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Draft v. Warner

United States District Court, E.D. Arkansas, Eastern Division

March 15, 2018

ROBERT DRAFT ADC #160040 PLAINTIFF
v.
MARK WARNER, et al. DEFENDANTS

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following Proposed Findings and Recommendation have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         I. Introduction

         Plaintiff Robert Draft, an inmate in the custody of the East Arkansas Regional Unit (EARU) of the Arkansas Department of Correction (ADC), filed this pro se civil rights complaint against EARU Warden Gaylon Lay, EARU Deputy Warden Mark Warner, ADC Director Wendy Kelley, EARU Law Library Supervisor Lynetta Dickerson, and Law Library Supervisor Stacy Roebuck. See Doc. No. 1. Draft alleges that his constitutional rights were violated because the defendants confiscated and retained his legal documents which included discovery and the criminal trial transcript from his criminal conviction in White County Circuit Court. Id. According to Draft, he received a letter from his criminal defense attorney on April 21, 2016, notifying him that the Arkansas Court of Appeals had affirmed his conviction, and that Draft had a 78-day deadline to file a Rule 37 petition for ineffective assistance of counsel. The attorney advised Draft that the trial transcripts and discovery would be sent to the EARU. Draft asserts that an individual from his attorney's office arrived at the EARU on May 17, 2016, with 859 pages of documents which were seized as excess property by Dickerson, at the direction of Deputy Warden Warner. Draft claims that despite filing grievances and law library requests, he continued to be denied access to sufficient legal materials from his trial to properly assert his rights in a Rule 37 petition and hearing. Draft sues defendants in their official and individual capacities and seeks declaratory and injunctive relief, as well as monetary damages.

         Draft's claims for monetary damages against the defendants in their official capacities were previously dismissed. See Doc. Nos. 47 & 48. Defendants Lay, Kelley, and Roebuck were also awarded summary judgment on all Draft's claims based on Draft's failure to exhaust administrative remedies with respect to them. See Doc. Nos. 64 & 67. The remaining defendants are Warner and Dickerson (the “Defendants”).

         Before the Court are the Defendants' motion for summary judgment, supporting brief, and statement of undisputed material facts (Doc. Nos. 78-80). Draft filed a response and affidavit. See Doc. Nos. 84 & 85. The Defendants' statement of facts, and the other pleadings and exhibits in the record, establish that the material facts are not in dispute and that Defendants are entitled to summary judgment as a matter of law.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         III. Undisputed Material Facts

         The undisputed facts listed below were submitted by Defendants and are supported by the following documents attached to Defendants' statement of undisputed facts: the Declaration of Mark Warner (Doc. No. 79-1); the Declaration of Lynetta Dickerson with certain library records attached (Doc. No. 79-2); excerpts from the deposition of Draft (Doc. No. 79-3); the court docket from State v. Robert Donald Draft, case no. 73CR-14-206 (Doc. No. 79-4); an Granting Motion for Stay of Proceedings and Permission to Amend Rule 37 Petition in case no. 73CR-14-206 (Doc. No. 79-5); and Draft's Amended Petition for Post Conviction Relief in case no. 73CR-14-206 (Doc. No. 79-6). Although Draft filed a response, he did not refute these facts or challenge the admissibility of the supporting documents except to generally assert that Defendants did not follow ADC policy. See Doc. No. 84.

1. On May 17, 2016, Draft was housed in the most restrictive housing area of the EARU. Doc. No. 79-1 at ¶3.
2. Defendant Deputy Warden Warner was notified that Paul Hampton had been sent by his employer, Joe Barraza, to deliver a closed case file to inmate Draft after Draft had ...

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