United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE
a civil rights action filed pro se by the Plaintiff,
Justin Anthony Shutes, pursuant to 42 U.S.C. § 1983.
Plaintiff is currently incarcerated at the Arkansas
Department of Correction - East Arkansas Unit in Marianna,
Arkansas. 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
before the Court is Defendants' Motion for Summary
Judgment. ECF No. 24. I held a hearing on September 7, 2016,
at which time I heard Plaintiff's sworn testimony via
video conference in response to the Motion for Summary
Judgment. After careful consideration, I enter the following
Report and Recommendation.
filed his Complaint on June 23, 2014. ECF No. 1. The
Plaintiff's claims relate to incidents that occurred
during the time he was incarcerated in the Union County
Detention Center (“UCDC”). In his Complaint,
Plaintiff names Kevin Pendleton, Steven Faulkner and Kenneth
Frazier as Defendants. Plaintiff's Complaint is not clear
as to whether he sued Defendants in their official capacity,
individual capacity or both. Plaintiff alleges his
constitutional rights were violated when Defendants tampered
with his outgoing mail. ECF No. 1. Defendants filed a Motion
for Summary Judgment on August 15, 2016. ECF No. 24. In this
Motion Defendants deny they tampered with Plaintiff's
mail and they argue there has been no conduct resulting in a
violation of Plaintiff's constitutional rights.
for Defendants waived appearance at the hearing. Defendants
submitted the following exhibits for the Court's
consideration: (1) May 20, 2014 Grievance (ECF No. 25-1); (2)
Inmate Mail History (ECF No. 25-2); (3) Plaintiff's Extra
Sheet (ECF No. 25-3); Affidavit of Kevin Pendleton (ECF No.
25-4); and (5) Union County Detention Center Mail Policy (ECF
25-6). Plaintiff appeared via video conference. He did not
submit any exhibits. I asked Plaintiff to provide a sworn
statement detailing how he believes his constitutional rights
were violated in response to Defendant's Motion for
Summary Judgment. Below is a summary of his sworn testimony:
claims on May 16, 2014 he gave correction officer Defendant
Frazier two sealed envelopes to be placed in the outgoing
mail. One was addressed to 111 N. Madison and the other to
P.O. Box 56. Plaintiff alleges Defendant Frazier took the
mail to the booth where Defendant Pendleton changed the
addresses to P.O. Box 912 and P.O. Box 431 and left the
letters to be logged by the next shift. Plaintiff stated
Defendant Faulkner and other staff members were aware of the
tampering. However, Plaintiff acknowledged he did not see
Defendant Pendelton tamper with his mail and the two letters
sent out on May 16, 2014 were never returned to Plaintiff as
also claims on May 20, 2014 to have sent another sealed
envelope to 111 N. Madison - the address for the local
newspaper. Plaintiff stated the envelope contained a police
report he wanted to send to the newspaper to inform them of
issues he was having with the UCDC. Plaintiff asserts the
UCDC stamped it, opened it, held it and wrote return to
sender on the envelope. Plaintiff believes Defendant Faulkner
was responsible for this because it had green ink on it used
by Defendant Faulkner. Plaintiff also alleges he attempted to
mail another police report to the El Dorado Police Department
on May 23, 2014 and it was tampered with as well.
stated he could not say for sure who changed the addresses.
He also stated he requested a mail log from Defendants and
was provided with a print off with various addresses
Plaintiff where he had sent mail. Plaintiff stated the
addresses were different than what he initially wrote on the
letters. Other than the three dates in May of 2014, Plaintiff
acknowledged he was able to send letters out as often as he
wanted while he was incarcerated in the UCDC. Plaintiff is
requesting damages in the amount of $50, 000. He claims he
suffers from paranoid schizophrenia and he felt he was being
held captive and could not reach out to the outside world
because his mail was not delivered in May of 2014.
Court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[A] genuine issue of material fact
exists if: (1) there is a dispute of fact; (2) the disputed
fact is material to the outcome of the case; and (3) the
dispute is genuine, that is, a reasonable jury could return a
verdict for either party.” RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.
1995). The moving party has the burden of showing the absence
of a genuine issue of material fact and that they are
entitled to judgment as a matter of law, but the nonmoving
party may not rest upon mere denials or allegations in the
pleadings and must set forth specific facts to raise a
genuine issue for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
Court must view all evidence and inferences in a light most
favorable to the nonmoving party. See McCleary v.
ReliaStar Life Ins. Co.,682 F.3d 1116, 1119 (8th Cir.
2012). However, “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts ...