Bush v. Epps et al
Filing
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Memorandum Opinion and Order. The Court granted Defendants' 25 Motion for Summary Judgment and dismissed Plaintiff's Complaint with prejudice. Final Judgment in favor of Defendants shall be entered on this date. Signed by Magistrate Judge Linda R. Anderson on 9/12/2013. (ACF)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
KANYNE BUSH
PLAINTIFF
VERSUS
CIVIL ACTION NO. 3:11CV152 LRA
BRIAN LADNER, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court upon the Motion for Summary Judgment filed by
Defendants Brian Ladner, Peggy Burks, and Rufus Burks. Kanyne Bush [hereinafter
“Plaintiff”], pro se, gave sworn testimony at an omnibus hearing which is being
considered by the Court in response to the motion filed by Defendants, along with his
responsive pleadings.1 The Court has also considered the allegations in the Complaint, as
augmented by Plaintiff's testimony, to determine if Plaintiff's claims are frivolous or fail
to state a claim upon which relief may be granted under 42 U.S.C. § 1915. Jurisdiction of
this case is based upon 42 U.S.C. § 1983, and it was assigned to the undersigned United
States Magistrate Judge for all purposes pursuant to the consent of the parties and by
Order entered by United States District Judge Carlton W. Reeves.
Plaintiff alleges that while housed in Rankin County in the Central Mississippi
Correctional Facility (“C.M.C.F.”), his legal documents were kept in legal storage due to
1
Plaintiff named Christopher Epps as a Defendant, but voluntarily dismissed him by
Order filed May 17, 2011. ECF No. 11.
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their voluminous nature. He claims that upon being transferred to East Mississippi
Correctional Facility (“E.M.C.F.”) in April 2009, prison officials lost his documents and
as a result, he was time-barred from appealing the district court’s denial of his petition for
federal habeas corpus relief to the Fifth Circuit. The docket in that cause indicates that
final judgment denying his habeas petition was entered on June 5, 2007. See Bush v.
Kelly, et al., 1:05CV484 -LG-JMR.
Plaintiff sues each of the Defendants in both their official and individual
capacities for alleged denial of access to the courts and deprivation of property without
due process. Specifically, he sues Defendant Ladner because he oversaw the property
room as associate warden. He sues Defendant Peggy Burks because she handled most of
the property in the storage room and was the individual who supervised his entries and
exits from the storage room. Plaintiff sues Defendant Rufus Burks because he allegedly
advised that the documents were on a van to be transferred with him to his next housing
facility, but failed to investigate the matter further when Plaintiff complained.
As grounds for relief, Plaintiff requests that Defendants reimburse him for or
produce to him his legal materials. He also asks for an award of compensatory, punitive,
and nominal damages in whatever amount the Court deems appropriate.
STANDARD OF REVIEW
The movants contend that they are entitled to a judgment as a matter of law in this
case pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is
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only appropriate where there is no genuine issue as to any material fact and the
Defendants are entitled to a judgment as a matter of law. FED. R. CIV. P. 56( C ). All of
the undisputed facts, and any inferences that may be drawn from those facts, must be
viewed in the light most favorable to the non-moving party. The substantive law
establishes those elements on which a plaintiff bears the burden of proof at trial; only
facts relevant to those elements of proof are considered for summary judgment purposes.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Defendants charge that summary judgment is appropriate because there is no
genuine issue as to any material fact in this case, and Plaintiff has failed to establish
constitutional violations under the facts as stated. Defendants principally argue that they
are immune from civil liability because Plaintiff (1) fails to allege that any of the
defendants were personally involved in the loss of his legal property; (2) his claims
amount to mere negligence; and, (3) he fails to demonstrate that the alleged loss of his
legal documents hindered his ability to timely file an appeal to the Fifth Circuit. The
Court finds that the motion should be granted for the reasons that follow.
DISCUSSION
It is well-established that prisoners have a constitutionally protected right of access
to the courts. Lewis v. Casey, 518 U.S. 343, 350 (1996) (citing Bounds v. Smith, 430 U.S.
817 (1977)). However, to prevail on an access-to-courts claim, an actual injury must
result from the defendant’s unconstitutional conduct. Chriceol v. Phillips, 169 F.3d 313,
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317 (5th Cir. 1999) (citing Lewis, 518 U.S. 351-54). A prisoner must show “‘actual
prejudice with respect to contemplated or existing litigation, such as the inability to meet
a filing deadline or to present a claim.’” Lewis, 518 U.S. at 349–51 (citation omitted);
Oaks v. Wainwriqht, 430 F.2d 241 (5th Cir.1970) (to succeed on a denial-of-access-to
courts claim, the plaintiff must show real detriment such as loss of right to commence,
prosecute, or file an appeal, or substantial delay in obtaining a judicial determination in a
proceeding). Absent a showing of an actual injury, a plaintiff fails to state a viable claim
for denial of access to the courts. Lewis, 518 U.S. at 349.
It is undisputed in this case that Plaintiff’s petition for habeas corpus was denied
on June 5, 2007, some two years before he alleges that his documents were lost in April
2009. As such, the time for filing an appeal with the Fifth Circuit had long expired before
the documents were allegedly lost by the Defendants. See Rule 4 fo Federal Rules of
Appellate Procedure. Thus, under the facts as sworn and testified to by Plaintiff, his
access-to-the-court claim is clearly frivolous. An action may be dismissed for failure to
state a claim when it is clear that the prisoner can prove no set of facts in support of his
claim entitling him to relief. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.2002) (citation
omitted). Plaintiff has failed to demonstrate that any action by Defendants hindered his
ability to timely appeal the denial of his petition for habeas relief. Because Plaintiff has
not established an actual injury, his access-to-courts claim must be dismissed for failure
to state an actionable claim.
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Even if Plaintiff had stated an actionable claim for denial of judicial access, he
cannot defeat summary judgment with conclusory allegations of wrongdoing. Plaintiff
fails to allege particular facts showing that any of the Defendants were personally
involved in the loss of his legal documents. There is no respondeat superior or vicarious
liability under section 1983. Ashcroft v. IQBAL, et al, 566 U.S. 662, 663 (2009) (citing
Monell v. New York City Dept. of Social Sevs., 436 U.S. 658, 691(1978)). Fifth Circuit
precedent requires personal involvement by an individual defendant in the alleged
constitutional deprivation. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312,
314 (5th Cir. 1999); Stewart v. Murphy, 174 F.3d 530, 536-37 (5th Cir. 1999).
While Plaintiff complains that Defendant Rufus Burks told him that his documents
would be transferred but failed to investigate the problem when raised, he fails to state
particular facts showing that he or any of the other defendants acted with deliberate
indifference. Mere negligence on the part of a prison official or the failure to investigate
does not rise to the level of a constitutional violation. See Dehghani v. Vogelgesang, 226
F. App'x 404, 406 (5th Cir. 2007) (holding that plaintiff's allegation that warden failed to
adequately investigate his grievance did not amount to a constitutional violation); see
also Geiger v. Jowers, 404 F.3d 371, 374–75 (5th Cir. 2005).
Further, it is well-settled that intentional and negligent deprivations of property
by state officials do not violate the due process clause of the Fourteenth Amendment if
adequate post deprivation remedies exist. See Hudson v. Palmer, 468 U.S. 517 (1984);
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Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled in part on other grounds, Daniels
v. Williams, 474 U.S. 327, 330-31 (1986)). Mississippi law provides for at least two postdeprivation remedies, including actions for conversion and claim and delivery. See
Wilson v. General Motors Acceptance Corp., 883 So.2d 56, 68-69 (Miss. 2004)(stating
the elements for a conversion claim); Miss. Code Ann. § 11-38-1 (claim and delivery).
The Fifth Circuit has long recognized that "Mississippi' s post-deprivation remedies for
civil IFP litigants satisfy due process.” Nickens v. Melton, 38 F.3d 183, 185 (5th Cir.
1994). Because the State provides Plaintiff an adequate post-deprivation remedy for the
alleged deprivation of his property, this Court finds that no due process violation exists.
Finally, Plaintiff fails to demonstrate a sufficient basis to overcome the Eleventh
Amendment and qualified immunity defenses asserted by the defendants in this case. He
has failed to allege any facts demonstrating a policy promulgated by the jail to deprive
him of property or access to the courts. As such, his claims against the Defendants in
their official capacities cannot be sustained. Woodard v. Andrus, 419 F.3d 348, 352 (5th
Cir. 2005). Likewise, Plaintiff offers no competent summary judgment evidence
demonstrating a causal connection between the purported loss of his legal documents in
2009 and his failure to timely file a notice-of-appeal in 2007. Absent evidence that
defendants improperly interfered with his constitutional right to access to courts, Plaintiff
cannot make the threshold showing necessary to overcome qualified immunity.
Hathaway v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007).
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For these reasons, the Court does hereby find that Defendants’ Motion for
Summary Judgment is well advised, and it is hereby granted. The Court also finds that a
constitutional claim has not been established and the Complaint is dismissed pursuant to
42 U.S.C. § 1915. Final Judgment in favor of all Defendants shall be entered on this date,
and the Complaint is dismissed with prejudice.
IT IS SO ORDERED, this the 12th day of September 2013.
S/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
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