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Knox v. Livermore

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

September 23, 2016




         Currently before the Court is the Report and Recommendation ("R & R") (Doc. 57) by the Honorable Erin L. Setser, United States Magistrate Judge for the Western District of Arkansas, recommending that this Court deny Plaintiff Christopher George Knox's Motion for Summary Judgment (Doc. 36), grant Defendant Deputy Mike Livermore's Motion for Summary Judgment (Doc. 41), and dismiss Mr. Knox's case with prejudice. Mr. Knox has filed Objections (Doc. 61) to the R & R, prompting this Court to conduct a de nova review of the record in this case. Having completed its review of Mr. Knox's Objections and the record, the Court now sustains one of Mr. Knox's Objections, declines to adopt the R & R, denies Mr. Knox's Motion, and grants in part and denies in part Deputy Livermore's Motion, as described in further detail below.

         I. BACKGROUND

         On January 7, 2015, Mr. Knox filed a civil rights lawsuit in federal court against the Washington County Sherif's Office and others, complaining about the conditions of his confinement as an inmate at the Washington County Detention Center ("WCDC"). See Knox v. Bradley et al., Case No. 5:15-cv-5006, (Doc. 1), (W.D. Ark. Jan. 7, 2015). That case is still pending. On January 25, 2015, a "shakedown" was conducted at the WCDC, during which inmates' cells were searched for contraband while the inmates were removed from the area. During that shakedown, Deputy Livermore threw away some envelopes he found in Mr. Knox's cell that he says he believed had been hoarded in excess of what inmates were permitted to keep. After returning to his cell, Mr. Knox discovered that two pages of personal notes that he had compiled to aid himself in litigating his case had been thrown out with the excess envelopes; the notes had been stored inside one of those envelopes. After unsuccessfully going through the Detention Center's internal grievance process to try and retrieve his notes, Mr. Knox filed the instant lawsuit, claiming that the removal and destruction of his notes violated his constitutional rights.

         Mr. Knox and Deputy Livermore filed cross-motions for summary judgment in late 2015, and after initial briefing, a hearing, and further supplemental briefing were all conducted, Magistrate Judge Setser submitted her R & R on these motions in June of 2016. In her R & R, Judge Setser found that: (1) the search of Mr. Knox's cell did not violate his Fourth Amendment rights because prisoners have no legitimate expectation of privacy in their cells, see Hudson v. Palmer, 468 U.S. 517, 529-30 (1984); (2) Mr. Knox's Sixth Amendment right to counsel was not infringed, as that Amendment applies only to criminal-not civil-matters, see Wolff v. McDonnell, 418 U.S. 539, 576 (1974); (3) Mr. Knox's First Amendment right to send and receive legal mail, see Hudson, 468 U.S. at 547, was not infringed because no legal mail was actually impeded and there was no evidence that Deputy Livermore actually read Mr. Knox's notes outside Mr. Knox's presence, see Wolff, 418 U.S. at 577; (4) Mr. Knox was not unconstitutionally deprived of his property because the state of Arkansas provides an adequate post-deprivation remedy, Hudson, 468 U.S. at 536, in the form of an action for conversion, see, e.g., Elliott v. Hurst, 307 Ark. 134 (1991); and (5) Mr. Knox was not deprived of his constitutional right of access to the courts, because his ability to litigate his conditions-of-confinement case was not prejudiced by the loss of his notes, and because there was no evidence that Deputy Livermore intended to restrict Mr. Knox's access to the courts. Since the R & R found no constitutional violation had occurred, it found further that Deputy Livermore could not be liable, officially or personally, for the loss or destruction of Mr. Knox's legal notes. Accordingly, the R & R recommended denying Mr. Knox's Motion for Summary Judgment, granting Deputy Livermore's Motion for Summary Judgment, and dismissing Mr. Knox's case with prejudice.

         Mr. Knox filed objections to the R & Rin a document containing sixteen numbered paragraphs. (Doc. 61). Four of these paragraphs do not contain any true objections, but rather simply recount procedural history, recite applicable legal standards, offer prayers for relief, et cetera. See Id. at ¶¶ 1, 4, 15-16. The other twelve paragraphs contain objections that can be categorically summarized as follows: (1) Mr. Knox believes Deputy Livermore might have read Mr. Knox's legal mail outside of Mr. Knox's presence and intentionally destroyed it, see Id. at ¶¶ 3, 5-9, 12; (2) the WCDC has an official policy permitting its employees to search inmates' legal mail for contraband outside those inmates' presence, see Id. at ¶ 11; (3) Deputy Livermore's testimony in his affidavit lacks credibility because it conflicts with certain responses he previously gave to Mr. Knox's interrogatories, see Id. at ¶¶ 2-3, 5, 8, 14; (4) before issuing her R & R, Magistrate Judge Setser made statements at the hearing that were favorable or sympathetic to Mr. Knox, see Id. at ¶¶ 8, 13; and (5) Mr. Knox does not have an adequate post-deprivation remedy for the loss of his legal notes, see Id. at 10. Thusly sequenced, this Opinion and Order will discuss each of these five categorical objections in Section III after reciting the appropriate legal standard in Section II.


         As mentioned above, this Court's review of Magistrate Judge Setser's R & R is de novo. See Branch v. Martin, 886 F.2d 1043, 1045-46 (8th Cir. 1989). A party moving for summary judgment must establish both the absence of a genuine dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'/ Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 606 (8th Cir. 1999). The same standard applies where, as here, the parties have filed cross-motions for summary judgment. When there exists no genuine issue as to any material fact, "summary judgment is a useful tool whereby needless trials may be avoided, and it should not be withheld in an appropriate case." United States v. Porter, 581 F.2d 698, 703 (8th Cir. 1978). Each motion should be reviewed in its own right, however, with each non-moving party "entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record, '' with respect to the particular motion being opposed by that party. Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). In ruling on a motion for summary judgment, the Court "should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter, '' but rather should simply determine "whether a reasonable jury could return a verdict for the nonmoving party based on the evidence." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).


         The Court begins its discussion of Mr. Knox's Objections by observing that none of them appear to contest the R & R's finding that Mr. Knox's Sixth Amendment rights were not violated. Additionally, Mr. Knox does not appear to contest the R & R's finding that his Fourth Amendment rights were not violated, except insofar as he contends that his legal mail was read without a warrant. See Doc. 61, 6. As explained in the following paragraph, there is no genuine dispute that Deputy Livermore did not read Mr. Knox's legal mail. The Court agrees with the R & R's findings on Mr. Knox's claims under the Fourth and Sixth Amendments, as well with the R & R's reasons for those findings, and does not believe any further elaboration on those points is necessary here. Therefore, to the extent that Mr. Knox is claiming that his rights were violated under the Fourth or Six Amendments, those claims will be dismissed with prejudice.

         Taking up Mr. Knox's first objection that Deputy Livermore might have read Mr. Knox's legal mail outside of Mr. Knox's presence and intentionally destroyed it: the pertinent question for the Court is whether there is evidence in the record-not mere speculation-that this happened, and this Court is unable to find any. The Court has viewed the video recording of Deputy Livermore's search through Mr. Knox's belongings (Doc. 47); although there are moments when Deputy Livermore can clearly be seen handling one or more manila envelopes belonging to Mr. Knox, the Court did not see any instances when Deputy Livermore appeared to be reading the contents of any documents enclosed therein. Deputy Livermore, on the other hand, has provided evidence-in the form of testimony through his affidavit-that he did not read Mr. Knox's legal documents. (Doc. 55-2, ¶¶ 5, 8). The evidence in the record does not permit any genuine dispute as to this material fact, and therefore summary judgment in favor of Deputy Livermore is appropriate on Mr. Knox's claim that his legal documents were read outside his presence in violation of the First Amendment. And since there is no genuine dispute that Deputy Livermore did not read Mr. Knox's legal mail, Mr. Knox's second objection concerning whether Deputy Livermore read his legal mail pursuant to a WCDC official policy is moot.

         Mr. Knox's third and fourth objections are also easily overruled. Mr. Knox argues that the Magistrate Judge should have disregarded Deputy Livermore's testimony in his affidavit because it lacked credibility. However, as noted above, the legal standard that applies to summary judgment motions prohibits such credibility determinations. See, e.g., White v. Farrier, 849 F.2d 322, 326 (8th Cir. 1988) ("In rejecting Dr. Loeffelholz' opinion, the magistrate made a credibility determination that is inappropriate in ruling on a motion for summary judgment."). And although Mr. Knox argues that the Magistrate Judge's R & R is inconsistent with previous statements she made during the hearing that were more favorable to Mr. Knox's position, this is ultimately irrelevant; it is perfectly normal for different rulings in the same case to favor different parties, depending on the different issues at play, and it is perfectly reasonable for a judge's perspective on a particular issue or case to evolve as that judge becomes more informed by the law and the facts. At any rate, the Court has carefully listened to the audio recording of the hearing, and did not hear any rulings or orders therein that are inconsistent with the R & R.

         A more difficult issue is posed by Mr. Knox's fifth and final objection-that he lacks an adequate post-deprivation remedy for the taking and destruction of his legal notes. It is true, as the R & R observed, that the United States Supreme Court has held that "an unauthorized ... deprivation of property by a state employee does not constitute a violation of ... the Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533 (1984) (emphasis added). And the R & R is likewise correct that the state of Arkansas recognizes a cause of action for conversion where "any distinct act of dominion [is] wrongfully exerted over property in denial of, or inconsistent with, the owner's right." Elliott v. Hurst, 307 Ark. 134, 138 (1991).

         But note this Court's emphasis on the word "meaningful" above. In Arkansas, "[t]he proper measure of damages for conversion of property is the market value of the property at the time and place of the conversion." Id. at 140. Based on the evidence currently before it, this Court cannot imagine that the "market value" of Mr. Knox's legal notes would have been anything more than nominal, so the proper inquiry here is whether a recovery of $1.00 would be a "meaningful" post-deprivation remedy for the harm that Mr. Knox suffered by the destruction of his legal notes. Naturally, the answer to that inquiry turns on how much-and what type of-harm Mr. Knox suffered from this deprivation. This Court does not understand the essence of Mr. Knox's alleged harm here to be the ...

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