Kendrick v. Faust

• Citation: 682 F.Supp.2d 932
• Decision Date: 06 January 2010
• Docket Number: No. 1:07CV00025 JMM/BD.,1:07CV00025 JMM/BD.
• Parties: Catherynne KENDRICK, ADC # 708204, Plaintiff v. Nurzuhal FAUST, el al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

682 F.Supp.2d 932

Catherynne KENDRICK, ADC # 708204, Plaintiff
v.
Nurzuhal FAUST, el al., Defendants.

No. 1:07CV00025 JMM/BD.

United States District Court,
E.D. Arkansas,
Northern Division.

Decided: Jan. 6, 2010.

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Catherynne W. Kendrick, Wrightsville, AR, pro se.

ORDER

JAMES M. MOODY, District Judge.

The Court has received the Partial Recommended Disposition from Magistrate Judge Beth Deere. After careful review of the recommendation, the timely objections received thereto, as well as a de novo review of the record, the Court concludes that the Partial Recommended Disposition should be, and hereby is, approved and adopted as this Court's findings in all respects in its entirety.

The Court recommends that Defendants' motion for summary judgment (# 338) be GRANTED in part, and DENIED in part. Plaintiff should only be allowed to proceed on her claims that: (1) Defendants Dona-vion and Dixon violated her first amendment right to freedom of religion by destroying Plaintiff's Catholic Bible; and (2) Defendants Capel, Dixon, Zomant, and Do-navion violated her first amendment right to freedom of religion by denying her access to her rosary beads and her religious self-help book. Plaintiffs remaining claims are DISMISSED with prejudice.

PARTIAL RECOMMENDED DISPOSITION

BETH DEERE, United States

Magistrate Judge.

I. Procedures for Filing Objections:

The following partial recommended disposition has been sent to United States District Judge James M. Moody. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from receipt of the recommendations. A copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.

Mail your objections and/or request for a hearing to:

Clerk, United States District Court

Eastern District of Arkansas

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600 West Capitol Avenue, Suite A149

Little Rock, AR 72201-3325

II. Background:

Plaintiff filed this action pro se under 42 U.S.C. § 1983 against employees of the Arkansas Department of Correction ("ADC"). In her original Complaint, Plaintiff claimed: (1) that ADC officials violated her right to receive legal mail and to access the courts; (2) that ADC officials falsely accused her of an escape; and (3) that ADC officials had "interfere[d]" with "child custody."

By Order of this Court dated August 15, 2007, 2007 WL 2343835, Plaintiff's claim that ADC officials falsely accused her of escape and her parental interference claim were dismissed without prejudice. (Docket entry # 31) Plaintiff was allowed to proceed on her claim that ADC officials interfered with her legal mail and right to access the courts, but only as to those against whom she made specific allegations.

Plaintiff's First Amended Complaint and the two Addendums to her First Amended Complaint consist of nearly 250 handwritten pages. (# 66, # 71, and # 74) Reading these pleadings liberally, the Plaintiff alleges the following: (1) Defendants violated her right to access the courts by interfering with her legal mail; (2) Defendants used excessive force against her; (3) Plaintiff was subjected to terroristic threats and public humiliation by Defendants in retali ation for filing the instant lawsuit; (4) Defendants failed to protect Plaintiff from the sexual assaults by other inmates; (5) Plaintiff's conditions of confinement violate the constitutional prohibition against cruel and unusual punishment; (6) Plaintiff was forced to serve time in administrative segregation for an unwarranted charge; (7) Plaintiff was forced to stand nude in front of male correctional officers on at least one occasion, in violation of her fourth amendment rights; (8) Plaintiff was discriminated against based upon her gender; (9) Plaintiff was discriminated against based upon her religion; (10) Defendants violated multiple ADC policies in failing to respond to Plaintiff's grievances in a timely manner; (11) Defendants acted with deliberate indifference to Plaintiffs medical needs; (12) Defendants violated Plaintiffs freedom of speech; and (13) Plaintiff was denied due process in her disciplinary hearings.¹ In addition, Plaintiff again stated that Defendants falsely accused her of escape.²

An evidentiary hearing was held in this matter on October 28, 2008. At that time, Plaintiff was provided the opportunity to explain her claims and to provide evidence to support those claims.

On June 30, 2009, Defendants filed a motion for summary judgment. (# 338) In the motion, Defendants contend that each of Plaintiff's claim fail as a matter of law. Plaintiff has now responded to the Defendants' motion.³ Based upon the evidence

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presented, the Court concludes that the Defendants' motion (# 338) should be GRANTED in part, and DENIED in part.⁴

III Discussion:

A. Standard

Summary judgment is appropriate when the evidence, viewed in the light most favorable 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, 106 S.Ct, 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of Northwoods, 415 F.3d 908, 910-11 (8th Cir.2005) ("The nonmoving party may not rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.") If the opposing party fails to carry that burden or fails to establish the existence of an essential element of its case on which that party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

B. Access to the Courts

Plaintiff first claims that Defendants Capel, Dixon, McGinnis-Douglas, Donavion, Martin, and Steed violated her constitutional right to access the court by interfering with her legal mail. To establish such a violation, Plaintiff must prove that she was not given the opportunity to litigate a claim, which resulted in actual injury. White v. Kautzky, 494 F.3d 677, 680 (8th Cir.2007). To prove actual injury, the prisoner must "demonstrate that a non-frivolous legal claim [was] frustrated or... impeded." Id. An allegation, however, that prison officials opened legal mail outside of inmate's presence is sufficient to state a constitutional claim. Powells v. Minnehaha County Sheriff Dep't 198 F.3d 711, 712 (8th Cir.1999). Legal mail is considered mail to or from an inmate's attorney and identified as such. Jensen v. Klecker, 648 F.2d 1179 (8th Cir.1981).

1. Defendant Capel

Plaintiff claims that Defendant Capel took personal mail from Plaintiff and had it destroyed. Importantly, Plaintiff does not allege that Defendant Capel interfered with any of her legal mail. As a result, Plaintiff's claim that Defendant Capel violated her right to access the courts fails.⁵

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2. Defendant Dixon

Plaintiff alleges that Defendant Dixon ordered that Plaintiff's mail be confiscated. Plaintiff claims that it is a violation of ADC policy to confiscate mail without a confiscation order. Importantly, however, Plaintiff does not specifically state what mail Defendant Dixon confiscated. In the evidentiary hearing held in this matter, Plaintiff stated that she knew that Defendant Dixon confiscated her "legal mail" because she overheard Defendant Donavion telling Defendant Martin that Defendant Dixon ordered her mail confiscated. (# 338-2 at p. 11-12) Such hearsay is insufficient to defeat a motion for summary judgment. See Plamp v. Mitchell Sch. Dist No. 17-2, 565 F.3d 450, 460 (8th Cir.2009) (citing Johnson v. Baptist Med. Ctr., 97 F.3d 1070, 1073 (8th Cir.1996)).

Further, Plaintiff characterizes Defendant Dixon's alleged order that "all Kansas documents and tribunal documents" be removed from Plaintiff's cell as a confiscation order. (# 338-2 at p. 12) Again, Plaintiff fails to allege that this mail was confiscated prior to her receiving and reviewing such correspondence. Because Plaintiff has not alleged that she sustained any actual injury as a result of Defendant Dixon's conduct or that Defendant Dixon denied her the opportunity to review her mail prior to its being confiscated, Plaintiff's claims against Defendant Dixon fail as a matter of law.

3. Defendant McGinnis-Douglas

Plaintiff alleges that, as mail room supervisor, Defendant McGinnis-Douglas confiscated Plaintiff's legal mail. Plaintiff alleges that although she paid for the postage of various pieces of mail and witnessed these items being sealed, these items were never received by the courts. Plaintiff claims that Defendant McGinnis-Douglas, as the person in charge of the mail room, must have been the individual who interfered with her mail. Plaintiff cannot create a genuine issue of material fact based upon her unsupported beliefs. de Llano v. Berglund, 282 F.3d 1031, 1035-36 (8th Cir. 2002). Plaintiff must show the existence of facts in the records to create a genuine material issue. Larson v. Kempker, 414 F.3d 936, 939 (8th Cir.2005). Here, Plaintiff has failed to do so. Accordingly, Plaintiff's claims...