United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
following Recommendation has been sent to United States
District Judge James M. Moody Jr. 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.
Kevin Linn filed a pro se complaint pursuant to 42
U.S.C. § 1983 while incarcerated at Arkansas Department
of Correction's (ADC) Wrightsville Unit (Doc. No. 2). He
has since been released. See Doc. No. 79. Linn
alleges his due process and first amendment rights were
violated. Doc. No. 2. The defendants are Ray Hobbs, former
director of the ADC; ADC disciplinary hearing officer
administrator Raymond Naylor; and four ADC employees working
at the Varner Unit: deputy warden Jeremy Andrews, chief
security officer Michael Bolden, disciplinary hearing officer
Keith Waddle, and warden Randy Watson. Id.
Linn's claims against defendants in their official
capacities were previously dismissed as were his injunctive
relief claims. See Doc. Nos. 4, 6, 102 & 104.
filed a motion for summary judgment, a brief in support, and
a statement of undisputed facts (Doc. Nos. 110-112). Linn
filed a response, declaration, and statement of disputed
material facts (Doc. Nos. 122-124). Defendants filed a reply
(Doc. No. 125). 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 judgment as a matter of law.
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).
undisputed facts listed below were submitted by defendants
and are supported by the following documents attached to
defendants' statement of undisputed facts: the Affidavit
of Jeremy Andrews (Doc. No. 112-1); the Affidavit of Ray
Hobbs (Doc. No. 112-2); Administrative Directive 13-10 (Doc.
No. 112-3 at 2-36); the February 5, 2014 letter written by
Linn (Doc. No. 112-3 at 37); External Movements sheet for
Linn (Doc. No. 112-3 at 38); and Linn's February 2014
disciplinary documentation (Doc. No. 112-3 at 39-46).
Although Linn filed a response and statement of disputed
facts, he did not refute the facts provided by defendants or
challenge the admissibility of the supporting documents
except to generally assert that defendants retaliated against
him, denied him a fair and impartial hearing, and violated
clearly established law. See Doc. No. 124.
February 5, 2014, Linn wrote the following letter to then ADC
Mr. Hobbs, I need you to have me moved off of the South Hall
of Varner unit before to prevent
bloody violence that is likely highly
likely to occur between myself and a few inmates from
neighboring two-barracks who have been harassing me and
making threats towards me while in the South Hall Dining area
and the South Hall showers. Even today (02/04/14), officer
Clorid was working One and Two Barracks and witnessed inmate
Jones out of two-barracks coming out of the South Showers as
I was heading towards the showers and Jones began making
threats and opened the showers doors back up and tell other
inmates from 2-barracks that I was coming to the showers and
to “get” me when I come in. Then another time a
2-barracks inmate turned on the water-hose hydrant to spray
across the showers room directly on me, then began
threatening to fight me when I said something to him about
it, I refuse to accept anymore of this trouble and I am
giving you an opportunity to take preventative action. Please
Id. at 3; Doc. No. 2 at 9.
February 28, 2014, Jeremy Andrews received the letter from
Hobbs. Doc. No. 112-1 at 1. The letter was forwarded to
Andrews because Linn was housed at the Varner Unit at that
Andrews and Hobbs believed Linn's letter threatened
violence based on the following two statements written by
Linn: “I need you to have me moved off of the South
Hall of Varner unit before to prevent bloody violence that is
likely highly likely to occur between myself and a few
inmates from neighboring two-barracks who have been harassing
me and making threats towards me while in the South Hall
Dining area and the South Hall showers”; and “I
refuse to accept anymore of this trouble and I am giving you
an opportunity to take preventative action.”
Id. at 1-2; Doc. No. 112-2 at 1.
Because of these statements, Andrews filed disciplinary
charges against Linn. Doc. No. 112-1 at 2.
Prior to and at the time that Linn wrote the letter to
Director Hobbs, Administrative Directive “AD”
13-10 titled “Disciplinary Rules and Regulations”
was in force. Doc. No. 112-3 at 2-36.
was charged with violating disciplinary rules 05-2, Written
Threats of Bodily Harm; 05-3, Assault-Verbal or written
threat; and 12-1, Failure to obey ...