United States District Court, W.D. Arkansas, Hot Springs Division
TERRY L. McCOY, Plaintiff,
WARDEN KATHY BROWN, ASST. WARDEN HAVARD, and OFFICER ROBINSON (Mailroom Personnel, Defendants.
L McCoy, Plaintiff, Pro Se.
Brown, Defendant, represented by Renae Ford Hudson, Assistant
Havard, Defendant, represented by Renae Ford Hudson,
Assistant Attorney General.
Officer Robinson, Defendant, represented by Renae Ford
Hudson, Assistant Attorney General.
REPORT AND RECOMMENDATION
A. BRYANT, Magistrate Judge.
a civil rights action filed by Plaintiff, Terry L. McCoy,
pursuant to the provisions of 42 U.S.C. Â§ 1983. Plaintiff
proceeds pro se and in forma pauperis.
Pursuant to the provisions of 28 U.S.C. Â§ 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.
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
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.
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, Â¶ 7.
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.
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.
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.
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. 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 ...