United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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).
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.
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.
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.
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).
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 ...