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Harrison v. Stovall

United States District Court, W.D. Arkansas, Texarkana Division

July 17, 2014

PHILLIP HARRISON, Plaintiff,
v.
SHERIFF RON STOVALL; DUANE CANNON; MARTY BRAZZELL; AND JOHNNY WELCH, Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

BARRY A. BRYANT, Magistrate Judge.

This is a civil rights action filed by Plaintiff, Phillip Harrison, pursuant to the provisions of 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a report and recommendation on whether any triable issues exist in this matter. An evidentiary hearing was held on March 13, 2014.

The events at issue here, occurred while Plaintiff was incarcerated in the Miller County Detention Center ("MCDC"). Plaintiff is no longer incarcerated. Plaintiff alleges his constitutional rights were violated when Separate Defendants, Sheriff Ron Stovall, former Warden Duane Cannon, Warden Marty Brazzell, and Sergeant Johnny Welch, denied him access to the courts. Plaintiff has brought this action against Separate Defendants in both their official and individual capacities.[1]

I. BACKGROUND AND EVIDENCE

At the evidentiary hearing, the testimony of the following witnesses was heard: (1) Plaintiff Phillip Harrison; (2) Sheriff Ron Stovall; (3) Marty Brazzell; and (4) Duane Cannon. For purposes of this Report and Recommendation, the testimony of the witnesses will be briefly summarized. Defendant Welch was not present at the hearing. The Court noted Plaintiff's objections to this fact.

Plaintiff Phillip Harrison

Plaintiff was incarcerated in the MCDC from March 2011 through August 2011. He entered a guilty plea in his criminal proceedings on April 12, 2011. Plaintiff was indigent while incarcerated. Plaintiff testified he was not provided paper, envelopes, or legal material while incarcerated in the MCDC. According to Plaintiff, the MCDC policy allotted two sheets of paper and two envelopes to each inmate every week but sometimes he would not receive this paper and envelopes. Plaintiff was sometimes denied paper and envelopes when he requested them and sometimes he received them two weeks later. This practice occurred while Plaintiff was a pretrial detainee and after he was convicted.

Plaintiff also testified he was unable to recant his guilty plea after his conviction because of the inadequate amount of paper and envelopes he received at the MCDC. Further, Plaintiff's Rule 37 Motion for Post Conviction Relief ("Rule 37 Motion") filed in Miller County Circuit Court ("State Court"), was untimely filed because Plaintiff did not have the paper to write the courts and he was unable to do legal research at the MCDC. According to Plaintiff, he was unable to challenge his conviction based on speedy trial issues because of the insufficient paper and envelopes and the lack of law library access.

Plaintiff filed the instant lawsuit while still incarcerated in the MCDC. Plaintiff testified that he borrowed and traded for paper to file this lawsuit.

Plaintiff also testified that he had a public defender during his criminal proceedings, including his sentencing hearing. Plaintiff further testified he was given a chance to speak at this hearing prior to his sentencing. Plaintiff also testified that he informed his public defender that he wanted to withdraw his guilty plea, and that Plaintiff believed there was a speedy trial issue with his criminal case. Additionally, Plaintiff testified he had no contact with his public defender after the sentencing phase of is criminal proceedings. Plaintiff also testified he is currently on parol and has a habeas petition pending in this Court.

Defendants' Exhibit 1 is the State Court's Order Denying Plaintiff's Rule 37 Motion ("State Order"). ECF No. 27-3. Plaintiff was transferred to the Arkansas Department of Corrections in August 2011, and filed the Rule 37 Motion in September 2011. Plaintiff testified that the July date on the Rule 37 Motion is incorrect because Plaintiff attempted to backdate it.

Sheriff Ron Stovall

Sheriff Stovall is the current sheriff of Miller County and was the Sheriff of Miller County while Plaintiff was incarcerated at the MCDC. Sheriff Stovall testified he did not recall receiving any letters from Plaintiff or forwarding any letters from Plaintiff to the warden. Sheriff Stovall also testified that he typically dates and initials letters that he receives and then contacts the ...


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