Tolliver v. Mills

Filing 43

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 40 Report and Recommendations, granting 37 Motion for Summary Judgment filed by Andrew Mills. Plaintiff Charles Tolliver's claims are dismissed with prejudice. Signed by District Judge Halil S. Ozerden on 8/2/2022 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
CHARLES TOLLIVER
v.
ANDREW MILLS, Deputy Warden

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PLAINTIFF
Civil No. 1:20cv180-HSO-BWR
DEFENDANT

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION [40], GRANTING DEFENDANT’S
MOTION [37] FOR SUMMARY JUDGMENT, AND DISMISSING
PLAINTIFF’S CLAIMS WITH PREJUDICE
This matter comes before the Court on the Report and Recommendation [40]
of United States Magistrate Judge Robert H. Walker, entered in this case on May
23, 2022, and the Motion [37] for Summary Judgment filed by Defendant Andrew
Mills on October 7, 2021. Based upon a review of the pleadings and relevant legal
authority, the Magistrate Judge recommended that Defendant’s Motion [37] for
Summary Judgment be granted and that Plaintiff Charles Tolliver’s claims be
dismissed with prejudice. R. & R. [40] at 10.
Based upon a review of the record, the Court finds that because Plaintiff has
not produced evidence sufficient to raise a genuine dispute of material fact as to
whether he was deprived of any federal constitutional or statutory right, the Report
and Recommendation [40] should be adopted as to its conclusions that Defendant’s
Motion [37] for Summary Judgment should be granted and that Plaintiff’s claims
should be dismissed with prejudice.

I. BACKGROUND
Plaintiff Charles Tolliver (“Plaintiff” or “Tolliver”) is incarcerated at South
Mississippi Correctional Institution (“SMCI”) in Leakesville, Mississippi. See
Compl. [1] at 2. He claims that on February 14, 2020, Defendant Andrew Mills
(“Defendant” or “Mills”), who is the deputy warden at SMCI, and another officer at
the facility “began pulling strings, bottles, and items from windows peeking in to
observe.” Id. at 5.1 According to Plaintiff, Mills “snatched the cable connected to
[Plaintiff’s] television from the outside of the window concluding in the destruction
of my personal property.” Id. at 4.
On May 29, 2020, Plaintiff filed a Complaint [1] in this Court, naming Mills
as the sole Defendant and advancing causes of action under 42 U.S.C. § 1983.2 See
id. at 2-3. Plaintiff alleges that, in destroying his personal property, Mills was
discriminating against him based upon race and retaliating against him for a “suit
filed against [Mills] in the past.” Id. at 3. Liberally construing Plaintiff’s pro se
Complaint, he asserts § 1983 claims against Mills for: (1) racial discrimination in
violation of the Equal Protection Clause of the Fourteenth Amendment; (2)
retaliation; and (3) property deprivation. See id.

Mills characterizes the event as a “shakedown.” Mem. [38] at 1.
It is clear from Plaintiff’s “COMPLAINT FOR VIOLATION OF CIVIL RIGHTS,” Compl.
[1] at 1, that he only raises claims under § 1983, see id. at 3 (checking the box indicating
that he was bringing a suit against “State or local officials (a § 1983 claim)”). He has not
raised any state-law claims in any other filings. As such, the record is clear that Plaintiff
has not advanced any state-law claims in this case. See id.
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On October 7, 2021, Mills filed a Motion [37] for Summary Judgment,
asserting that he is entitled to qualified immunity on Plaintiff’s claims. See Mot.
[37]; Mem. [38]. Mills argues that Plaintiff has failed to show a violation of clearly
established law and that his actions were objectively reasonable. See Mem. [38] at
5-14. Mills maintains that Plaintiff’s discrimination and retaliation claims fail
because they are only based upon his subjective belief of discrimination and
retaliation, and his mere conclusory allegations in this regard cannot withstand
summary judgment. See id. at 6-9. Mills also attacks Plaintiff’s retaliation claim
on grounds that he has not produced evidence that he previously filed any lawsuit
or grievance against Mills through the Mississippi Department of Corrections’
Administrative Remedy Program (“ARP”), that the allegation is “vague and lacks
the specificity required to even get it off the ground,” and that the “one-time
incident involving a minor sanction is insufficient to prove a case of retaliation.”
Id. at 8-9.
As for Plaintiff’s property deprivation claim, Mills contends that “[t]his is not
a constitutional claim and given that the State of Mississippi has adequate postdeprivation remedies in place for the unauthorized deprivation of Plaintiff’s
property, his remaining claims are barred by the Parratt/Hudson doctrine.” Id. at
10; see also Hudson v. Palmer, 468 U.S. 517, 536 (1984); Parratt v. Taylor, 451 U.S.
527, 543-44 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327 (1986).
Mills maintains that the State of Mississippi provides remedies for the deprivation
of Plaintiff’s property and cites the State’s statutes for “claim and delivery” and

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replevin, as well as cases concerning the Takings Clause under the Mississippi
Constitution. See Mem. [38] at 11-12.
On May 23, 2022, the Magistrate Judge entered a Report and
Recommendation [40] concluding that “Tolliver has failed to carry his burden of
demonstrating that Mills violated a statutory or constitutional right” and “has
failed to overcome Mills’ entitlement to qualified immunity.” R. & R. [40] at 10.
After Plaintiff requested and received an extension of time to object to the Report
and Recommendation [40], his deadline to file any objection was June 23, 2022.
See Text Order, June 9, 2022. To date, Plaintiff has failed to file any Objection to
the Report and Recommendation [40], and the time for doing so has passed. See id.
II. DISCUSSION
Where no party has objected to a magistrate judge’s report and
recommendation, the Court need not conduct a de novo review of it.

28 U.S.C.

§ 636(b)(1) (“a judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings and recommendations to which
objection is made”). In such cases, the Court applies the “clearly erroneous, abuse
of discretion and contrary to law” standard of review. United States v. Wilson, 864
F.2d 1219, 1221 (5th Cir. 1989).
Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). A dispute of fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Dyer v.

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Houston, 964 F.3d 374, 379 (5th Cir. 2020). If the movant carries this burden, “the
nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc). A court must “construe all facts and inferences in the
light most favorable to the nonmoving party when reviewing grants of motions for
summary judgment.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (quotation
omitted).
Having conducted the required review, the Court finds that Plaintiff has not
offered any competent summary judgment evidence that would create a material
fact question as to any of his claims. A threshold requirement for maintaining a
§ 1983 claim is to show a “a deprivation of a right secured by federal law.” Victoria
W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004). Plaintiff has simply not done so.
Plaintiff has not presented competent evidence tending to show that he
“received treatment different from that received by similarly situated individuals
and that . . . the unequal treatment stemmed from a discriminatory intent,” as
required to support an Equal Protection violation. Fennell v. Marion Indep. Sch.
Dist., 804 F.3d 398, 412 (5th Cir. 2015). Nor has he submitted any evidence “from
which retaliation may plausibly be inferred” from his exercise of a constitutional
right. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); see also Lempar v.
Livingston, 834 F. App’x 966, 967 (5th Cir. 2021). It is axiomatic that “[m]ere
conclusionary allegations of retaliation will not withstand a summary judgment
challenge.” Woods, 60 F.3d at 1166.

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As for Plaintiff’s property deprivation claim, the Parratt/Hudson doctrine
dictates that “a deprivation of a constitutionally protected property interest caused
by a state employee’s random, unauthorized conduct does not give rise to a § 1983
procedural due process claim, unless the State fails to provide an adequate
postdeprivation remedy.” Allen v. Thomas, 388 F.3d 147, 149 (5th Cir. 2004)
(quoting Zinermon v. Burch, 494 U.S. 113, 115 (1990)); see Hudson, 468 U.S. at 536;
Parratt, 451 U.S. at 543-44. As Mills states in his Memorandum [38], and as the
Magistrate Judge explains in the Report and Recommendation [40], Mississippi law
affords Plaintiff adequate remedies. See R. & R. [40] at 7; Mem. [38] at 11-12.
Because Plaintiff has not demonstrated that the State’s postdeprivation remedies
are not adequate, Mills’ request for summary judgment on the property deprivation
claim is well taken. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (“The
burden is on the complainant to show that the state’s postdeprivation remedy is not
adequate.”).
In sum, the record reveals that Plaintiff failed to create a material fact
question precluding summary judgment on any of his claims.
III.

CONCLUSION

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Report and
Recommendation [40] of United States Magistrate Judge Robert H. Walker, entered
in this case on May 23, 2022, is ADOPTED.

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IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion [37] for
Summary Judgment filed by Defendant Andrew Mills on October 7, 2021, is
GRANTED, and Plaintiff Charles Tolliver’s claims are DISMISSED WITH
PREJUDICE.
SO ORDERED AND ADJUDGED, this the 2nd day of August, 2022.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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