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McCoy v. Brown

United States District Court, W.D. Arkansas, Hot Springs Division

June 30, 2016

TERRY L. McCOY, Plaintiff,
v.
WARDEN KATHY BROWN, ASST. WARDEN HAVARD, and OFFICER ROBINSON (Mailroom Personnel, Defendants.

          Terry L McCoy, Plaintiff, Pro Se.

          Kathy Brown, Defendant, represented by Renae Ford Hudson, Assistant Attorney General.

          Havard, Defendant, represented by Renae Ford Hudson, Assistant Attorney General.

          Officer Robinson, Defendant, represented by Renae Ford Hudson, Assistant Attorney General.

          REPORT AND RECOMMENDATION

          BARRY A. BRYANT, Magistrate Judge.

         This is a civil rights action filed by Plaintiff, Terry L. McCoy, 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.

         Currently before the Court is Defendants' Motion for Summary Judgment. ECF No. 40. A hearing was held on February 10, 2016, to allow the Plaintiff to give a sworn oral statement in response to the Motion. ECF No. 45. After careful consideration of the briefing and sworn statement of the Plaintiff, the undersigned makes the following Report and Recommendation.

         1. BACKGROUND

         During the time at issue in his Complaint, Plaintiff was incarcerated in the Omega Technical Violator Center in Malvern, Arkansas. Plaintiff filed his Complaint with the Eastern District of Arkansas on January 22, 2015. ECF No. 2. He also filed an Addendum (ECF No. 4), Motion for Summary Judgment (ECF No. 8), and Amended Complaint (ECF No. 9) before the case was transferred to this District on February 26, 2015. ECF No. 11. Plaintiff brought suit against all Defendants in their official capacity only. ECF No. 2, p. 2. Plaintiff seeks monetary damages. ECF No. 2, p. 7.

         Plaintiff attached a copy of the relevant Omega Center policy at issue to his Complaint. This mailroom policy has several annotations by Plaintiff. The section which appears pertinent to his claim states: "NO unauthorized material (etc. writing paper, newspaper clippings, newspapers, stickers, metal in cards, cards larger than 5X7, phone cards, internet/email printouts, lottery or powerball tickets.)" ECF No. 2, p. 6, ¶ 7.

         In his Complaint, Plaintiff alleges his First Amendment constitutional rights were violated in the Omega Center because Center policy "places a complete ban on inmates receiving newspapers from the publisher, which is a violation of my mail rights." ECF No. 2, p. 4. On February 2, 2015, Plaintiff filed an Addendum to his Complaint. This document is entitled a Motion in Support of Complaint, and alleges the Defendants have established a handbook for inmates which is unconstitutional because it permits control of newspapers. ECF No. 4.

         On February 24, 2015, Plaintiff filed a Motion for Summary Judgment. ECF No. 8. In his Motion, Plaintiff argues his First Amendment rights were violated between his intake date of June 5, 2014, until his discharge date of September 3, 2014, because the Omega Handbook prohibited unauthorized materials, including newspapers. Defendants responded on May 11, 2015. ECF No. 29.

         Plaintiff also filed an Amended Complaint on February 24, 2015. ECF No. 9. In his Amended Complaint, he alleges the officers/staff are intentionally delaying legal correspondence with the Court. He stated that on three occasions, his mail was not picked up or delivered when other inmates near him had mail delivered or picked up. ECF No. 9, p. 1.

         Plaintiff filed a Motion to Amend Complaint on May 21, 2015. ECF No. 31. In this Motion Plaintiff requested leave to amend his Complaint to sue Defendants in their individual capacity, removing the official capacity claims. ECF No. 31, p. 1. Plaintiff also provided additional allegations concerning exhaustion of administrative remedies. He alleges he read the Handbook on the day he was admitted. Approximately one hour after being processed into the facility, he noticed the unconstitutional policy in the Handbook. ECF No. 31, p. 3. "[W]ithin minutes" of making the finding, he informed the designated problem-solver. The designated problem-solver told him to fill out a request form and give it to Ms. Robertson, Mailroom Personnel Staff.[1] Plaintiff then alleges he filed "a grievance and request form" that same day on June 5, 2014, but did not receive a response from Robertson. ECF No. 31, p. 4. He characterized this as his Step One grievance. He alleges he filed another grievance to Defendant Havard, the Assistant Warden, when he received no response from Robertson. He characterized this as his Step Two grievance. ECF No. 31, p. 4. He then alleges he filed a Level Three ...


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