Linn v. Andrews

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The 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.

         DISPOSITION

         I. Introduction

         Plaintiff 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.

         Defendants 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.

         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 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 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.

         1. On February 5, 2014, Linn wrote the following letter to then ADC Director Hobbs:

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 respond.

K. Linn

Id. at 3; Doc. No. 2 at 9.

         2. On 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 time. Id.

         3. 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.

         4. Because of these statements, Andrews filed disciplinary charges against Linn. Doc. No. 112-1 at 2.

         5. 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.

         6. Linn 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 ...