United States District Court, E.D. Arkansas, Western Division
DAVID P. MOORE, SR. ADC # 112305, Plaintiff,
ANDY SHOCK, Sheriff, Faulkner County; et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
JOE J. VOLPE, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge J. Leon Holmes. 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 a 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 new hearing for this purpose before either the District Judge or Magistrate Judge, you must, at the time you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the new 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 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:
Plaintiff, David Moore, was an inmate at the East Arkansas Regional Unit (EARU) of the Arkansas Department of Correction. From July 9, 2013, to September 26, 2013, due to prison overcrowding, he was housed at the Faulkner County Detention Center (FCDC) (Doc. No. 2 at 4). He filed a pro se Complaint (Doc. No. 2) pursuant to 42 U.S.C. § 1983, alleging Defendants violated his constitutional rights. He subsequently filed an Amended Complaint and Second Amended Complaint (Doc. Nos. 6, 14). Now, Defendants have filed a Motion for Summary Judgment ("Motion") (Doc. No. 72). Plaintiff has not responded and the matter is ripe for a decision.
Three inmates escaped from the FCDC on August 17, 2013 and, in so doing, damaged the recreation yard fence (Doc. No. 74, Ex A at ¶ 6). Upon discovery of the escape, the facility entered lock down (Doc. No. 74, Ex A at ¶ 7). It is undisputed that several inmate privileges were suspended as part of the lock down, including television, telephone, and visitation ( Id. at ¶ 8). Plaintiff states commissary and outdoor recreation privileges were also suspended after the escape (Doc. No. 14 at 3). Defendants deny the escape affected the receipt of commissary (Doc. No. 74, Ex A at ¶ 10). They also contend that outdoor recreation was suspended only so that repairs could be performed on the fence ( Id. at ¶ 15). Plaintiff alleges the suspension of the aforementioned privileges violated his due process rights (Doc. No. 6 at ¶ 21).
Plaintiff also alleges that his outgoing and incoming mail was intercepted and read before being delivered (Doc. No. 14 at 11-13). Specifically, he claims that a letter addressed to a private attorney was read by Defendant Seth Ferguson ( Id. at 11). Thereafter, Plaintiff claims he was warned that all of his outgoing legal mail would be read and, depending on its contents, forwarded to Defendant John Randall for an ultimate determination as to whether it should be mailed ( Id. ). A subsequent mailing to the same attorney allegedly prompted a warning from Defendant Jonathan Fuentes that Plaintiff's letter would be screened for "key words and phrases" which, if detected, would require the letter to be forwarded to Defendant Randall ( Id. at 12). Lastly, Plaintiff alleges that a § 1983 packet addressed to him from this Court was delivered to him already opened with filing instructions and in forma pauperis materials missing ( Id. ). Plaintiff alleges these actions violated his constitutional rights by denying him access to the courts (Doc. No. 6 at ¶ 23).
Finally, Plaintiff alleges that Defendant Andy Shock told inmates after the escape to "enjoy the blended meals" (Doc. No. 2 at 5). This is Plaintiff's only allegation of personal involvement against Defendant Shock and Plaintiff does not ...