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Downes v. Davenport

United States District Court, M.D. Alabama, Northern Division

January 25, 2018

JAMES R. DOWNES, #281824 Plaintiff,
CARTER DAVENPORT, et al., Defendants.




         Plaintiff, James R. Downes (“Downes”) is an inmate of the Alabama Department of Corrections, housed at Easterling Correctional Facility (“Easterling”) in Clio, Alabama. He filed this action under 42 U.S.C. § 1983, alleging constitutional errors in the handling and delivery of his mail at Easterling in 2015.[1] Downes names as defendants Jefferson S. Dunn (“Dunn”), Carter Davenport (“Davenport”), Derrick Carter (“Carter”), Phelix Woods (“Woods”), Sharon Blakely (“Blakely”), Walter Myers (“Myers”), Captain Cargill (“Cargill”), and Captain Lawson (“Lawson).[2] Docs. 1, 17, 18, 92, 93. The court dismissed the claims for money damages against Myers, Cargill, and Lawson; the remaining claims against Myers, Cargill, and Lawson are in their official capacities only for injunctive and declaratory relief. Docs. 99, 101. The claims against defendants Dunn, Davenport, Carter, Woods, and Blakely are in their individual and official capacities. Docs. 99, 101. Downes requests damages, injunctive relief, [3] fees, and unspecified relief “for reading my legal mail” and “for 1st Amendment rights.” Doc. 1 at 4; Doc. 3; Doc. 4 at 9-10.

         Defendants filed an answer, special report, supplemental reports, and supporting evidentiary materials addressing Downes's claims for relief. Docs. 26, 28, 30, 40, 48, 52, 55, 62, 63, 64, 75. Upon receipt of the defendants' reports, the court directed Downes to file a response, including sworn affidavits and other evidentiary materials, and specifically cautioning Downes that “at some time in the future the court may treat the defendants' reports and the plaintiff's response as a dispositive motion and response.” Doc. 65 at 1-2. Downes responded to Defendants' reports and materials. Docs. 29, 31, 35, 46, 53, 68, 69, 70, 81.

         The court will treat the defendants' exhaustion defense as a motion to dismiss, and the court will treat defendants' reports as a motion for summary judgment. Upon consideration of the motions, the plaintiff's responses, and the evidentiary materials filed in support and in opposition to the motion, the court concludes that the defendants' motion to dismiss is due to be denied and the motion for summary judgment is due to be granted.


         “The 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). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former Fed.R.Civ.P. 56 omitted; “issue” altered to “dispute” to reflect the stylistic change in the current rule). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.

         The defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Downes to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [by citing to materials in the record including affidavits, relevant documents or other materials], the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it . . . .”); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (court considers facts pled in a plaintiff's sworn complaint when considering his opposition to summary judgment”). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. The evidence must be admissible at trial, and if the nonmoving party's evidence “is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). “A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice . . . .” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Only disputes involving material facts are relevant, and what is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. In this case, Downes fails to demonstrate a requisite genuine dispute of material so as to preclude summary judgment on the claims against the defendants. See Matsushita, 475 U.S. at 587.


         The facts are viewed in the light most favorable to Downes, the nonmoving party. Downes is an inmate at Easterling. Dunn is the Commissioner of the ADOC. Docs. 17, 18. Davenport was a Correctional Warden III at Easterling in 2015. Doc. 26-2. Carter was a Correctional Warden I at Easterling in 2015. Doc. 26-3. Woods was a Correctional Lieutenant at Easterling in 2015. Doc. 26-4. Blakely was a Mail Clerk at Easterling in 2015. Doc. 26-5. Myers, Cargill, and Lawson were employed at Easterling, respectively, as the Warden, Captain of the Mail Room, and Captain of the Administration Building in 2017. Docs. 92, 93.

         Procedures for the mailroom at Easterling are governed by Standard Operating Procedure (“SOP”) 448-01. Doc. 64-2 (dated June 27, 2014). In relevant part, SOP 448-1 requires mail to be delivered generally within 72 after receipt. Id. at 4. Inmates may receive non-legal materials in envelopes larger than 6”x10”, but they are considered packages that require prior approval of the Warden or designee for distribution. Id. at 5. The envelope size restriction does not apply to “legal mail.” Id. “Legal mail” is not defined in SOP 448-01, but it is defined in SOP 448 as “[l]etters to and from attorneys, courts, judges, clerks, and other officials of the court and government agencies.” Doc. 26-1 at 2 (dated Oct. 20, 2008); Doc. 26-2 (Davenport Aff.). Under SOP 448, “[t]he Chaplain, or the Warden's designee, is responsible for reviewing all mail entering the institution for an inmate that is presumed to be religious materials.” Doc. 26-1 at 2. SOP 448-01 does not specifically address religious mail. Doc. 64-2. Under SOP 448-01, when mail is rejected, the mail clerk sends the inmate a Notification of Rejected Mail Form 448 (“Form 448”). Id. at 5. Form 448 informs the inmate he may appeal the decision to the Warden or designee and provides space to state reasons for the appeal. Id. at 9. Under SOP 448-01, “[t]he inmate may appeal the decision by returning the form to the Mailroom. [] The appeal will be reviewed by the Warden or his designee. Publications(s) ban appeals will be forwarded to the Commissioner's office for review.” Id. at 6. SOP 448-01 does not indicate the inmate may appeal to the Commissioner, and Form 448 provides no space to appeal to the Commissioner. Id. at 6, 9. If the appeal is denied, the inmate may return the materials to the sender within thirty days, after which the materials are destroyed. Id. at 6. SOP 448-01 also provides, “All publications must come directly from an established and recognized publisher/company.” Id. at 5.

         Downes makes many assertions in his various filings, but his claims center on alleged First Amendment violations regarding the following incidents:

• Outside of Downes's presence, Blakely and Woods opened and read a June 8, 2015, letter addressed to Downes from Elayne Sobel, Legal Assistant, Lewisburg Prison Project. Docs. 29-1 at 30-31; 68 at 1, 70-3. The envelope containing Sobel's June 8, 2015, letter is marked “Angus Love Attorney at Law SPECIAL MAIL, OPENLY ONLY IN THE PRESENCE OF THE INMATE.” Doc. 29-1 at 31. According to Downes, Blakely and Woods told Downes the letter was not “legal mail.” Doc. 68 at 1. Downes then received the letter. Id. The letter concerns the mailing status of a package of materials sent to Downes from the Lewisburg Prison Project on March 27, 2015. Docs. 70-4, 70-5, 70-6. Blakely denied reading any letter from the Lewisburg Prison Project, and she denied having Woods read any letter. Doc. 62 at 1-2. The log for legal mail on June 11, 2015, has Downes's name on it, but no mail is identified and no signature is on the log. Doc. 26-6 at 21. On May 22, 2015, Downes received mail in an envelope similarly marked Angus Love Attorney at Law SPECIAL MAIL, OPENLY ONLY IN THE PRESENCE OF THE INMATE, ” and it was opened in Downes's presence without incident. Docs. 29 at 1-2; 29-1 at 25-26.
• Materials were shipped from the Lewisburg Prison Project on March 27, 2015, but they were not marked “legal mail” and they were not acknowledged as received in the Easterling mailroom until May 28, 2015. Docs. 29-1 at 34, 63-1 at 4. Blakely rejected the materials on June 2, 2015, because they were in a non-standard sized envelope and needed special approval. Carter approved them on June 26, 2015. Doc. 63-1 at 1, 4. The envelope containing the materials was not marked “legal mail, ” and Sobel did not consider the materials to be legal correspondence. “It was just the bulletins that you requested and for which you paid.” Doc. 70-3. Downes maintains that Blakely delayed acknowledging the materials, covered up the delay by blocking out the postmark, and should not have withheld the materials, which he needed for his legal cases.
• Downes never received envelopes and stamps sent to him from Carolyn Ford that he intended to use to mail legal filings. Downes asserts that Blakely took or destroyed them. Blakely denies receiving the envelopes or stamps or destroying them. Docs. 48-1, 55-1, 62 at 3, 64-1.
• Downes never received a hardcover book entitled, “Packing the Court: The Rise of Judicial, ” shipped to Easterling on about April 17, 2015, directly from Edward R. Hamilton Bookseller Company. Docs. 29-1 at 32, 81-1 at 1. Downes asserts he needed the book for his legal cases. Blakely states she rejected a book for Downes from Books-a-Million on January 21, 2015, because “hard back books not allowed thru mail, ” and [h]ard back books are not allowed per the Institutional Warden.” Docs. 30-1, 63-1 at 1. Blakely states that regardless of the source, “Downes was notified that he could not receive the book because it was a hard back book.” Doc. 75-1 at 1. Blakely avers Downes said he did not want to protest receiving the hardback book he received. Id. Blakely stated a book from Books-a-Million was still in the mailroom on September 14, 2015, but on October 14, 2015, she said the box it arrived in had been destroyed. Docs. 63-1 at 1, 75. Blakely denies destroying or disposing of any mail received or rejecting at Easterling. Doc. 64-1. Downes states he never received the notice of rejection for the Books-a-Million book, and that Blakely fabricated[4] the rejection notice dated January 21, 2015. Docs. 68 at 6, 81-1 at 1. The record includes no rejection notice for a book shipped in April 2015 from Edward R. Hamilton Bookseller Company. AR 448 provides for the receipt of books from publishers, but it does not specifically forbid hardcover books. Doc. 26-1 at 8-9. Downes insists that he did not receive a rejection notice for the hardcover book he ordered. Doc. 68 at 6. The record includes no rejection notice for the book.
• Blakely rejected religious materials sent to Downes from Rabbi Sid Kleiner because the envelope was oversized and considered a package. Doc. 75-1 at 1-2. According to Blakely, the package was not addressed to the Chaplain, and “the return address did not have Rabbi on it.” Doc. 75-1 at 1. Blakely states Downes should have religious mail sent to the chaplain, who can determine if Downes may receive it. Id. at 2. Downes asserts it was mailed to the chaplain, and that the envelope included a sticker like one Downes previously received from Kleiner indicating it was from “Jewish Prisoner Outreach.” Docs. 68 at 4, 81-1 at 2. Easterling received the mail on July 13, 2015, and Blakely rejected it on July 22, 2015. Carter denied Downes's appeal of the rejection on August 6, 2015. Doc. 46 at 5. Downes then complained to the court about the denial of materials from Kleiner at August 13, 2015. Doc. 37. Carter approved the mail from Kleiner on August 20, 2015. Docs. 63-1 at 1. The record does not include a copy of the envelope Kleiner sent in July 2015.

         Blakely swears that materials sent from the Lewisburg Prison Project on March 27, 2015, were not received in the Easterling mailroom until May 28, 2015, and that she did not mark out the postmark. Docs. 62 at 2-3. Blakely's rejection of the mail indicated, “[l]egal must come from attorneys, courts, judge, clerks, and other officials of the court and government agencies.” Doc. 63-1 at 4. Woods states he advised Downes that the mail was not “legal mail, ” and because it was received in an oversized envelope, Downes “would have to write Warden Derrick Carter a request to receive the oversized envelope.” Doc. 26-4. Carter reviewed the materials and determined they were not “legal mail, ” and therefore they were subject to routine search procedures. Doc. 26-3. Carter states, “[i]n any event it was determined that the inmate could have the contents of the correspondence, ” and Downes received it on June 26, 2015. Id. Davenport agrees the materials from the Lewisburg Prison Project were not legal mail. Doc. 26-2.

         On May 18, 2015, Sobel at the Lewisburg Prison Project received Downes's letter inquiring about the status of the materials. Doc. 70-4. On May 28, 2015, and May 31, 2015, Downes submitted inmate memos, asking where the Lewisburg Prison Project materials were. Doc. 29-1 at 27-28. A reply dated June 3, 2015, with the initial “LtW, ” states, “Can't help with that. See Warden Carter.” Doc. 29-1 at 28. On June 8, 2015, Sobel received another letter from Downes, asking the whereabouts of the materials. Doc. 70-3. Sobel called Blakely, who said Downes needed to get proper authority at the institution to have the materials. Docs. 70-1, 70-3. That same day, Sobel wrote to Downes and advised him to “follow through with the proper procedure . . . .” Docs. 70-1, 70-3.


         Official capacity lawsuits are “in all respects other than name, . . . treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). State officials may not be sued in their official capacity for money damages unless the state has waived its Eleventh Amendment immunity or unless Congress has abrogated the state's immunity, and neither has occurred in this case. See Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1997) (citing Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996) (discussing abrogation by Congress); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984) (discussing Eleventh Amendment immunity); Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (Alabama has not waived Eleventh Amendment immunity)). In light of the foregoing, the defendants are state actors entitled to sovereign immunity ...

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