United States District Court, W.D. Arkansas, Hot Springs Division
JESSE QUINCY COLLINS, JR. PLAINTIFF
SHERRIFF MIKE CASH, et al. DEFENDANTS
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation filed June 13,
2018, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. (ECF
No. 28). Judge Bryant recommends that the Court grant
Defendants' motion for summary judgment and that
Plaintiff Jesse Quincy Collins, Jr.'s remaining claims
should be dismissed with prejudice. Plaintiff has filed
objections to the Report and Recommendation. (ECF No. 29).
The Court finds the matter ripe for consideration.
March 27, 2018, Plaintiff filed this case pursuant to 42
U.S.C. § 1983, alleging that Defendants violated his
constitutional rights while he was incarcerated in the Hot
Spring County Jail (“HSCJ”). After pre-service
screening, two official capacity claims remained against
Defendants. First, Plaintiff claims that Defendants denied
him access to the mail by refusing to give him two stamped
envelopes a week and requiring that his family provide him
stamps and envelopes. Second, Plaintiff claims that the HSCJ
does not have tuberculosis lights, that he was placed in a
pod with an inmate with tuberculosis and, subsequently, that
he and other inmates became ill.
January 10, 2019, Defendants filed a motion for summary
judgment. Judge Bryant ordered Plaintiff to respond to
Defendants' motion but, despite receiving an extension of
time to do so, Plaintiff did not file a response. On July 2,
2019, Judge Bryant issued the instant Report and
Recommendation, finding that no genuine dispute of material
fact exists as to either of Plaintiff's claims.
Accordingly, Judge Bryant recommends that the Court grant
Defendants' summary judgment motion and dismiss this case
with prejudice. On July 12, 2019, Plaintiff filed objections.
reviewing a Report and Recommendation, “the specific
standard of review depends, in the first instance, upon
whether or not a party has objected.” Anderson v.
Evangelical Lutheran Good Samaritan Soc'y, 308
F.Supp.3d 1011, 1015 (N.D. Iowa 2018). Generally,
“objections must be timely and specific” to
trigger de novo review. Thompson v. Nix,
897 F.2d 356, 358-59 (8th Cir. 1990). The Court must apply a
liberal construction when determining whether pro se
objections are specific. Hudson v. Gammon, 46 F.3d
785, 786 (8th Cir. 1995).
initial matter, the Court believes that Plaintiff's
objections do not warrant de novo review because he
failed to respond to Defendants' summary judgment motion.
A party may not assert arguments, claims, or legal theories
in his objections to a magistrate judge's report and
recommendation that were not first presented to the
magistrate judge for consideration. Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1067
(8th Cir. 2012); Chaney v. Hutchinson, No.
4:18-cv-0478-BSM, 2018 WL 4134639, at *1 (E.D. Ark. Aug. 29,
2018) (citing Hylla v. Transp. Commc'ns Int'l
Union, 536 F.3d 911, 921 (8th Cir. 2008)). “[T]he
purpose of referring cases to a magistrate for recommended
disposition would be contravened if parties were allowed to
present only selected issues to the magistrate, reserving
their full panoply of contentions for the trial court.”
Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000).
To hold otherwise would effectively give a party “two
opportunities for judicial review.” Id. As
noted above, Plaintiff failed to respond to Defendants'
summary judgment motion and his objections do not address or
explain why he did not respond. Thus, the arguments contained
in his objections were not first presented to Judge Bryant
for consideration. Moreover, Plaintiff's objections are
unresponsive to the Report and Recommendation and are largely
repetitive of the allegations made in his complaint, thereby
making them insufficiently specific. Belk v. Purkett, 15
F.3d 803, 815 (8th Cir. 1994) (stating that de novo
review is not triggered by “general and conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations”); Meyer v. Haeg, No.
15-cv-2564 (SRN/HB), 2016 WL 6916797, at *2 (D. Minn. Nov.
21, 2016). Therefore, the Court finds that the objections
should not trigger de novo review.
keeping in mind the spirit of liberality with which courts
treat pro se litigants, the Court will nonetheless
examine Plaintiff's objections. Construing the objections
liberally, the Court finds for the following reasons that
Plaintiff offers neither mistake of fact nor law to warrant
departing from Judge Bryant's recommendation. The Court
will separately address Plaintiff's objections to Judge
Bryant's findings on each of his claims.
Objections for Mail-Related Claim
Bryant found that there was no genuine issue of material fact
as to Plaintiff's claim that HSCJ has a custom or policy
which results in the complete denial of mail privileges to
indigent inmates. Plaintiff objects, arguing that he was
indigent and that guards at the HSCJ told him that his family
had to bring stamped envelopes for him to use. Plaintiff
states further that he provided the Court with an affidavit
listing the names of inmates who were incarcerated with him
and who could verify his claim. Plaintiff asks that the Court
contact those inmates for confirmation.
Court is unpersuaded by this objection. As Judge Bryant
noted, although inmates have a First Amendment right to send
and receive mail, there is no right to unlimited free postage
for legal mail and no right to free postage for non-legal
mail. See Blaise v. Fenn, 48 F.3d 337, 339 (8th Cir.
1995). Judge Bryant found that the HSCJ does not have a
policy of denying mail privileges to indigent prisoners but,
rather, has a policy expressly providing that indigent
prisoners may receive writing materials and postage for two
letters per week. Plaintiff provides no evidence to the
contrary, save for the allegations in his verified complaint
that he was refused postage for two letters per week.
verified complaints are treated as affidavits for summary
judgment purposes, Roberson v. Hayti Police
Dep't. 241 F.3d 992, 994-995 (8th Cir. 2001), the
Eighth Circuit has instructed that “a properly
supported motion for summary judgment is not defeated by
self-serving affidavits.” Conolly v. Clark,
457 F.3d 872, 876 (8th Cir. 2006). Thus, Plaintiff's
self-serving allegations from his verified complaint are
insufficient to create a triable issue of material fact and
there is no other probative evidence in the record from which
the Court can find a genuine dispute of material fact as to
this claim. Accordingly, the Court agrees with Judge
Bryant that summary judgment is proper as to Plaintiff's
Objections for ...