Russell v. Runion

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ERIC DEMOND RUSSELL PLAINTIFF

v. Civil No. 4:22-cv-04073-SOH-BAB

SHERIFF JACKIE RUNION;

WARDEN JEFFIE WALKER; and

SERGEANT DANIEL GOLDEN DEFENDANTS

REPORT AND RECOMMENDATION

This is a civil rights action filed pro se by Plaintiff, Eric Demond Russell, under 42 U.S.C.

§ 1983. Plaintiff names as Defendants, Sheriff Jackie Runion, Warden Jeffie Walker, and Sergeant

Daniel Golden from Miller County, Arkansas. Before the Court is a Motion for Summary

Judgment filed by Defendants. (ECF No. 21). Plaintiff filed a Response (ECF No. 25). Pursuant

to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011), the Honorable Susan O. Hickey, Chief

United States District Judge, referred this case to the undersigned for the purpose of making a

Report and Recommendation.

I. BACKGROUND

Plaintiff is currently incarcerated in the Arkansas Department of Corrections – Mississippi

County Work Release Center (“ADC”) in Luxora, Arkansas. His claims in this action arise from

his incarceration in the Miller County Detention Center (“MCDC”) in Texarkana, Arkansas in July

2022. At all times relevant to the instant lawsuit, Defendant Runion was the Sheriff of Miller

County, Defendant Walker was the warden of the MCDC, and Defendant Golden was a sergeant

at MCDC. (ECF No. 1). Plaintiff was a pretrial detainee at the time of the alleged constitutional

violations. Id. at 2.

Plaintiff filed his Complaint on August 16, 2022. (ECF No. 1). Plaintiff alleges his claims

against Defendants in their official capacity only. Plaintiff claims the Defendants interfered with

his legal mail violating his constitutional rights. Specifically, Plaintiff argues Defendants: (1)

suppressed his First Amendment right to free speech; and (2) denied his Fourteenth Amendment

right to due process by interfering with his access to the courts.1 Id.at 4. Plaintiff requests

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compensatory and punitive damages as well as injunctive relief against Defendants. Id.at 9.

Specifically, Plaintiff request the monetary damages he would have received in Russell v. Pilgreen,

et al., Civil Case No. 4:22-cv-04024-SOH-BAB (W.D. Ark. 2022), which he claims Defendants

deprived him of when they failed to deliver his legal mail in a timely manner. (ECF No. 1, p. 9).

In their Motion for Summary Judgment and Brief in support, Defendants assert, even taking

all facts as alleged by Plaintiff, he has failed to establish a viable access-to-courts claim.

Defendants argue that one instance of mail tampering with no adverse legal consequences fails to

establish a violation of the Constitution. (ECF No. 22).

The factual allegations in this matter are largely undisputed save for one—whether

Plaintiff’s legal mail was delivered already opened on July 6, 2022. Plaintiff claims he received

mail from the United States District Court delivered to him on July 6, 2022 in an already opened

1 The Court notes Plaintiff also listed a Sixth Amendment right to assistance of counsel

claim in his Complaint. However, he made no factual allegations to support this claim. (ECF No.

1, p. 4). Rule 8(a) contains the general pleading rules and requires a complaint to present “a short

and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court will consider well plead factual allegations

in the Complaint as true, and construe all reasonable inferences from the pleadings in favor of the

non-moving party. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). However, while the

Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient facts

to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). As Plaintiff alleged

no facts to support his Sixth Amendment claim, the Court need not consider it here.

envelope. Non-party Officer Walker delivered the mail to Plaintiff and told Plaintiff he found it

lying on the floor in the Max C Tower. The mail was dated June 13, 2022. (ECF No. 1, p. 4).

Plaintiff alleges the delay in delivery of his legal mail caused him to miss a June 30, 2022

deadline in Pilgreen. Id. at 5. Additionally, Plaintiff claims he was also notified by the United

States District Court that mail sent to him at the MCDC was being returned to the Court even

though he was still incarcerated there. Id.

Defendants submitted two affidavits and the mail policy of the MCDC in support of their

Motion for Summary Judgment. First, non-party Golden Adams, Captain of the MCDC at the

time of Plaintiff’s complaints, states: (1) Defendant Golden investigated Plaintiff’s claim that

someone deliberately opened and interfered with his legal mail; and (2) Defendant Golden

determined Plaintiff’s claim was unfounded at that time. (ECF No. 21-1, p. 1). However,

Defendant Golden’s investigation did find:

. . . during this time period in June of 2022, several inmate’s incoming mail was placed in

the tower for staff to pass out the mail to the inmates. However, it got overlooked and was

there for some time period[,] up to several weeks[,] before it was given to the inmates.

[Plaintiff’s] legal mail was not opened and was given to him unopened[,] but it was not

given to him immediately upon receipt.

(ECF No. 21-1, pp. 1-2).

Captain Adams goes on to state:

I was made aware of the situation by [Defendant] Golden and took steps to correct it from

happening again, specifically that a particular employee assigned to specifically deliver the

mail rather than rely upon shift staff to deliver it from the tower during the shift it was

delivered to the tower. This alleviate[d] the situation from happening again.

There was no intention behind [Plaintiff] not receiving his legal mail as soon as it was

received and it was not specific to him.

(ECF No. 21-1, p. 2).

Finally, Captain Adams explained the MCDC policy is to return mail as unclaimed when

the inmate does not respond when his name is called after two attempts. Id.

Defendant Golden’s Affidavit included the same information as Captain Adams’ Affidavit.

(ECF No. 21-3).

The MCDC Mail Policy submitted in support of Defendants’ Motion for Summary

Judgment appears to be missing pages. Additionally, there is no section regarding legal mail. The

only reference to legal mail in the portion of the mail policy submitted by Defendants is under

Section 5 “MAIL PICK-UP.” In this section there is a reference to inspected outgoing legal mail

for contraband in the presence of the inmate prior to the sealing of the envelope. (ECF No. 21-2,

p. 5). However, there is no mention of incoming legal mail policies or procedures in the mail

policy submitted by Defendants.

The MCDC mail policy does include an applicable section 6 titled “MAIL

DISTRIBUTION” which states:

a. Mail shall only be delivered to the person to whom it is addressed.

b. If an inmate does not respond when his/her name is called, the correspondence shall be

returned to the Sergeant’s Office and delivery attempted once more later. After such

time it shall be considered “unclaimed.”

c. Unclaimed mail shall be returned to the sender.

(ECF No. 21-2, p. 5).

Plaintiff responded to Defendants’ Motion on April 13, 2023. (ECF No. 25). In his

Response, Plaintiff included: (1) his “Statement of Undisputed Facts;” (2) Plaintiff’s Affidavit; (3)

multiple grievances Plaintiff filed regarding his claims; and (4) the MCDC Policy on “Inmate

Rights, Complaints & Grievances SOP 09.01.” In Plaintiff’s Affidavit attached to his Response,

he specifically disputed the fact his legal mail delivered on July 6, 2022 was unopened. (ECF No.

25, p. 8). He also states in his sworn Statements of Undisputed Facts that he requested “corrections

officer Walker’s statement” through the discovery process and it was never provided. (ECF No.

25, p.2). According to Plaintiff, corrections officer Walker is the jail employee that delivered his

opened legal mail, and his statement would prove the fact the mail was opened prior to delivery.2

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Further, Plaintiff points out there is no incident report to document Defendant Golden’s alleged

investigation of the incident. (ECF No. 25, p. 2). Plaintiff also explains the deadline he missed in

Pilgreen, due to the delay in delivery of the legal mail, was the deadline for filing a notice of

appeal. (ECF No. 25, p. 1).

Finally, in his Response, Plaintiff argues Defendants mishandling and failing to timely

deliver his legal mail was done in bad faith and in violation of his First and Fourteenth Amendment

rights. Plaintiff acknowledges the MCDC Mail Policy and Procedure, but he argues the MCDC

employees do not follow this written procedure. Plaintiff requests MCDC employees to follow

the stated procedures. (ECF No. 25).

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, the record "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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once

a party moving for summary judgment has made a sufficient showing, the burden rests with the

non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine

issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.

1999).

2 Corrections Officer Walker is not the same person as Defendant Warden Jeffie Walker.

The non-moving party "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient

evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“When opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007).

Under Section 1983, a defendant may be sued in either his personal capacity, or in his

official capacity, or claims may be stated against a defendant in both his personal and his official

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See Gorman

v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may be raised as a

defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff

must allege that the defendant acted under color of state law, and that the actor violated a right,

privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The deprivation must be intentional;

mere negligence will not suffice to state a claim for deprivation of a constitutional right under

Section 1983. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344

(1986).

Official capacity claims are “functionally equivalent to a suit against the employing

governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). To

sustain an official capacity claim against such an entity a plaintiff “must show that there was a

policy, custom, or official action that inflicted an actionable injury.” Johnson v. Hamilton, 452

F.3d 967, 973 (8th Cir. 2006). Thus, Plaintiff's official capacity claims against Defendant are

“functionally equivalent” to alleging her employer, Little River County, had “a policy, custom, or

[took an] official action” that deprived him of his constitutional rights. Veatch, 627 F.3d at 1275;

Johnson, 452 F.3d at 973.

To establish a claim for “custom” liability, Plaintiff must demonstrate:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the governmental entity's employees;

2) Deliberate indifference to or tacit authorization of such conduct by the governmental

entity's policymaking officials after notice to the official of that misconduct; and

3) That Plaintiff was injured by acts pursuant to the government entity's custom, i.e., that

the custom was a moving force behind the constitutional violation.

Johnson v. Douglas County Medical Dept., 725 F.3d 825, p. (8th Cir. 2013). “A single deviation

from a written, official policy does not prove a conflicting custom.” Id. (quoting Jane Doe A v.

Special Sch. Dist. of St. Louis, 901 F.2d 642, 646 (8th Cir. 1990)).

III. DISCUSSION

Plaintiff claims Defendants interfered with his legal mail while he was incarcerated in the

MCDC. Specifically, he asserts Defendants are responsible for holding his mail for approximately

one month causing him to miss an appeal deadline, and when this legal mail was finally delivered,

it was already opened. (ECF No. 1). Additionally, in his Response to Summary Judgment,

Plaintiff claims his mail from the United States District Court was being returned to the Court

instead of delivered to him, and he argues that Defendants did not follow their own mail delivery

policies. (ECF No. 25).

A. Delay in delivery of opened legal mail

Inmates have a First Amendment right of free speech to send and receive mail. Hudson v.

Palmer, 468 U.S. 517, 547 (1984). “The fact of confinement and the needs of the penal institution

impose limitations on constitutional rights, including those derived from the First Amendment.”

Jones v. North Carolina Prisoners' Labr Union, 433 U.S. 119, 125 (1977). “Prisoners' First

Amendment rights encompass the right to be free from certain interference with mail

correspondence . . ..” Davis v. Norris, 249 F.3d 800, 801 (8th Cir. 2001). “Interference with legal

mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by

the First and Fourteenth Amendments to the U.S. Constitution.” Davis v. Goord, 320 F.3d 346,

351 (2d Cir. 2003). “A prison policy that obstructs privileged inmate mail can violate inmates'

right of access to the courts.” Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998).

However, an inmate cannot prevail on an access-to-courts claim unless he can demonstrate

he suffered prejudice or actual injury as a result of the prison officials’ conduct. See Lewis v.

Casey, 518 U.S. 343, 351-2 (1996); see also Farver v. Vilches, 155 F.3d 978, 979-80 (8th Cir.

1998) (per curiam); Klinger v. Dep't of Corr., 107 F.3d 609, 617 (8th Cir. 1997) (to prevail on

access-to-courts claim, inmate must show actual injury or prejudice even if denial of access to

library is complete and systematic); McMaster v. Pung, 984 F.2d 948, 953 (8th Cir. 1993). “To

prove a violation of the right of meaningful access to the courts, a prisoner must establish the

[official] has not provided an opportunity to litigate a claim challenging the prisoner’s sentence or

conditions of confinement in a court of law, which resulted in actual injury, that is, the hindrance

of a nonfrivolous and arguably meritorious underlying legal claim.’” Hartsfield v. Nichols, 511

F.3d 826, 831 (8th Cir. 2008) (citations omitted). The Eighth Circuit applies this injury

requirement to pretrial detainees as well as convicted inmates. See Smith v. Boyd, 945 F.2d 1041,

1043 (8th Cir. 1991).

Here, while Plaintiff claims the delay in the delivery of his legal mail caused him to miss

an appeal deadline in Russell v. Pilgreen, et al., Civil No. 4:22-cv-04024 (W.D. Ark. Nov. 3, 2022),

a review of the referenced case shows no such prejudice occurred.3 Pilgreen involved a Section

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1983 claim asserted by Plaintiff against narcotics officers in Texarkana, Arkansas for an alleged

illegal search and seizure. Id. On June 13, 2022, the Court issued a Report and Recommendation

recommending the case be stayed and administratively terminated, pursuant to the Younger

doctrine, until Plaintiff’s state criminal case could be finalized. Pilgreen, ECF No. 14. Plaintiff’s

objection deadline for the Report and Recommendation was June 30, 2022. Id. Plaintiff did not

file objections, and Chief Judge Susan O. Hickey adopted the Report and Recommendation staying

and administratively terminating the case on July 12, 2022. Pilgreen, ECF No. 15. In the adoption

Order, Judge Hickey provided Plaintiff thirty (30) days after the final resolution of his state

criminal case to file a motion to reopen Pilgreen. Id. Plaintiff filed a Motion to reopen Pilgreen

3 See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial

notice of judicial opinions and public records).

on October 12, 2023. Pilgreen, ECF No. 17. Judge Hickey denied this Motion because Plaintiff’s

criminal case was adjudicated and finalized on August 29, 2022—more than thirty (30) days prior

to Plaintiff’s Motion to reopen. Judge Hickey then dismissed Plaintiff’s claims without prejudice.

Id.

It is undisputed here that Plaintiff received his legal mail from the United States District

Court on July 6, 2022—six days after his Report and Recommendation response deadline.4

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However, the docket in Pilgreen is also clear that Plaintiff did not suffer prejudice from this

delayed delivery. While Plaintiff was unable to meet his objection deadline, there is no evidence

to suggest his objection would have changed Judge Hickey’s decision to stay and administratively

terminate his case. An administrative termination was clearly warranted under the Younger

doctrine in the Pilgreen case.5 Furthermore, the administrative termination was not a dismissal of

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Plaintiff’s claims, and Plaintiff had another opportunity to pursue the claims had he timely filed a

Motion to Reopen the case in September 2022. Plaintiff made no assertion that Defendants caused

his belated filing of the Motion to Reopen the Pilgreen case. Finally, Plaintiff’s claims in Pilgreen

were dismissed without prejudice on November 2, 2022. Plaintiff could have refiled his Pilgreen

claims had he wished to do so. Accordingly, based on the summary judgment record and the

public record of Pilgreen, the Court finds Plaintiff did not suffer prejudice or actual injury by

4 The Court presumes this is the appeal notice deadline Plaintiff references in his Complaint

as there were no applicable appeal timelines in June and July 2022 in the Pilgreen case.

5 Federal courts must abstain from hearing a case when (1) there is an ongoing state judicial

proceeding which (2) implicates important state interests, and when (3) that proceeding affords an

adequate opportunity to raise the federal questions presented. Younger v. Harris, 401 U.S. 37

(1971). Plaintiff had ongoing state criminal proceedings pending at the time, and Plaintiff had

raised the exact constitutional claims in his pending state criminal case. See State v. Russell, No.

46CR-20-634-1.

Defendants’ delay of delivery or opening of his legal mail dated June 13, 2022. See Hartsfield,

511 F.3d at 831.

As Defendants correctly argue, this Court has consistently held that a one-time opening of

legal mail which did not prejudice Plaintiff or cause him actual injury, fails to state a cognizable

constitutional violation. See Williams v. Runion, Civil No. 4:18-cv-04059, 2019 WL 5588750, at

*7 (W.D. Ark. Oct. 11, 2019), report and recommendation adopted, Civil No. 4:18-cv-04059, 2019

WL 5580962 (W.D. Ark. Oct. 29, 2019); Badger v. Loe, Civil No. 1:18-cv-01038, 2019 WL

3483131, at *12 (W.D. Ark. July 31, 2019); Solis v. Jones-Foster, Civil No. 4:19-cv-0425, 2019

WL 3294801, at 2 (W.D. Ark. July 2, 2019), report and recommendation adopted, Civil No. 4:19-

cv-04025, 2019 WL 3292353; and Solomon v. Campbell, Civil No. 4:18-cv-04001, 2019 WL

937932, at *5 (W.D. Ark. Feb. 26, 2019), appeal dismissed, Civil No. 19-1644, 2019 WL 4655952

(8th Cir. June 4, 2019).

Accordingly, Plaintiff has failed to state a cognizable access-to-courts claim in violation of

his constitutional rights based on the delayed delivery of opened legal mail.

B. Mail returned to the U.S. District Court

Plaintiff also claims his legal mail was returned to the United States District Court rather

than delivered to him at the MCDC. There is no evidence on the record or the docket sheet in

Pilgreen to support Plaintiff’s allegation. The Clerk of the U.S. District Court in this district notes

on the docket when mail is returned as undeliverable. There are no such notations on the Pilgreen

docket. The Court will not adopt Plaintiff’s allegations of returned mail as fact here because they

are blatantly contradicted by the Pilgreen docket. See Scott v. Harris, 550 U.S. 372, 380 (2007).

Furthermore, as stated above, Plaintiff has failed to demonstrate any prejudice or actual

injury caused by Defendants actions. Accordingly, Plaintiff has failed to state a cognizable claim

regarding the return of legal mail to the U.S. District Court.

C. Mail policy

Plaintiff also argues that Defendants did not follow the MCDC mail delivery policies. It

is well settled that prisoners do not have a constitutional right to enforce compliance with internal

prison rules or regulations. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (“there is no

federal constitutional liberty interest in having ... prison officials follow prison regulations”);

Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (“there is no [section] 1983 liability for

violating prison policy”). Accordingly, Plaintiff fails to state a cognizable claim regarding the

failure to follow the mail policy.

D. Official capacity

As the Court has determined Plaintiff failed to state any cognizable constitutional claims

against any of the Defendants, there can be no official capacity claims. See McCoy v. City of

Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth Circuit has consistently recognized

without an underlying substantive constitutional violation against a defendant in their individual

capacity, a plaintiff cannot be successful on an official capacity claim against that defendant’s

employer). Accordingly, all of Plaintiff’s claims fail as a matter of law and Defendants’ Motion

for Summary Judgment should be granted.

IV. CONCLUSION

For the reasons stated above, I recommend Defendants’ Motion for Summary Judgment

(ECF No. 21) be GRANTED and the claims against them be DISMISSED WITH PREJUDICE.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 30th day of November 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE