Wood v. Burns, 5:19-cv-00228-DPM-JJV
| Decision Date | 28 August 2019 |
| Docket Number | 5:19-cv-00228-DPM-JJV |
| Parties | HOWARD TOGO WOOD, JR. ADC #155339 PLAINTIFF v. THOMAS BURNS, General Counsel; and WENDY KELLEY, Director, Arkansas Department of Correction DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
HOWARD TOGO WOOD, JR. ADC #155339 PLAINTIFF
v.
THOMAS BURNS, General Counsel;
and WENDY KELLEY, Director,
Arkansas Department of Correction DEFENDANTS
5:19-cv-00228-DPM-JJV
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION
August 28, 2019
SUPPLEMENTAL PROPOSED FINDINGS AND RECOMMENDATIONS
The following supplemental recommended disposition has been sent to Chief United States District Judge D.P. Marshall Jr. 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 the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the new hearing in the form
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of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the new hearing.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing. Mail your objections and "Statement of Necessity" to:
I. INTRODUCTION
Howard Togo Wood, Jr. ("Plaintiff") is incarcerated at the Ouachita River Unit of the Arkansas Department of Correction ("ADC"). He has filed a pro se Complaint, pursuant to 42 U.S.C. § 1983, alleging Defendants ADC Director Wendy Kelley and General Counsel Thomas Burns violated his constitutional right to access the courts and receive due process of law. (Doc. No. 1.) On July 25, 2019, I issued a Recommended Disposition suggesting the Complaint be dismissed without prejudice for failure to state a claim upon which relief maybe granted. (Doc. No. 7.) Thereafter, Plaintiff filed a lengthy Objection and Supplemental Clarification. (Doc. Nos. 8-9.) At the Court's request, I am issuing this Supplemental Recommended Disposition addressing whether those pleadings alter my initial recommendation. (Doc. No. 10.) After careful review, I conclude Plaintiff has clarified some of his factual assertions but still has not pled a viable claim upon which relief may be granted. Accordingly, I recommend the Complaint be dismissed without prejudice.
II. FACTUAL ALLEGATIONS
Plaintiff was receiving disability benefits from the Veterans Administration ("VA") when he arrived at the ADC in 2013. (Doc. No. 1.) During orientation, Plaintiff received an inmate
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handbook explaining, among other things, that ADC officials would contact the VA so that agency could determine whether recently incarcerated individuals were still eligible to receive disability benefits. (Doc. No. 8 at 8.) Plaintiff signed a form acknowledging receipt of the handbook, which he believes made it a legally binding contract. (Id.) Neither prison officials nor Plaintiff sent notification to the VA, which resulted in Plaintiff receiving disability benefits for approximately three years. (Id. at 8, 61.) In February 2016, Plaintiff received a letter from the VA seeking reimbursement of approximately $75,000 in wrongfully paid benefits. (Doc. No. 1 at 11.)
On February 15, 2017, Plaintiff filed a claim with the Arkansas State Claims Commission ("ASCC") alleging ADC officials breached their contractual obligation to notify the VA of his incarceration. (Doc. No. 8 at 8.) At the time, Plaintiff was confined in the Bowie County Correction Center ("BCCC") in Texarkana, Texas. (Id. at 31-43.) However, for unknown reasons, the ADC's database said Plaintiff was in the Ouachita River Unit ("ORU") in Malvern, Arkansas.1 (Id. at 12). On March 1, 2017, Defendants Kelley and Burns filed a Motion to Dismiss the ASCC claim and mailed it to Plaintiff at the ORU.2 (Doc. No. 1 at 14.) Prison officials forwarded it to the BCCC, and it was received by Plaintiff on March 10, 2017. (Doc. No. 1 at 14.) Eleven days later, on March 21, 2017, Plaintiff filed his Response to the Motion to Dismiss, which included an allegation that Defendants...
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