring or certifying mail that was never actually insured or certified. (Dkt. 122-3,
pp. 1-7.) The Court agrees that Hollifield’s statements are without sufficient factual
foundation. In addition, because Hollifield has no personal knowledge of the facts
surrounding Plaintiff’s check, the information Hollifield offers would not be sufficient to
show that Defendant Fletcher acted with culpability in Plaintiff’s circumstance.
Therefore, the Motion to Strike will be granted.
4.

Discussion
After reviewing the parties’ briefing and evidentiary submissions in this case, the

Court concludes that the record reflects that there is no triable issue of material fact as to
whether Plaintiff’s “legal mail” was withheld from him or whether his funds were ever
misappropriated by Defendant Sergeant Fletcher or anyone else at the prison. Plaintiff
eventually received his $5,000 (minus his attorney’s handling fees). The finer point to be
determined is whether the delay in the handling of Plaintiff’s check amounted to a
constitutional violation–which requires that Plaintiff bring forward evidence upon which
a jury could find that Defendant acted deliberately, intentionally, or recklessly in delaying
Plaintiff’s receipt of his check. Because the Court finds that Plaintiff has not brought
forward sufficient evidence regarding whether the check arrived in an envelope clearly
marked as a confidential attorney-client privileged communication, or whether Defendant
MEMORANDUM DECISION AND ORDER - 11

had a culpable state of mind to support a constitutional violation, summary judgment is
appropriate.
The only reasonable reading of the record indicates that the first refund retainer
check, issued by Plaintiff’s attorney and drawn on his trust account, was sent to Plaintiff’s
daughter, Catherine Thain, and that the check then must have been redirected in a
different envelope by Ms. Thain to Plaintiff at the Idaho prison. When that check arrived
at the prison in an envelope not identifying it as an attorney-client privileged piece of
mail, it was opened in the regular course of inspecting all general mail for contraband.
(Dkt. 119-3, Fletcher Aff., ¶ 3.) The personal check was found and treated as potential
contraband. (Id.) However, because it was a personal check from an attorney’s office,
Defendant Fletcher called the attorney’s office to tell them it could not be deposited
because it was a personal check. (Id., ¶ 7.) Mr. Campbell’s office refused to give Sergeant
Fletcher any information about the check that might have helped solve the mystery, and
so the check was forwarded to the IDOC Office of Offender Accounts. (Id., ¶ 6; Dkt. 1195, Cunningham Depo, p. 39, ll. 17-24.) Sergeant Fletcher does not know what happened
to the check after it was sent to Offender Accounts. (Fletcher Aff., ¶ 6.)
Plaintiff argues that Sergeant Fletcher may not have sent the check to the Office of
Offender Accounts immediately, but Plaintiff’s contention that the check was “missing
for two weeks” is stricken for lack of personal knowledge to support it. Sergeant Fletcher
states that he placed a telephone call to the attorney’s office, but he does not directly
address whether the check was sent to Offender Accounts before or after his phone call.
MEMORANDUM DECISION AND ORDER - 12

Regardless, any question about the exact timing of when the check was internally
forwarded to the Office of Offender Accounts is not enough to create a genuine dispute of
material fact to permit Plaintiff to proceed to trial, given that there is no evidence in the
record that Sergeant Fletcher recklessly, intentionally, or deliberately mishandled the
check or misappropriated Plaintiff’s funds. Rather, the record reflects that Sergeant
Fletcher was attempting to resolve the issue to determine whether the check could be
deposited into Plaintiff’s account, notwithstanding the fact that the check was in a form
that was inconsistent with prison security procedures, and that it had arrived in a manner
that was inconsistent with prison security procedures. See Fletcher Aff., ¶ 6 (“At that
time, Offender Accounts had more authority in regards to depositing funds and may have
been able to have the check deposited because it came from an attorney’s office.”); see
Exhibits to Fletcher Affidavit.
The record does show that some period of several weeks to several months elapsed
before Plaintiff actually received the remainder of his retainer refund from Mr. Campbell,
in the later mailed cashier’s check or money order. However, there is no evidence that the
delay was attributable to a reckless, intentional, or deliberate mishandling of the check by
Sergeant Fletcher. The delay was attributed to the fact that the original check was not
sent to the prison in an envelope identifying the sender as an attorney; the fact that the
check was a personal check and not a cashier’s check or money order; the fact that Mr.
Campbell’s law office would not confirm the circumstances or source of the funds (Mr.
Campbell’s trust account) so that the check could have been identified; the fact that
MEMORANDUM DECISION AND ORDER - 13

several different prison employees tried to determine what to do with the check; the fact
that Plaintiff had separate correspondence going on with Mr. Campbell about the check;
and the fact that Mr. Campbell finally re-sent (according to his own time frame) a
cashier’s check or money order in December 2005.
Importantly, there is insufficient evidence in the record to show that Defendant
Fletcher’s part in the delay was reckless, intentional, or deliberate. Without evidence
supporting a sufficiently culpable state of mind, Plaintiff cannot meet the elements of a
§ 1983 claim. Plaintiff’s allegations regarding Defendant Fletcher’s state of mind are
unsupported in fact, because they are premised on Plaintiff’s unsupported allegations that
the first check was sent into the prison by Mr. Campbell in his attorney-labeled envelope.
Upon this faulty premise, Plaintiff wrote an Offender Concern Form to Sergeant
Fletcher, asking why confidential legal mail that was clearly marked by a law firm was
held for up to two weeks. (Dkt. 119-3, p. 23.) Defendant Fletcher responded, “I have no
idea what you are speaking of,” which Plaintiff contends was a deception to cover up
Fletcher’s act of stealing the check. However, because no evidence exists that such a
check was sent to the prison in that manner, Defendant Fletcher’s response is consistent
with the evidence in the record, which shows that what was received was a personal
check, not correspondence, and that the check did not arrive in an attorney’s envelope.
The Court is not required to adopt an unreasonable inference from circumstantial
evidence. See McLaughlin v. Liu, 849 F.2d at 1208. Construed in its most favorable light,
this written response by Defendant is merely a “scintilla” (meaning a glimmer or spark)
MEMORANDUM DECISION AND ORDER - 14

of evidence that is not enough to support the requisite culpable state of mind for
Plaintiff’s delay-of-legal-mail cause of action. See Liberty Lobby, 477 U.S. at 252.
5.

Conclusion
Plaintiff has failed to bring forward sufficient evidence upon which a jury could

reasonably find that Sergeant Fletcher recklessly, deliberately, or intentionally
“intercepted clearly posted to be legal mail in content and confidential attorney client
privileged communication [sic].” (Amended Complaint, p. 1.) See Liberty Lobby, 477
U.S. at 252. What resulted from the circuitous manner in which Plaintiff’s attorney sent
Plaintiff’s retainer refund to him (originally via Plaintiff’s daughter, as requested by
Plaintiff) was a prison confiscation of the check as contraband, pursuant to prison security
inspection procedures. There was no culpable delay of legal mail or misappropriation of
Plaintiff’s monies, and, thus, no violation of Plaintiff’s First Amendment rights. See
Crofton v. Roe, 170 F.3d at 961 (a temporary delay in the delivery of mail resulting from
a prison's security inspection does not violate a prisoner's First Amendment rights).
Accordingly, Sergeant Fletcher is entitled to summary judgment, and Plaintiff’s entire
case will be dismissed with prejudice.
ORDER
IT IS ORDERED:
1.

Defendant’s Motion to Strike (Dkt. 124) is GRANTED.

2.

Defendant’s Motion for Summary Judgment (Dkt. 119) is GRANTED.

3.

Plaintiff’s entire case is DISMISSED with prejudice.

MEMORANDUM DECISION AND ORDER - 15

DATED: March 5, 2013

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16