United States District Court, M.D. Alabama, Northern Division
JAMES R. DOWNES, #281824 Plaintiff,
CARTER DAVENPORT, et al., Defendants.
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE
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. 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). 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,
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.
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.
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.
STANDARD OF REVIEW
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.
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).
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.
SUMMARY OF CLAIMS AND MATERIAL FACTS
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.
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.
makes many assertions in his various filings, but his claims
center on alleged First Amendment violations regarding the
• 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
• 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 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.
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.
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 CLAIMS FOR MONEY DAMAGES
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